[Redacted], Jona R., 1 Complainant,v.Antony Blinken, Secretary, Department of State, Agency.

Equal Employment Opportunity Commission

Oct 6, 2022

Appeal No. 2020004549 (E.E.O.C. Oct. 6, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Jona R.,1 Complainant, v. Antony Blinken, Secretary, Department of State, Agency. Request No. 2022003028 Appeal No. 2020004549 Agency No. DOS006814 DECISION ON REQUEST FOR RECONSIDERATION Complainant timely requested that the Equal Employment Opportunity Commission (EEOC or Commission) reconsider its decision in EEOC Appeal No. 2020004549 (March 31, 2022). EEOC regulations provide that the Commission may, in its discretion, grant a request to reconsider any previous Commission decision issued pursuant to 29 C.F.R. § 1614.405(a), where the requesting party demonstrates that: (1) the appellate decision involved a clearly erroneous interpretation of material fact or law; or (2) the appellate decision will have a substantial impact on the policies, practices, or operations of the agency. See 29 C.F.R. § 1614.405(c). During the period at issue, Complainant worked as a GS-12 Administrative Specialist in the Agency’s Bureau of Diplomatic Security, Secretary’s Protective Detail in Washington, D.C. On February 7, 2014, Complainant filed an EEO complaint alleging that the Agency discriminated against her based on disability when, from October 29, 2013, the Agency failed to provide her with a reasonable accommodation for her disability. On May 9, 2018, the Agency issued a final decision finding that Complainant did not establish that she was denied a reasonable accommodation for her disability. Complainant appealed. 1 This case has been randomly assigned a pseudonym which will replace Complainant’s name when the decision is published to non-parties and the Commission’s website. 2022003028 2 In EEOC Appeal No. 0120182063 (Jan. 23, 2020), we concluded that the Agency violated the Rehabilitation Act when it failed to provide Complainant with a reasonable accommodation. The decision found that Complainant demonstrated that she needed flexible, situational telework because she had a medical condition that caused periodic symptoms that negatively impacted her ability to commute or work in the office when experiencing symptoms. The decision further determined the Agency failed to establish that situational telework would have imposed an undue hardship. Jona R. v. Dep’t of State, Pursuant to the finding of discrimination, we ordered the Agency to conduct a supplemental investigation on the issue of Complainant’s entitlement to compensatory damages. The Commission also ordered the Agency to reasonably accommodate Complainant with a flexible telework schedule and a telework agreement allowing situational telework if she was employed in the same position. The Commission did not order the Agency to calculate back pay, but ordered the Agency to “restore any leave or pay lost (if any) by Complainant because of its failure to timely provide her with a reasonable accommodation.” On July 7, 2020, the Agency issued a final decision on compensatory damages, awarding Complainant $5,825 in pecuniary compensatory damages and $20,000 in non-pecuniary compensatory damages. Regarding back pay, the Agency’s final decision on compensatory damages stated that, although back pay and front pay do not constitute compensatory damages, it would briefly address the matter. The Agency noted that back pay is a specific remedy codified at 5 U.S.C. 5596 et seq. and that its implementation for federal employees is outlined in 29 C.F.R. § 1614.501 and 5 C.F.R. § 550.805. According to the Agency, EEOC did not order back pay and the reference to “pay lost (if any)” should not be construed as an order for back pay. The Agency concluded that Complainant was not entitled to back pay or front pay and stated that it would address the Order to restore leave in a separate document. On May 7, 2021, the Agency issued a decision on leave restoration. The Agency found that the relevant time period was October 29, 2013 to April 14, 2014 because Complainant stopped coming to work and was charged Absent Without Leave (AWOL) beginning April 14, 2014. The Agency noted that Complainant filed a second EEO complaint in 2015, Agency No. DOS- 0006-15, and Complainant was issued appeal rights to the Merit Systems Protection Board (MSPB) on her claim that she was subjected to a constructive suspension because of her AWOL status. The Agency further noted that Complainant filed another EEO complaint in 2016 concerning her termination, Agency No. DOS-0399-16 and that Complainant did not appeal its final decision finding no discrimination to EEOC. The Agency found that any associated remedies regarding the constructive suspension would have been before the MSPB and with the EEOC regarding its termination claim. The Agency determined that 67.30 hours of sick leave during the relevant period was related to her inability to telework. The Agency stated that it would coordinate with the Office of Personnel Management (OPM) to see if the 67.30 hours of sick leave would affect Complainant’s retirement annuity. The Agency again stated that it was not ordered to provide back pay. 2022003028 3 The Agency found that Complainant was not entitled to lost pay because from October 29, 2013 through April 14, 2014, she was compensated for all work hours with regular pay, sick leave, annual leave, or holiday pay. The Agency found that Complainant was not entitled to front pay, noting that Complainant’s disability retirement was approved retroactive to May 3, 2014, that Social Security approved Complainant for disability benefits retroactive to October 2014, and that she stated in her affidavit that she was totally disabled and unable to work. Complainant filed appeals from the Agency’s decision on leave restoration. In EEOC Appeal No. 2020004549 (March 31, 2022), we awarded Complainant $60,000 in non- pecuniary compensatory damages and $6,191.76 in pecuniary damages. Regarding leave restoration, we concluded the Agency properly determined that Complainant was entitled to reinstatement of 67.30 hours of sick leave, and the Agency provided documentation that it reported this to OPM in 2021 for recalculation of Complainant’s annuity. Finally, we found that EEOC Appeal No. 0120182063 did not award Complainant back pay or front pay. If Complainant believed that this prior decision limited her ability to recover damages, Complainant could have filed a request for reconsideration, which she did not do. Complainant filed the instant request for reconsideration specifically reiterating that she is entitled to back pay and front pay. We now find that EEOC Appeal No. 2020004549 properly found that EEOC Appeal No. 0120182063 did not award back pay and front pay. We further find that the Agency properly found that for the relevant time period (October 2013-April 2014 until Complainant was deemed AWOL), Complainant was fully compensated through sick leave, annual leave, or holiday pay. Moreover, EEOC Appeal No. 2020004549 properly noted that the Agency reported to OPM that Complainant was entitled to reinstatement of 67.30 hours of sick leave for recalculation of her annuity. Accordingly, we deny Complainant’s request and we REMAND this matter to the Agency to take the corrective action as set forth in the ORDER below. ORDER To the extent the Agency has not already done so, we ORDER it to take the following actions within sixty (60) calendar days from the date this decision is issued: 1. Pay Complainant $6,191.76, less any amount already paid to Complainant as pecuniary damages; and 2. Pay Complainant $60,000, less any amount already paid to Complainant as nonpecuniary compensatory damages. 2022003028 4 The Agency is further directed to submit a report of compliance in digital format as provided in the statement entitled “Implementation of the Commission’s Decision.” The report shall be submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). IMPLEMENTATION OF THE COMMISSION’S DECISION (K0719) Under 29 C.F.R. § 1614.405(c) and § 1614.502, compliance with the Commission’s corrective action is mandatory. Within seven (7) calendar days of the completion of each ordered corrective action, the Agency shall submit via the Federal Sector EEO Portal (FedSEP) supporting documents in the digital format required by the Commission, referencing the compliance docket number under which compliance was being monitored. Once all compliance is complete, the Agency shall submit via FedSEP a final compliance report in the digital format required by the Commission. See 29 C.F.R. § 1614.403(g). The Agency’s final report must contain supporting documentation when previously not uploaded, and the Agency must send a copy of all submissions to the Complainant and his/her representative. If the Agency does not comply with the Commission’s order, the Complainant may petition the Commission for enforcement of the order. 29 C.F.R. § 1614.503(a). The Complainant also has the right to file a civil action to enforce compliance with the Commission’s order prior to or following an administrative petition for enforcement. See 29 C.F.R. §§ 1614.407, 1614.408, and 29 C.F.R. § 1614.503(g). Alternatively, the Complainant has the right to file a civil action on the underlying complaint in accordance with the paragraph below entitled “Right to File a Civil Action.” 29 C.F.R. §§ 1614.407 and 1614.408. A civil action for enforcement or a civil action on the underlying complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999). If the Complainant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R. § 1614.409. Failure by an agency to either file a compliance report or implement any of the orders set forth in this decision, without good cause shown, may result in the referral of this matter to the Office of Special Counsel pursuant to 29 C.F.R. § 1614.503(f) for enforcement by that agency. COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (R0610) This is a decision requiring the Agency to continue its administrative processing of your complaint. However, if you wish to file a civil action, you have the right to file such action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. In the alternative, you may file a civil action after one hundred and eighty (180) calendar days of the date you filed your complaint with the Agency, or filed your appeal with the Commission. If you file a civil action, you must name as the defendant in the complaint the person who is the official Agency head or department head, identifying that person by his or her full name and official title. Failure to do so may result in the dismissal of your case in court. “Agency” or “department” means the national organization, and not the local office, facility or department in which you work. Filing a civil action will terminate the administrative processing of your complaint. 2022003028 5 RIGHT TO REQUEST COUNSEL (Z0815) If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant’s Right to File a Civil Action for the specific time limits). FOR THE COMMISSION: ______________________________ Carlton M. Hadden’s signature Carlton M. Hadden, Director Office of Federal Operations October 6, 2022 Date