0520160145_0520160146
04-11-2016
Sanora S.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Sanora S.,1
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service,
Agency.
Request Nos. 0520160145 & 0520160146
Appeal Nos. 0120133235 & 0120140921
Hearing No. 460-2008-0179X
Agency No. 6H-000-0001-08
DECISION ON REQUEST FOR RECONSIDERATION
On January 12, 2016, Complainant timely requested reconsideration of the consolidated decision in EEOC Appeal Nos. 0120133235 & 0120140921 (December 11, 2015). EEOC Regulations provide that the Commission may, in its discretion, grant a request to reconsider any previous Commission decision 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).
On request, Complainant challenges the calculation of nonpecuniary damages in our previous decision. While Complainant's point is well taken that harm should not be apportioned based on a complainant's success in proving multiple claims, but instead on the extent to which an Agency is actually responsible for the harm caused by proven discrimination, an overall reading of the decision shows the latter occurred, albeit there is some language therein to the contrary.2 In calculating nonpecuniary damages, in our previous decision we took into account of factors for which the Agency was not found to be discriminatorily responsible that caused harm, i.e., events occurring prior to any of the alleged discrimination, unproven claims of discrimination, and things occurring outside the Agency unrelated to discrimination. Further, we found that the causal connection of Complainant's harm to the three incidents of found reprisal discrimination was much more tenuous than in cases cited by the Complainant to justify a larger award. Complainant also challenges our calculation of lost income from discriminatory denial of permission to work part-time outside work selling real estate. She has not shown, however, that in our previous decision we clearly erred when we based the calculation on her actual earnings.
On request, Complainant further argues that the Agency has not yet complied with our order in EEOC Appeal Nos. 0120133235 & 0120140921.3 Complainant's concerns about compliance should be addressed to the EEOC, Office of Federal Operations Compliance Officer assigned to her case, not in the context of a request for reconsideration. Shortly after this decision is issued, the parties will be notified of the identity of the Compliance Officer.
After reviewing the previous decision and the entire record, the Commission finds that the request fails to meet the criteria of 29 C.F.R. � 1614.405(c), and it is the decision of the Commission to deny the request. The decision in EEOC Appeal Nos. 0120133235 & 0120140921 remains the Commission's decision. There is no further right of administrative appeal on the decision of the Commission on this request.
ORDER
To the extent that it has not already done so, the Agency is ORDERED to take the following
remedial action within twenty (20) calendar days of when this decision becomes final:
1. If the Agency has already awarded Complainant $56,270.50, it shall issue a check to Complainant for the remaining $34,749.15. Alternatively, if the Agency has not yet made an award for compensatory damages and attorneys' fees and costs, it shall issue a check to Complainant in the amount of $91,019.65.
2. The Agency shall restore any leave taken by Complainant between July and December 2008, and shall award Complainant any back pay in the form of Law Enforcement Availability Pay (LEAP) that Complainant had lost as a result of S1's retaliatory actions, together with interest and any other benefits due, unless it presents clear and convincing evidence that Complainant is not entitled to restored leave or LEAP despite S1's acts of reprisal.
3. The Agency is further directed to submit a report of compliance, as provided in the statement entitled "Implementation of the Commission's Decision." The report shall include supporting documentation verifying that the corrective action has been implemented.
ATTORNEY'S FEES (H0610)
If Complainant has been represented by an attorney (as defined by 29 C.F.R. � 1614.501(e)(1)(iii)), he/she is entitled to an award of reasonable attorney's fees incurred in the processing of the complaint. 29 C.F.R. � 1614.501(e). The award of attorney's fees shall be paid by the Agency. The attorney shall submit a verified statement of fees to the Agency -- not to the Equal Employment Opportunity Commission, Office of Federal Operations -- within thirty (30) calendar days of this decision becoming final. The Agency shall then process the claim for attorney's fees in accordance with 29 C.F.R. � 1614.501.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0610)
Compliance with the Commission's corrective action is mandatory. The Agency shall submit its compliance report within thirty (30) calendar days of the completion of all ordered corrective action. The report shall be submitted to the Compliance Officer, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. The Agency's report must contain supporting documentation, and the Agency must send a copy of all submissions to the Complainant. 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.
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (P0610)
This decision of the Commission is final, and there is no further right of administrative appeal from the Commission's decision. 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.
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
April 11, 2016
__________________
Date
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.
2 We note that in using this contrary language, we explicitly mirrored Complainant's theory about the recovery ratio for damages, albeit Complainant argued for a different ratio.
3 In our previous decision, we ordered the Agency to comply with three itemized remedial actions within 20 calendar days after the decision became final. Complainant filed her request for reconsideration before the above time limit in the Order ran. In an initial appeal decision, if neither party files a request for reconsideration, the decision becomes final within 30 days after the parties receive this decision. The Commission presumes the parties will receive the appeal decision within five calendar days after it is mailed.
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0520160146
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0520160145 & 0520160146