0520160154
07-20-2016
Jeramy R.,1 Complainant, v. Loretta E. Lynch, Attorney General, Department of Justice, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Jeramy R.,1
Complainant,
v.
Loretta E. Lynch,
Attorney General,
Department of Justice,
Agency.
Request No. 0520160154
Appeal No. 0120132089
Agency No. OBD201100126
DECISION ON REQUEST FOR RECONSIDERATION
The agency timely requested reconsideration of the decision in EEOC Appeal No. 0120132089 (November 19, 2015). 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(c).
In his underlying complaint, Complainant alleged that the Agency subjected him to unlawful discrimination in retaliation for prior protected EEO activity in the form of opposition to sex discrimination. In its final decision, the Agency concluded that Complainant failed to prove that the Agency subjected him to the alleged reprisal discrimination. On appeal, the Commission reversed the Agency's dismissal and found that the Agency, acting through two supervisors, S1 and S2, had discriminated against Complainant. The matter was remanded for the awarding of relief.
In its request for reconsideration, the Agency again argues that the weight of the evidence does not support Complainant's claim and seeks to revisit factual issues addressed in the previous decision. The Commission emphasizes that a request for reconsideration is not a second appeal to the Commission. Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110) (Aug. 5, 2015), at 9-18; see, e.g.,. Lopez v. Dep't of Agric., EEOC Request No. 0520070736 (Aug. 20, 2007). We find that the Agency's arguments do not demonstrate that the previous decision involved a clearly erroneous interpretation of material fact or law or will have a substantial impact on the policies, practices, or operations of the agency. Accordingly, we find that the Agency has failed to demonstrate that the Commission should reconsider its appellate decision.
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. 0120132089 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
Within one hundred and twenty (120) calendar days from the date this decision becomes final, the Agency is ORDERED to take the following actions:
1. Offer Complainant a one-year temporary detail as a Trial Attorney at the Office of the Rule of Law Coordinator in Baghdad, Iraq, or a substantially equivalent position, at a location mutually agreeable to both the Agency and Complainant.2 The offer should be made in writing, providing Complainant 15 (fifteen) calendar days from receipt of the offer to notify the agency of the acceptance or rejection. Failure of the Complainant to respond within the 15 day time limit shall be construed as a declination.3
2. If the Agency and Complainant do not agree to a new detail, the Agency shall award Complainant the appropriate amount of back pay, interest, and other benefits pursuant to 29 C.F.R. � 1614.501(c), which was lost as a result of Complainant not being able to extend the original detail for one year.4 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 120 (one hundred and twenty) calendar days of the date the Agency determines the amount it believes to be due. 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. Calculate compensatory damages for harm caused by retaliating against Complainant for his EEO activity. If there is a dispute regarding the exact amount of compensatory damages, the Agency shall issue a check to the Complainant for the undisputed amount within 120 (one hundred and twenty) calendar days of the date the Agency determines the amount it believes to be due. 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. Ensure that requests for professional references for Complainant are not directed to S1 or S2.
5. Provide training to the Agency personnel responsible for the reprisal, mainly, S1 and S2, placing special emphasis on an employer's obligation not to take retaliatory action against an employee because of their opposition or participation in protected activity, such as the EEO counselor contact in the present case.
6. Post at the Office of the Rule of Law Coordinator in Baghdad, Iraq, copies of the notice discussed below.
7. 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, as provided in the statement entitled "Implementation of the Commission's Decision." The report shall include supporting documentation verifying that all of the corrective action has been implemented.
POSTING ORDER (G0914)
The Agency is ordered to post at the Office of the Rule of Law Coordinator in Baghdad, Iraq, 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 becomes final, 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 at the address cited in the paragraph entitled "Implementation of the Commission's Decision," within 10 calendar days of the expiration of the posting period.
ATTORNEY'S FEES (H0610)
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 (K0610)
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 (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
7/20/2016
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.
2 This relief is being awarded because Complainant indicated that he wanted to extend his one-year detail at the OROLC, but did not have the opportunity to do so because of the adverse treatment toward him by S1 and S2. There was a pay differential for service in Iraq. See ROI, p. 8.
3 Complainant requested a one-year detail as relief for reprisal, or compensation for the lost opportunity of completing the one-year extension. Complainant and his co-workers testified that he was subjected to hostile and often degrading treatment by S1 and S2, which included being excluded from meetings, having to do work in two positions, and enduring comments about his character and the fact that he reported S1 and S1's treatment of women in the office. Given the circumstances, Complainant found it impossible to work another year in an extension of his detail to the OROLC under the supervision of S1 and S2, and the record reveals that he wanted to end his detail early. However, upon finding out that S4 would gain supervision of the office, Complainant wanted to extend his detail, but his replacement had already been given a deployment date, and Complainant was not permitted to extend his detail for another year. See S4 Interrogatory, ROI, Tab D-4, p. 249. Therefore, since the actions of S1 and S2 led to Complainant not requesting an extension at an earlier time, it is appropriate for the Agency to offer a new detail. 29 C.F.R. �1614.501(c).
4 There was a pay differential for service in Iraq, even though Complainant continued his employment with the Agency subsequent to the end of the detail. See ROI, p. 8.
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