05A40018
12-22-2003
Shirley A. Fialkowski, Complainant, v. Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.
Shirley A. Fialkowski v. Department of Veterans Affairs
05A40018
December 22, 2003
.
Shirley A. Fialkowski,
Complainant,
v.
Anthony J. Principi,
Secretary,
Department of Veterans Affairs,
Agency.
Request No. 05A40018
Appeal No. 07A30009
Agency Nos. 2001-0521; 2001-300151
Hearing No. 130-A2-8121X
DENIAL OF REQUEST FOR RECONSIDERATION
Shirley A. Fialkowski (complainant) timely initiated a request to the
Equal Employment Opportunity Commission (EEOC or Commission) to reconsider
the decision in Shirley A. Fialkowski v. Department of Veterans Affairs,
EEOC Appeal No. 07A30009 (August 15, 2003). EEOC Regulations provide that
the Commission may, in its discretion, 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(b).
In the decision below, the Commission found that complainant was entitled
to $10,000.00 in compensatory damages for pain and suffering caused by
the agency's retaliatory conduct. In the instant request, complainant
raises no argument or evidence that was not previously considered in
the prior decision. Complainant merely argues that $10,000.00 award does
not sufficiently remedy the damages she has incurred.
Having considered the evidence of the record and complainant's submission,
we find that complainant failed to show that the appellate decision
involved a clearly erroneous interpretation of material fact or law
or would have a substantial impact on the policies, practices, or
operations of the agency. Therefore, the Commission finds that the
request fails to meet the criteria of 29 C.F.R. � 1614.405(b), and it
is the decision of the Commission to deny the request. The decision
in EEOC Appeal No. 07A30009 remains the Commission's final decision.
There is no further right of administrative appeal on the decision of
the Commission on this request for reconsideration.
ORDER
To the extent that it has not already done so, the agency is ordered to
take the following remedial action within sixty (60) days of the date
on which this decision becomes final;
Pay complainant compensatory damages in the amount of $10,000.00.
Pay complainant $11,744.40 in back pay.
Pay complainant $1,417.50 as reimbursement for health insurance premiums.
Pay complainant $3,000.00 as a recruitment bonus.
Pay complainant prejudgement interest on the back pay, the health
insurance premiums, and the recruitment bonus from February 11, 2001
until the date that the payment is/was made, at the IRS interest rate.
Complainant's personnel file and records shall be documented to note
that she served in the capacity of Registered Nurse from February 11,
2001 until the date that she is/was employed.
Offer to hire complainant as a Registered Nurse. If the agency failed to
do so by October 1, 2002, pursuant to the Administrative Judge's Order,
the agency will be responsible for paying complainant any additional
back pay, health insurance premiums and interest that accrued between
October 1, 2002 and the time complainant was/is offered employment as
a Registered Nurse. If complainant accepts/ed the Registered Nurse
position, complainant should be earning at least $52,408.00 annually.
Credit complainant with leave time and service that she would have
accrued had she been hired by the agency on February 11, 2001.
Provide training of at least one (1) hour in length concerning retaliation
to the members of Nursing Services.
Consider taking appropriate disciplinary action against the responsible
management officials. The Commission does not consider training to
be disciplinary action. The agency shall report its decision to the
compliance officer. If the agency decides to take disciplinary action,
it shall identify the action taken. If the agency decides not to take
disciplinary action, it shall set forth the reason(s) for its decision
not to impose discipline. If any of the responsible management officials
have left the agency's employ, the agency shall furnish documentation
of their departure date(s).
Ensure that complainant is not subjected to any form of retaliation.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)
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 19848,
Washington, D.C. 20036. 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 (P0900)
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 (Z1199)
If you decide to file a civil action, and if you do not have or cannot
afford the services of an attorney, you may request that the Court appoint
an attorney to represent you and that the Court permit you to file the
action without payment of fees, costs, or other security. See Title VII
of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.;
the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c).
The grant or denial of the request is within the sole discretion of
the Court. Filing a request for an attorney does not extend your time
in which to file a civil action. Both the request and the civil action
must be filed within the time limits as stated in the paragraph above
("Right to File A Civil Action").
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
December 22, 2003
__________________
Date