0520180483
09-27-2018
Susann G.,1 Complainant, v. Robert Wilkie, Secretary, Department of Veterans Affairs, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Susann G.,1
Complainant,
v.
Robert Wilkie,
Secretary,
Department of Veterans Affairs,
Agency.
Request No. 0520180483
Appeal No. 0120162437
Hearing No. 510-2016-00016X
Agency No. 200I05162015102375
DECISION ON REQUEST FOR RECONSIDERATION
Complainant timely requested that the Equal Employment Opportunity Commission (EEOC or Commission) reconsider its decision in EEOC Appeal No. 0120162437 (May 25, 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).
Complainant filed a request for reconsideration following the Commission's decision in EEOC Appeal No. 0120162437. The decision found that Complainant was subjected to unlawful retaliation when she became aware that she was not promoted to the GS-6 position. Complainant did not challenge the decision's finding of discrimination. Complainant solely requested that the Commission provide her with restoration of leave she used due to the unlawful retaliation.
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. Specifically, we note that Complainant alleged that the Commission's previous decision did not provide her with the opportunity to receive relief for the sick leave, annual leave and leave without pay she expended as a result of the Agency's discriminatory action. We find that the previous decision ordered the Agency to calculate Complainant's entitlement to back pay and benefits. Complainant's request for restoration of leave falls within this order for equitable relief. As such, we discern no basis to grant the instant request for reconsideration.
However, we shall reopen the decision in EEOC Appeal No. 0120162437. For the sake of clarity, we shall modify the order pertaining to equitable relief and order the Agency to allow Complainant to provide evidence in support of her claim for restoration of leave and to subsequently issue a decision regarding Complainant's entitlement to such relief. As such, the order is modified below. There is no further right of administrative appeal on the decision of the Commission on this request.
ORDER (D0617)
Within one hundred and twenty (120) calendar days from the date this decision is issued, the Agency is ordered to take the following actions:
1. Offer Complainant promotion to GS-6 in the position she currently occupies or a substantially equivalent position, along with back pay, interest, and other benefits pursuant to 29 C.F.R. � 1614.501(c). The offer must be made in writing, providing Complainant fifteen (15) calendar days from receipt of the offer to notify the agency of the acceptance or rejection. Failure of the Complainant to respond in writing within fifteen (15) calendar days of receipt of such offer shall be construed as a declination.
2. Award Complainant back pay from the date that she would have been promoted to a GS-6 position if she had remained in her position the date that she accepts or rejects the Agency's offer of a GS-6 position pursuant to this decision. 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. In addition, Complainant will provide the Agency her claim for restoration of leave, including sick leave, annual leave, and leave without pay, she alleged to have used as a result of the Agency's discriminatory action.
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 120 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."
3. The Agency shall conduct a supplemental investigation on the issue of Complainant's entitlement to compensatory damages with respect to this complaint. Complainant will cooperate in the Agency's efforts to compute the amount of compensatory damages, if any, and will provide all relevant information requested by the Agency. The Agency shall issue a final decision on the issue of compensatory damages with appeal rights to the Commission. A copy of the final decision must be submitted to the Compliance Officer as referenced below.
4. Provide training to the Agency personnel responsible for the reprisal, placing special emphasis on an employer's obligation not to engage in discrimination against employees because of EEO activity;
5. Post at the Bay Pines VA Medical Center, copies of the notice discussed below;
6. The Agency shall consider taking appropriate disciplinary action against the Agency supervisors involved in the discrimination. 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 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, including leave, due Complainant, including evidence that the corrective action has been implemented.
POSTING ORDER (G0617)
The Agency is ordered to post at its Bay Pines VA Medical Center 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 by the 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 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 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)), 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.
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.
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
September 27, 2018
__________________
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.
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