[Redacted], Colene M., 1 Complainant,v.Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

Mar 14, 2022

Appeal No. 2019005810 (E.E.O.C. Mar. 14, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Colene M.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency. Request No. 2021004630 Appeal No. 2019005810 Hearing No. 420-2017-00004X Agency No. 200I05212016101228 DECISION ON REQUEST FOR RECONSIDERATION Complainant timely requested that the Equal Employment Opportunity Commission (EEOC or Commission) reconsider its decision in Colene M. v Dep’t of Veteran Affairs, EEOC Appeal No. 2019005810 (July 19, 2021). 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). During the period at issue, Complainant worked as a Registered Nurse at the VA Medical Center in Birmingham, Alabama. On March 29, 2016, Complainant filed a formal EEO complaint claiming the Agency unlawfully retaliated against her for prior protected EEO activity when: 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. 2021004630 2 1. On December 14, 2015, Complainant was reassigned from the Patient Care Service/Blind Rehabilitation work area to Patient Care Service/”4 Main”. 2. On December 14, 2015, Complainant was advised that her duty would be 7:00 pm to 7:00 am, Monday through Friday, with every other weekend rotation. 3. On or about December 14, 2015, the Acting Medical Director told Complainant that the Primary Care Director felt that Complainant was putting a “target on her back” by encouraging employees to file EEO complaints against her. 4. On or about December 14, 2015, the Acting Medical Director stated no one wanted to work with Complainant or had anything nice to say about her, and that Complainant would not be returning to the Blind Rehabilitation work area. The Acting Medical Director also told Complainant that he was not afraid of EEO complaints, or something to that effect. 5. The Primary Care Director was assigned as the lead official for an administrative investigation in which she was the subject. After its investigation, the Agency provided Complainant with a copy of the report of investigation and notice of right to request a hearing before an EEOC Administrative Judge (AJ). Complainant timely requested a hearing. The Agency filed a motion for summary judgment. On September 27, 2018, the AJ issued a decision by summary judgment. The AJ found no discrimination for all claims except claim 3. Regarding claim 3, the AJ determined that the Acting Medical Director’s comment identified therein was “per se reprisal” as unlawful chilling of employees’ use of the EEO complaint process. The AJ directed the Agency to conduct a supplemental investigation on Complainant’s entitlement to compensatory damages and attorney’s fees. On July 2, 2019, the Agency issued a final decision on compensatory damages and attorney’s fees. The Agency determined that Complainant had pre-existing medical conditions before the December 14, 2015 discriminatory act at issue, and as a result, was only liable for the minor exacerbation of Complainant’s condition. Consequently, the Agency awarded Complainant past pecuniary damages of $40 for two December 2015 psychiatrist office visits, as well as $10.96 in associated millage costs. However, the Agency denied Complainant’s request for restored leave she used for medical treatment, as well as Complainant’s medication costs. The Agency also denied Complainant’s request for future pecuniary losses due to lack of medical documentation to support this request. For non-pecuniary compensatory damages, the Agency determined that the harm Complainant presented (high blood pressure, stress-related hair loss, eczema, anxiety, social and martial isolation) were mainly related to the incidents the AJ determined to be non- discriminatory. However, the awarded Complainant $3,500 in nonpecuniary compensatory damages for the harm caused by the incident in claim 3. 2021004630 3 For attorney’s fees, the Agency ultimately awarded Attorney-1 payment for 21.60 hours of work and Attorney-2 payment for 17.20 hours of work at the rate of $400 per hour. With respect to preparation of the fee petition, the Agency granted Attonrey-1 the full 1.80 hours claimed. However, the Agency awarded Attorney-2 a reduced 4.50 hours of work. Finally, the Agency awarded $56.70 in photocopying costs. Complainant’s appeal followed. In EEOC Appeal No. 2019005810, we affirmed the Agency’s decision on past pecuniary damages for her psychiatric office visits and associated mileage as well as the denial of restored leave and reimbursement for medication costs. However, the prior decision increased Complainant’s non-pecuniary compensatory damages award to $5,168.01 (award of $5,000 adjusted for present value using the Consumer Price Index Inflation Calculator) to account more closely match past awards by the Commission for similar harm. In reaching this amount, we concluded the record failed to support a finding that Complainant’s proffered harm was ere attributed solely to the one discriminatory incident at issue, rather than her pre-existing medical conditions (history of hypertension). Regarding attorney’s fees, the prior decision affirmed the Agency’s determination that the record supported a finding that $400 per hour was the prevailing market rate for attorneys with similar experience. The prior decision explained that there was no justification for using the Laffey Matrix or the USAO-ALM Attorney’s Fee Matrix to determine an hourly rate, as requested by Complainant’s attorneys, because these matrices only apply for legal work conducted in Washington, D.C. Here, the record supports that Complainant lived and worked in Birmingham, Alabama, and received legal services from both attorneys who also were located in Birmingham, Alabama. Regarding the billable hours worked for each attorney, the prior decision affirmed the Agency’s decision to apply an overall 80% reduction of the total requested billable hours to reflect that Complainant only prevailed on one of her five claims. Regarding costs, the prior decision affirmed the Agency’s determination on printing costs. The prior decision explained that because Complainant only prevailed on one of her claims, the Agency correctly reduced the total printing costs by 80% to reflect a total cost of $56.70. Finally, the prior decision denied Complainant’s request to restore her to the Staff Registered Nurse position she had before the December 14, 2015 incident because the AJ had not determined that Complainant’s reassignment was retaliatory. In the instant request for reconsideration, Complainant submits, through counsel, a statement expressing disagreement with the appellate decision and reiterates arguments previously made on appeal. However, we emphasize 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), Chap. 9 § VI.A (Aug. 5, 2015); see, e.g., Lopez v. Dep't of Agric., EEOC Request No. 0520070736 (Aug. 20, 2007). Rather, a reconsideration request is an opportunity to demonstrate that the appellate 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. Complainant has not done so here. 2021004630 4 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. 2019005810 remains the Commission's decision. There is no further right of administrative appeal on the decision of the Commission on this request. 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 March 14, 2022 Date