[Redacted], Sallie M., 1 Complainant,v.Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

Jul 12, 2021

Appeal No. 2020001493 (E.E.O.C. Jul. 12, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Sallie M.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency. Appeal No. 2020001493 Hearing No. 560-2016-00129X Agency No. 2003-0686-2014104182 DISMISSAL OF APPEAL Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's final order dated November 13, 2019, finding unlawful employment discrimination and awarding remedies for violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq. and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. At the time of events giving rise to this complaint, Complainant worked as a Health Administration Services Chief, GS-13 at the Agency’s Medical Center in Leavenworth, Kansas. On September 9, 2019, Complainant filed a formal complaint in which she alleged that the Agency discriminated against her on the bases of race (Native American) and age (57) by not selecting her for the position of Medical Administration Officer. The Agency initially dismissed the complaint, but in Complainant v. Dep’t of Veterans Affairs, EEOC Appeal No. 0120151243 (July 2, 2015), the Commission reversed the dismissal and remanded the matter for further processing. Following the Agency’s investigation, Complainant requested a hearing before an EEOC Administrative Judge (AJ). The AJ assigned to the matter held a hearing and issued a decision finding that Complainant had been subjected to discrimination as alleged. 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. 2020001493 2 The Agency subsequently issued a final order in which it fully implemented the AJ’s decision and the relief ordered. Among the remedies awarded, the AJ ordered the Agency to restore Complainant to a position where she would have been were it not for the unlawful discrimination; pay Complainant $2,000 in compensatory damages; pay $6,942.50 in attorney’s fees to the estate of her deceased attorney of record; provide training to and consider discipling the Assistant Director responsible for the discriminatory nonselection; and to post a notice at the facility. Complainant filed an appeal on December 2, 2019. In her appeal, she reported that her attorney had died and that she was unable to locate his estate. She requested that the AJ’s order be clarified so that payment of attorney’s fees could be made directly to her rather than to her attorney’s estate. The Agency subsequently submitted documentation demonstrating that all of the remedies ordered in the Agency’s final order had been implemented. In addition, the Agency explained that, with Complainant’s assistance and cooperation, a payment that had previously been made to Complainant’s deceased attorney’s law office had been tracked down and rerouted to Complainant. The Agency submitted documentation showing that a cashier’s check dated March 17, 2020, in the amount of $6,942.50 had been issued to Complainant constituting payment of the ordered attorney’s fees. The issues raised in a matter are moot, i.e., no longer in dispute (1) if it can be said with assurance that there is no reasonable expectation that the alleged violation will recur, and (2) if interim relief or events have completely and irrevocably eradicated the effects of the alleged violation. Jone A. v, Dep’t of the Navy, EEOC Appeal No. 2020004689 (April 22, 2021) citing County of Los Angeles v. Davis, 440 U.S. 625, 631 (1979). Here there is no question that Complainant received the amount of attorney’s fees that she had requested in her appeal. Complainant raised no other challenges in her appeal. Accordingly, the appeal is DISMISSED. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0920) The Commission may, in its discretion, reconsider this appellate decision if Complainant or the Agency submits a written request that contains arguments or evidence that tend to establish 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. Requests for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration. A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within which to submit a brief or statement in opposition. See 29 C.F.R. § 1614.405; Equal Employment 2020001493 3 Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9 § VII.B (Aug. 5, 2015). Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx. Alternatively, Complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, a complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless Complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together with the request for reconsideration. The Commission will consider requests for reconsideration filed after the deadline only in very limited circumstances. See 29 C.F.R. § 1614.604(c). COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (S0610) You have the right to file a civil action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. 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. If you file a request to reconsider and also file a civil action, filing a civil action will terminate the administrative processing of your complaint. 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. 2020001493 4 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 July 12, 2021 Date