0520180147
05-10-2018
Terica W,1 Complainant, v. Jeff B. Sessions, Attorney General, Department of Justice (Federal Bureau of Investigation), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Terica W,1
Complainant,
v.
Jeff B. Sessions,
Attorney General,
Department of Justice
(Federal Bureau of Investigation),
Agency.
Request No. 0520180147
Appeal No. 0720160014
Hearing No. 570-2012-00056X
Agency No. FBI201000213
DECISION ON REQUEST FOR RECONSIDERATION
The Agency timely requested that the Equal Employment Opportunity Commission (EEOC or Commission) reconsider its decision in EEOC Appeal No. 0720160014 (November 14, 2017). 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).
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Financial Analyst, GS-12 at the Agency's Washington Field Office in Washington, DC. Complainant alleged that the Agency subjected her to discrimination and a hostile work environment based on her race (African American), sex (female), disability (Repetitive Stress Injuries Bilateral Upper Extremities) and in retaliation for engaging in protected EEO activity when:
1. on October 28, 2009, she received a "Minimally Successful" rating on critical element 4 of her Performance Appraisal Report (PAR) which the Agency refused to change,
2. she was denied a within-grade-increase (WIGI) due to the 2009 "Minimally Successful" PAR,
3. in 2010, her supervisor questioned her about her medical condition and associated limitations on numerous occasions,
4. she did not receive a response to her request for reasonable accommodation made in September 2010,
5. in April 2010, she was required to meet unrealistic deadlines for her assignments,
6. in 2010, her work was subjected to unreasonable scrutiny,
7. on April 2, 2010, her supervisor questioned her about her restroom breaks,
8. on July 23, 2010, she was placed on a Performance Improvement Plan (PIP),
9. on October 26, 2010, she received a rating of "Unacceptable" on four critical elements of her 2010 PAR and a "Minimally Successful" rating on the remaining three elements,
10. in November 2010, the Agency placed her on Administrative Leave after she failed the PIP, she was instructed to record her time and attendance in the 67Q database,
11. on March 1, 2011, she was denied a WIGI after receiving an "Unacceptable" rating on her 2010 performance appraisal report,
12. on March 11, 2011, her security clearance was suspended,
13. on March 11, 2011, she was terminated from her employment with the Agency,
14. on March 11, 2011, her supervisor told her the Agency would disclose the reason for her separation from the Agency to prospective employers, and
15. on March 11, 2011, she was not permitted to take copies of her performance plan and documents related to her EEO complaint.
Following a hearing, on December 9, 2015, an EEOC Administrative Judge (AJ) ruled in favor of Complainant with respect to all claims, except claim 15. The AJ found that Complainant was subjected to discrimination, retaliation, and denial of reasonable accommodation. The AJ awarded Complainant reinstatement to her position as Financial Analyst, GS-12, or a substantially equivalent position in the Agency's Washington Field Office, retroactive to March 11, 2011; interim relief in the event the Agency filed an appeal; back-pay with interest and other benefits; expungement of the Agency's records of any and all references to the 2009 Minimally Successful PAR, the PIP, the unsatisfactory performance appraisal, the decision to remove and any related Agency records of actions that the AJ decision found to be discriminatory; replacement of the 2009 Minimally Satisfactory and 2010 Unsatisfactory performance appraisal with a Satisfactory appraisal; payment of compensatory damages in the amount of $40,000.00 for nonpecuniary damages and $7,517.53 for past pecuniary damages; 16 hours of EEO training for the responsible management officials; and reasonable attorney's fees in the amount of $112,852.00 and costs of $1,710.15. The AJ ordered implementation of the remedial relief and corrective actions within 60 days of the date the AJ decision became final.
Subsequently, on January 20, 2016, the Agency issued a final order which partially adopted the AJ's decision. Specifically, the final order implemented the AJ's decision regarding Claims 4, 5, 6, 8, 9, 11, 13, and 15, but did not accept the AJ's decision with respect to Claims 1, 2, 3, 7, 10, 12, and 14. The Agency filed an appeal with EEOC regarding the latter claims. The final order, among other things, awarded the following relief:
1. non-pecuniary damages in the amount $40,000,
2. pecuniary damages in the amount of $7,357.53,
3. reinstatement of Complainant to her previous position of Financial Analyst or a substantially equivalent position at the GS-12 level,
4. calculation and payment of the appropriate amount of back-pay and other benefits, as well as restoration of annual and sick leave, as described in the AJ's decision;
5. payment of attorney's fees in the amount of $57,960.00 (reduction from what AJ ordered) and legal expenses in the amount of $1,710.15,
6. expungement of Agency records of all references to Complainant's performance improvement plan, 2010 performance evaluation, and removal, and the replacement of Complainant's 2010 performance appraisal to reflect a Satisfactory level of performance,
7. posting of a notice of the finding of discrimination, and
8. providing the responsible management officials who remain employed by the Agency with a minimum of 16 hours of EEO training, as described by the AJ's decision.
The Commission docketed the Agency appeal as EEOC Appeal No. 0720160014. In a decision dated November 14, 2017, for 0720160014, EEOC dismissed the Agency's appeal, stating the Agency failed to provide evidence that it complied with the AJ's Order or the Commission's regulations regarding implementing interim relief. Also, the Commission reversed the portion of the Agency's final order that rejected aspects of the AJ's decision. EEOC ordered remedial relief consistent with the AJ's decision.
The instant request for reconsideration from the Agency followed. The Agency stated that there is a clearly erroneous interpretation of material fact. The Agency stated that the Commission dismissed its appeal asserting that it did not comply with interim relief ordered by the EEOC AJ, however, it "provided Complainant with virtually all of the interim relief ordered by the AJ, including reinstatement effective to the date of discharge." Further, the Agency stated that EEOC dismissed its appeal finding that the Agency did not comply with 29 C.F.R. � 1614.505(a)(4). The Agency stated, however, that it provided written notice of the one item it was not implementing pending the appeal. The Agency stated that all other items of relief ordered by the AJ were implemented "on a permanent and unconditional basis." Finally, the Agency stated that failing to consider its contentions on appeal is prejudicial to the Agency and provides a "windfall" for Complainant. The Agency provided email communications between it and Complainant (via her attorney), between January 2016 and November 2017, to support its contentions. The record showed that reinstatement and back-pay were still outstanding as late as July 2017.
Complainant opposed the Agency's reconsideration request. Complainant stated that the Agency continues to dispute the amount of back-pay for which it is responsible. Complainant stated that the Agency has not provided any back-pay calculation or paid any undisputed back-pay to her. She stated that the Agency has yet to make her whole.
ANALYSIS AND FINDINGS
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. 0720160014 remains the Commission's decision. There is no further right of administrative appeal on the decision of the Commission on this request. To the extent it has not done so already, the Agency shall comply with the Order as set forth below.
ORDER
The Agency is ORDERED to take the following remedial action, within one hundred and twenty (120) calendar days of the date this decision is issued:
1. The Agency shall reinstate Complainant to her position as Financial Analyst, GS-12, or a substantially equivalent position in the Agency's Washington Field Office, retroactive to March 11, 2011 (the effective date of her termination).
2. The Agency shall determine the appropriate amount of back pay plus interest and other benefits [including lost TSP benefits, retirement contributions and the loss of within grade increases in 2009, 2010 and thereafter] due Complainant pursuant to 29 C.F.R. �1614.501 and 5 C.F.R. � 550.805. Complainant shall cooperate with 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, the Agency shall issue a check to Complainant for the undisputed amount within 30 days of the date this Decision becomes final. Complainant may contest the Agency's back pay award in accordance with the appellate procedures outlined in the Notice of Rights that will accompany the Agency's final order. The Agency shall identify and calculate the eligible contributions to Complainant's TSP account, including any contributions by the Agency during relevant back pay period, together with whatever interest or earnings would have accrued and how the interest and earnings were calculated.
3. The Agency will expunge its records of any and all references to the 2009 Minimally Successful PAR, the Performance Improvement Plan, the Unsatisfactory Performance Appraisal and the Decision to Remove and any related Agency records of actions that this decision has found to be discriminatory. The 2009 Minimally Satisfactory and 2010 Unsatisfactory Performance Appraisal shall be replaced by a Satisfactory Appraisal.
4. The Agency shall pay Complainant the amount of $40,000.00 in nonpecuniary damages and $7,517.53 in past pecuniary damages.
5. The Agency will pay reasonable attorney's fees $112,852.00 and costs $1,710.15.
6. The Agency will require the responsible management officials to each take at least sixteen (16) hours of EEO training in the provisions of Title VII of the Civil Rights Act of 1964 and the Rehabilitation Act of 1973, specifically non-discrimination based on race, sex, disability, the provision of reasonable accommodation and the prohibition against retaliation for engaging in protected EEO activity.
7. The Agency shall 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).
POSTING ORDER (G0617)
The Agency is ordered to post at its Washington Field Office 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 (K0617)
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 in the digital format required by the Commission, and submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. � 1614.403(g). 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
May 10, 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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