Stojanka Kessel, Complainant,v.Gary Locke, Secretary, Department of Commerce, Agency.

Equal Employment Opportunity CommissionJun 17, 2009
0520090381 (E.E.O.C. Jun. 17, 2009)

0520090381

06-17-2009

Stojanka Kessel, Complainant, v. Gary Locke, Secretary, Department of Commerce, Agency.


Stojanka Kessel,

Complainant,

v.

Gary Locke,

Secretary,

Department of Commerce,

Agency.

Request No. 0520090381

Appeal No. 0120070702

Hearing No. 260200500200X

Agency No. 045500229

DENIAL

The agency timely requested reconsideration of the decision in Stojanka

Kessel v. Department of Commerce, EEOC Appeal No. 0120070702 (March

19, 2009). 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(b).

After reconsidering 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(b), and it is the decision of the Commission to deny

the request. The decision in EEOC Appeal No. 0120070702 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 below.

ORDER (D0403)

The agency is ordered to take the following remedial action:

1. Within sixty (60) calendar days after the date this decision becomes

final, the agency shall award complainant $65,000 in non-pecuniary

damages.

2. Within sixty (60) calendar days after the date this decision

becomes final, the agency shall promote complainant to a GS-12 position

retroactive to August 2004, and the agency shall afford complainant any

grade or step increases to which she would have been entitled absent

discrimination.

3. The agency shall determine the appropriate amount of back pay, with

interest, and other benefits due complainant since August 2004, pursuant

to 29 C.F.R. �1614.501, no later than sixty (60) calendar days after the

date this decision becomes final. 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."

4. Immediately upon this decision becoming final, the agency shall take

action to ensure that S1 and S2 are removed from their supervisory roles

over complainant, without transferring complainant, and that the hostile

work environment ceases and desists. Further, the agency shall ensure

that others at the facility are protected from discrimination and a

hostile work environment.

5. Within ninety (90) calendar days of the date that this decision

becomes final, the agency shall provide all management officials at

its U.S. Export Assistance Center in Milwaukee, Wisconsin, including

the Network Director of the Midwest Region, with at least forty (40)

hours of EEO training regarding their obligations and responsibilities

under the federal employment anti-discrimination laws, paying particular

attention to harassment and retaliation.

6. The agency shall consider taking appropriate disciplinary action

against both S1 and S2. 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).

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 of the

agency's calculation of back pay and other benefits due complainant,

including evidence that the corrective action has been implemented.

POSTING ORDER (G0900)

The agency is ordered to post at its U.S. Export Assistance Center in

Milwaukee, Wisconsin copies of the attached notice. Copies of the notice,

after being signed by the agency's duly authorized representative, shall

be posted by the agency within thirty (30) calendar days of the date

this decision becomes final, and shall remain posted for sixty (60)

consecutive days, in conspicuous places, including all places where

notices to employees are 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 at the address cited in the paragraph

entitled "Implementation of the Commission's Decision," within ten (10)

calendar days of the expiration of the posting period.

ATTORNEY'S FEES (H0900)

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 (K1208)

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 (Q0408)

This decision affirms the agency's final decision/action in part, but it

also requires the agency to continue its administrative processing of a

portion of your complaint. 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 on both that portion

of your complaint which the Commission has affirmed and that portion

of the complaint which has been remanded for continued administrative

processing. 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.

RIGHT TO REQUEST COUNSEL (Z1008)

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 from the Court that

the Court appoint an attorney to represent you and that the Court also

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 with

the Court 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

6/17/09

__________________

Date

5

0520090381

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013