Stefany D.,1 Complainant,v.Robert Wilkie, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

Oct 3, 2018

0520180415 (E.E.O.C. Oct. 3, 2018)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Stefany D.,1
Complainant,

v.

Robert Wilkie,
Secretary,
Department of Veterans Affairs,
Agency.

Request No. 0520180415

Appeal No. 0720180002

Hearing No. 460-2015-00093X

Agency No. 200305802014104080

DECISION ON REQUEST FOR RECONSIDERATION

The Agency requested that the Equal Employment Opportunity Commission (EEOC or
Commission) reconsider its decision in EEOC Appeal No. 0720180002 (April 12, 2018). 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).

In her underlying complaint, Complainant alleged that the Agency discriminated against her on
the bases of race (Black) and sex (female) when, on June 12, 2014, Complainant learned that she
was not selected for a Supervisory Human Resources Specialist position under Vacancy
Announcement 13HRW-924152.

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.
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At the conclusion of the investigation, the Agency provided Complainant with a copy of the
report of investigation and notice of her right to request a hearing before an Equal Employment
Opportunity Commission Administrative Judge (AJ). Complainant requested a hearing. The AJ
held a hearing in August 2017, and issued a decision concluding Complainant had proven her
claim of discrimination on September 12, 2017. Among the relief ordered following the finding
of discrimination, the AJ determined Complainant was entitled to $50,000 in nonpecuniary,
compensatory damages. The AJ indicated the Agency’s action was egregious.

The Agency subsequently issued a final order fully implementing the AJ’s finding that
Complainant proved that the Agency subjected her to discrimination as alleged, as well as the
equitable relief ordered. The Agency only rejected the AJ’s order of $50,000 in nonpecuniary,
compensatory damages and simultaneously filed an appeal. The Agency argued the Commission
should reduce the award of damages to a range of $5,000 to $25,000.

In EEOC Appeal No. 0720180002 (April 12, 2018), the Commission affirmed the finding of
discrimination. The Commission reversed the Agency’s decision regarding the award of
compensatory damages. The Commission determined that substantial evidence supported the
AJ’s award of $50,000 in nonpecuniary, compensatory damages.

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 No. 0720180002 remains the
Commission's decision. There is no further right of administrative appeal on the decision of the
Commission on this request. The Agency shall comply with the Order as set forth herein.

ORDER

To the extent it has not done so already, the Agency is ordered to take the following remedial
action within 90 calendar days from the date this decision is issued, unless otherwise indicated:

I. The Agency shall determine the appropriate amount of back pay, with interest,
and other benefits due the Complainant, pursuant to 29 C.F.R. § 1614.501, from
June 12, 2014, no later than sixty (60) calendar days after the date this decision
was issued. The Complainant shall cooperate in the Agency's efforts to compute
the amount of back pay and benefits due, and shall provide all relevant
information requested by the Agency. If there is a dispute regarding the exact
amount of back pay and/or benefits, the Agency shall issue a check to the
Complainant for the undisputed amount within sixty (60) calendar days of the
date the Agency determines the amount it believes to be due. The Complainant
may petition for enforcement or clarification of the amount in dispute. The
petition for clarification or enforcement must be filed with the Compliance
Officer, at the address referenced in the statement entitled “Implementation of the
Commission’s Decision,”

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II. The Agency shall pay Complainant $50,000 in compensatory damages with
interest.

III. The Agency is directed to conduct training for the Human Resources Division
who was found to have violated Title VII. The Agency shall address these
employees' responsibilities with respect to Title VII.

IV. The Agency shall consider taking disciplinary action against the selecting official.
The Agency shall report its decision. 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)f or its decision not to impose
discipline.

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). Further,
the report must include supporting documentation of the Agency's calculation of back pay and
other benefits due Complainant, including evidence that the corrective action has been
implemented.

POSTING ORDER (G0617)

The Agency is ordered to post at its Michael E. DeBakey Medical Center in Houston, Texas
(facility) copies of the attached notice. Copies of the notice, after being signed by the Agency's
duly authorized representative, shall be posted both in hard copy and electronic format
Agency within 30 calendar days of the date this decision was issued, and shall remain posted for
60 consecutive days, in conspicuous places, including all places where notices to employees
customarily posted. The Agency shall take reasonable steps to ensure that said notices are not
altered, defaced, or covered by any other material. The original signed notice is to be submitted
to the Compliance Officer as directed in the paragraph entitled "Implementation of the
Commission's Decision," within 10 calendar days of the expiration of the posting period. The
report must be in digital format, and must be submitted via the Federal Sector EEO Portal
(FedSEP). See 29 C.F.R. § 1614.403(g).

ATTORNEY'S FEES (H1016)
If Complainant has been represented by an attorney (as defined by 29 C.F.R.
§ 1614.501(e)(1)(iii)), if 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 the date this decision was issued. The Agency shall then process the claim for
attorney's fees in accordance with 29 C.F.R. § 1614.501.

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IMPLEMENTATION OF THE COMMISSION’S DECISION (K0618)
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.
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.
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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 3, 2018
Date