0520160004
05-13-2016
Taylor Z.,1 Complainant, v. Eric Fanning, Acting Secretary, Department of the Army, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Taylor Z.,1
Complainant,
v.
Eric Fanning,
Acting Secretary,
Department of the Army,
Agency.
Request No. 0520160004
Appeal No. 0720130011
Hearing No. 550-2011-00481X
Agency No. ARUSAR10NOV04919
DECISION ON REQUEST FOR RECONSIDERATION
The Agency timely requested reconsideration of the decision in EEOC Appeal No. 0720130011 (August 7, 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).
Complainant was an applicant for a permanent position as an Engineering Equipment Operator, WG-5716-11, at the Agency's Directorate of Public Works Facility in Fort Hunter Liggett, California. Complainant had previously worked in a similar position at the Fort under a term appointment that ended in September 2010.
On November 29, 2010, Complainant filed an EEO complaint alleging the Agency discriminated against him on the basis of age (55) when it did not select him for the permanent position of Engineering Equipment Operator, advertised under Vacancy Announcement NCDE10504099DR1.
In EEOC Appeal No. 0720130011, we affirmed the EEOC Administrative Judge's October 18, 2012 decision following a hearing, concluding the Agency discriminated against Complainant on the basis of age when it did not select him for one of four vacancies for the permanent Engineering Equipment Operator position. The AJ ordered the Agency to retroactively place Complainant in the position with all of the back pay and benefits that he would have earned absent the discrimination. The AJ noted that prevailing parties alleging age discrimination are not entitled to compensatory damages or attorney's fees and costs.
However, the AJ also issued an October 19, 2012 Order on Complainant's request for sanctions concerning a number of discovery issues. As a sanction, the AJ ordered the Agency to "compensate the Complainant's attorney in the amount of $7,012.50 as a Sanction for the Agency's failure to timely and fully produce discovery and comply with [the AJ's] orders."
In its original appeal, the Agency rejected the AJ's Order concerning this monetary sanction, arguing, in brief, that the doctrine of sovereign immunity precludes prevailing ADEA complainants from receiving attorney's fees, and that attorney's fees cannot simply "be recast as sanctions." Moreover, the Agency argued that EEOC did not have the authority in general to impose monetary sanctions against federal agencies for violations of EEOC AJs' orders. The Agency maintained that paying the monetary sanctions without the legal authority to do so would place Agency senior officials in jeopardy of violating the Anti-Deficiency Act.
In EEOC Appeal No. 0720130011, we rejected the Agency's arguments with a detailed analysis and affirmed the AJ's imposition of monetary sanctions in the form of attorney's fees in this case.
In its request for reconsideration, the Agency expresses its disagreement with the previous decision, raising essentially the same arguments already presented and thoroughly addressed in EEOC Appeal No. 0720130011. 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.
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. 0720130011 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 (C0610)
The Agency is ordered to take the following remedial action:
Within thirty (30) calendar days, the Agency shall pay Complainant $7,0120.50 in attorney's fees as a sanction for the Agency's failure to timely and fully produce discovery and comply with the AJ's orders.
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.
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
May 13, 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.
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