[Redacted], Roxane C., 1 Complainant,v.Rick Perry, Secretary, Department of Energy, Agency.

Equal Employment Opportunity Commission

Jan 28, 2019

Appeal No. 0120170551 (E.E.O.C. Jan. 28, 2019)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Roxane C.,1 Complainant, v. Rick Perry, Secretary, Department of Energy, Agency. Request No. 2019000087 Appeal No. 0120170551 Hearing No. 570-2016-00491X Agency No. 150037HQFE 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. 0120170551 (August 24, 2018). 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). Complainant worked as a GS-15 Program Analyst at the Agency’s Office of Fossil Energy in Germantown, Maryland. Complainant filed an EEO complaint alleging discrimination on the bases of race (African American), sex (female), color (dark-skinned), age (54) and reprisal 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. 2019000087 2 1. On October 24, 2014, she received a performance appraisal with a “Meets Expectations” overall rating, which did not fairly reflect her higher level of performance; 2. On or about October 24, 2014, S1 counseled Complainant for sending an email to S1 and S2 on October 21, 2014, that stated that she did not want to work with a coworker because the coworker was racist and involved in her pending EEO complaint; 3. On December 4, 2014, and April 20-21, 2015, she was not placed in charge of the Office of Management and Field Operations when her manager was absent; 4. On December 10, 2014, she was denied the opportunity to attend training at Harvard University; 5. On February 6, 2015, and February 13, 2015, her supervisor required her to come into the office to meet with him, although she was scheduled to work from home and other employees outside of her protected classes were not required to come in; 6. On March 3, 2015, her position description was changed to reflect budget and procurement assignments that were outside of her areas of expertise; 7. On March 11, 2015, and March 12, 2015, a Contracting Officer Representative falsely accused her of calling a Project Manager a racist, bigot, and asshole; 8. On April 8, 2015, she received a Letter of Reprimand for sending inappropriate emails; and 9. On May 4, 2015, she was denied eight hours of annual leave. Complainant timely requested a hearing, but subsequently withdrew her request. Consequently, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The decision concluded that Complainant failed to prove that the Agency subjected her to discrimination as alleged. Complainant appealed. Our prior decision in EEOC Appeal No. 0120170551 partially reversed the Agency decision, concluding that the evidence established that Complainant was subjected to unlawful retaliation with respect to claims 2 and 8. The decision affirmed the finding of no discrimination with respect to the remaining claims. In its request for reconsideration, the Agency expresses its disagreement with respect to the findings of reprisal for claims 2 and 8. The Agency states that the Commission “should remand this matter back to the AJ to make proper factual determinations as to liability and damages.” However, Complainant withdrew her request for a hearing, and the Agency is not the proper party to request that the matter be returned to the EEOC Administrative Judge at this juncture. We emphasize that a request for reconsideration is not a second appeal to the Commission. See EEO MD-110, Ch. 9, § VII.A. 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. The Agency has not done so here. 2019000087 3 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. 0120170551 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 The Agency is ordered to take the following remedial action: 1. Within 90 (ninety) days from the date this decision is issued, the Agency shall provide a minimum of eight hours of in-person or interactive training to S1 and S2 regarding their responsibilities under EEO laws, particularly the anti- retaliation provisions. 2. Within 60 (sixty) days from the date this decision is issued, the Agency shall consider taking appropriate disciplinary action against S1. 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 the management officials have left the Agency's employ, the Agency shall furnish documentation of their departure dates. 3. Within 90 days from the date this decision is issued, the Agency shall expunge the Letter of Reprimand discussed herein from Complainant’s Official Personnel Folder and other Agency records. 4. Within ninety (90) days of the date this decision is issued, the Agency shall gather evidence from Complainant and calculate compensatory damages for any harm to Complainant caused by reprisal. Within 30 (thirty) days from the date of the determination of the amount of compensatory damages, the Agency shall pay Complainant that amount. 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. 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.” 5. The Agency shall post a notice in accordance with the paragraph below entitled, “Posting Order.” 2019000087 4 The Agency is further directed to submit a report of compliance, as provided in the statement entitled “Implementation of the Commission's Decision.” POSTING ORDER (G0617) The Agency is ordered to post at its Germantown, Maryland, Office of Fossil Energy 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 (K0618) Under 29 C.F.R. § 1614.405(c) and § 1614.502, compliance with the Commission’s corrective action is mandatory. Within seven (7) calendar days of the completion of each ordered corrective action, the Agency shall submit via the Federal Sector EEO Portal (FedSEP) supporting documents in the digital format required by the Commission, referencing the compliance docket number under which compliance was being monitored. Once all compliance is complete, the Agency shall submit via FedSEP a final compliance report in the digital format required by the Commission. See 29 C.F.R. § 1614.403(g). The Agency’s final report must contain supporting documentation when previously not uploaded, and the Agency must send a copy of all submissions to the Complainant and his/her representative. 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). 2019000087 5 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 January 28, 2019 Date