05A40568
06-09-2004
Laxmi D. Sarwal, Complainant, v. Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.
Laxmi D. Sarwal v. Department of Veterans Affairs
05A40568
June 9, 2004
.
Laxmi D. Sarwal,
Complainant,
v.
Anthony J. Principi,
Secretary,
Department of Veterans Affairs,
Agency.
Request No. 05A40568
Appeal No. 01A30061
Agency No. 2003-0580-20011-1807
DENIAL OF REQUEST FOR RECONSIDERATION
Laxmi D. Sarwal (complainant) timely initiated a request to the Equal
Employment Opportunity Commission (EEOC or Commission) to reconsider
the decision in Laxmi D. Sarwal v. Department of Veterans Affairs, EEOC
Appeal No. 01A30061 (February 11, 2004). EEOC Regulations provide that
the Commission may, in its discretion, 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 a review of complainant's request for reconsideration, 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<1>. The decision
in EEOC Appeal No. 01A30061 remains the Commission's final decision.
There is no further right of administrative appeal on the decision of
the Commission on this request for reconsideration.
ORDER
(1) The agency is ordered to remove all documentation pertaining to
the November 6, 2001 Letter of Counseling from complainant's personnel
file and/or employee file within 30 days of the date this decision
becomes final.
(2) The agency is ordered to consider the issue of compensatory damages
with regard to claim (10). Within ninety (90) calendar days after the
date this decision becomes final, the agency shall conduct a supplemental
investigation of the compensatory damages issue. The complainant shall
cooperate in the agency's efforts to consider compensatory damages,
and shall provide all relevant information requested by the agency.
No later than sixty (60) calendar days after the agency's receipt
of complainant's submissions for the supplemental investigation,
the agency shall issue a final agency decision addressing the issue
of compensatory damages. 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 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 enforcement or clarification 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 pay complainant's reasonable attorney's fees and
costs accrued with regard to claim (10), if applicable, in accordance
with the paragraph below entitled, �Attorney Fees.�
(4) The agency shall post a notice of the finding of discrimination
as to claim (10), in accordance with the paragraph below entitled,
�Posting Order.�
(5) The agency is directed to provide EEO training for the responsible
management official(s) addressing their responsibilities with respect
to eliminating discrimination in the workplace with an emphasis on
retaliation and the current state of law on employment discrimination.
(6) The agency shall consider taking disciplinary action against the
management official identified as being responsible for the discrimination
perpetrated in claim (10). 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) for its decision not to impose discipline.
(7) 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 actions in accordance with this Order.POSTING ORDER (G0900)
The agency is ordered to post at its Houston, Texas Medical Center 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 (K0501)
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 19848,
Washington, D.C. 20036. 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 (P0900)
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 (Z1199)
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 that the Court appoint
an attorney to represent you and that the Court 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 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
June 9, 2004
__________________
Date
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
An Agency of the United States Government
This Notice is posted pursuant to an Order by the
United States Equal Employment Opportunity Commission dated
which found that a violation of Title VII of the Civil Rights Act of
1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq. has occurred at
the Houston, Texas Medical Center of the Department of Veterans Affairs
(hereinafter �facility�).
Federal law requires that there be no discrimination against any employee
or applicant for employment because of the person's RACE, COLOR, RELIGION,
SEX, NATIONAL ORIGIN, AGE, or DISABILITY with respect to hiring, firing,
promotion, compensation, or other terms, conditions or privileges of
employment.
The facility supports and will comply with such Federal law and will
not take action against individuals because they have exercised their
rights under law.
The facility was found to have unlawfully discriminated against
the individual affected by the Commission's findings on the basis of
retaliation when the facility issued complainant a letter of counseling.
The agency shall therefore remedy the discrimination by posting this
notice, removing the counseling documentation from the individual's
file, considering compensatory damages, conducting training, and paying
reasonable attorney's fees, if applicable. The facility will ensure that
officials responsible for personnel decisions and terms and conditions of
employment will abide by the requirements of all Federal equal employment
opportunity laws.
The facility will not in any manner restrain, interfere, coerce,
or retaliate against any individual who exercises his or her right to
oppose practices made unlawful by, or who participates in proceedings
pursuant to, Federal equal employment opportunity law.
____________________________
Date Posted:
Posting Expires:
29 C.F.R. Part 1614
1Regarding complainant's contention in her spinoff complaint, we note
that her allegation was fully considered, although not fully addressed,
in our prior decision. We further note, however, that by failing to
specify the nature of the privileged information allegedly divulged by
the EEO employee, complainant fails to state a claim.