0520100148
04-16-2010
Maurice Blount, Complainant, v. Janet Napolitano, Secretary, Department of Homeland Security (Citizenship and Immigration Services), Agency.
Maurice Blount,
Complainant,
v.
Janet Napolitano,
Secretary,
Department of Homeland Security
(Citizenship and Immigration Services),
Agency.
Request No. 0520100148
Appeal No. 0720070010
Hearing No. 380-2005-00279X
Agency No. HS 05-CIS-000773
Component No. CIS 04-W087
DENIAL
The agency timely requested reconsideration of the decision in Maurice
Blount v. Department of Homeland Security, EEOC Appeal No. 0720070010
(October 21, 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).
In the previous decision, the Commission upheld the determination of the
EEOC Administrative Judge (AJ), following a hearing, that the agency had
discriminated against complainant based on physical disability (stroke)
when it failed to provide him with reasonable accommodation, pursuant
to the Section 501 of the Rehabilitation Act of 1973, as amended, 29
U.S.C. � 791 et seq. The Commission modified certain elements of the
relief awarded by the AJ, ordering the agency to reinstate complainant
to his prior position with back pay and benefits and eliminating the
award of front pay. However, the Commission affirmed the AJ's award of
non-pecuniary compensatory damages in the amount of $200,000.
On request for reconsideration, the sole assignment of error identified by
the agency is the amount of the compensatory damages award. The agency
argues that the award is excessive, inter alia, because the discrimination
lasted only for a period of six months, and further argues that there is a
qualitative difference between race discrimination and sexual harassment,
which have occasioned high-dollar damage awards, and "a failure to
reasonably accommodate an employee based on neglect or misunderstanding
of the law ...." The agency urges the Commission that consistency with
Commission precedent should lead us to reduce the damages award to not
more than $33,000.
In reply, complainant notes that the agency is rearguing the same
points on which it did not prevail below. Complainant argues that the
damages award was proper, and urges the Commission to deny the agency's
request for reconsideration as not meeting the criteria necessary for
reconsideration.
The Commission's scope of review on a request for reconsideration is
narrow. Lopez v. Department of the Air Force, EEOC Request No. 05890749
(September 28, 1989). For a case to be reconsidered, the request must
contain specific information that meets the requirements of 29 C.F.R. �
1614.405(b). A request for reconsideration is not merely a second form
of appeal. Regensberg v. United States Postal Service, EEOC Request
No. 05900850 (September 7, 1990).
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), because the agency's request does not
demonstrate that the appellate decision involved a clearly erroneous
interpretation of material fact or law, or that the appellate decision
will have a substantial impact on the policies, practices, or operations
of the agency. It is therefore the decision of the Commission to DENY
the request. The decision in EEOC Appeal No. 0720070010 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 of the Commission, as set forth below.
ORDER
Within sixty (60) days of the date this decision becomes final:
1. The agency shall offer complainant reinstatement to his
position at the agency, or to a substantially equivalent position.
Complainant has fifteen (15) days to accept or decline the agency's
offer of reinstatement. Upon acceptance, the agency shall engage in the
interactive process with complainant to determine what accommodations may
be necessary and effective, if complainant should require a reasonable
accommodation. If complainant should decline the agency's offer of
reinstatement, the date of his declination shall be the end date for
any back pay due complainant.
2. The agency shall determine the appropriate amount of back pay,
with interest, and other benefits due complainant since July 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."
3. The agency shall pay complainant $200,000.00 in non-pecuniary
compensatory damages.
4. The agency shall provide training to the management officials at the
Seattle District office regarding their responsibilities under EEO laws,
with a special emphasis on the Rehabilitation Act.
5. The agency shall consider taking appropriate disciplinary action
against all responsible management officials still employed by the agency.
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).
6. The agency shall reimburse complainant the sum of $466.00 in witness
costs.
7. The agency shall post a notice in accordance with the paragraph below.
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 the corrective action has been implemented.
POSTING ORDER (G0900)
The agency is ordered to post at its Seattle District Office facility
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 (P0408)
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 (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
April 16, 2010
Date
2
0520100148
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0520100148