U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Becki P.,1
Complainant,
v.
Elaine L. Chao,
Secretary,
Department of Transportation
(Federal Aviation Administration),
Agency.
Request No. 2019002712
Appeal No. 0720180004
Hearing No. 551-2015-00220X
Agency No. 2015-26073-FAA-06
DECISION ON REQUEST FOR RECONSIDERATION
Complainant requested that the Equal Employment Opportunity Commission (EEOC or
Commission) reconsider its decision in EEOC Appeal No. 0720180004 (November 15, 2018).2
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).
In her underlying complaint, Complainant claimed the Agency discriminated against her on the
bases of sex (female), disability, age, and in reprisal for prior protected EEO activity.
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.
2 The Commission re-issued the decision in EEOC Appeal No. 0720180004 on February 12, 2019,
because the original decision was mailed to the incorrect address. Thus, the date of February 12,
2019, governs the time frames related to the parties’ receipt of the decision.
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In its March 9, 2015, partial acceptance/dismissal letter, the Agency accepted the following claims
for investigation:
[Was Complainant] discriminated against based on [her] sex (female), age (over 40),
disability (depression/anxiety, association with physically disabled individuals) and or in
reprisal for [her] participation in protected activity when since approximately November
2014 and continuing, [she was] subjected to a hostile work environment.
Examples of the hostile work environment include, but are not limited to, the following discrete
personnel actions and/or acts of harassment:
a. On December 2, 2014, [her] requests to work an extra hour to compensate [her] for late
arrival was denied;
b. On December 4, 2014, [her] computer was confiscated;
c. [Complainant was] not allowed to telework on [her] regularly scheduled telework day,
December 5, 2014;
d. Effective December 1 – through December 12, 2014, [Complainant was] placed on
Administrative Leave with unreasonable stipulations;
e. On December 15, 2014, [her] request for the purpose of obtaining guardianship for her
grandchildren was denied;
f. In December 2014, [her] supervisor wrongly disclosed information regarding [her]
personal medical information to an individual that was not on a need to know basis;
g. [Her] requests for changes to [her] work schedule as a reasonable accommodation were
denied;
h. On January 5, 2015, during medical leave, [she was] ordered not to enter any FAA facilities
without prior approval;
i. On January 9, 2015, upon returning to work from medical leave her computer was once
again confiscated;
j. On January 10, 2015, [her] supervisor singled [her] out and requested things from [her]
that no others were requested to do;
k. On March 2, 2015, [she was] written up for allegedly not adhering to the Standards of
Conduct within FAA;
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However, the Agency dismissed the following incidents on the grounds that Complainant
previously raised these matters in the grievance process:
l. [Her] November 2014 request to work outside of the commuting area was denied; and
m. [Her] request for online training courses were denied.
After an investigation, the Agency provided Complainant with a copy of the report of investigation
and notice of her right to request a hearing before an EEOC Administrative Judge (AJ).
Complainant requested a hearing. On September 12, 2017, the AJ issued a decision without a
hearing finding discrimination with respect to one claim. The AJ found that the Agency
improperly disclosed Complainant’s medical information in violation of the Rehabilitation Act.
The AJ ordered the Agency to pay reasonable attorney’s fees and costs, if applicable, pay $1,000
in nonpecuniary damages, and to post a notice regarding the AJ’s finding of discrimination. The
AJ found no discrimination regarding the remaining claims.
On October 20, 2017, the Agency issued a final order rejecting the AJ’s finding that Complainant
proved that the Agency subjected her to discrimination as alleged. The Agency filed an appeal
challenging the AJ’s finding of discrimination.
Complainant filed an appeal on December 5, 2017. Complainant filed her brief in support of her
appeal on February 2, 2018. In our previous decision, the Commission found Complainant’s appeal
was timely filed. However, we found Complainant’s brief in support of her appeal was not timely
filed and did not consider her untimely brief in support of her appeal.
In the previous decision, the Commission found the Agency and the AJ properly dismissed
incidents (l) and (m) because those matters were previously raised in the grievance process which
allowed claims of discrimination to be raised.
The Commission also noted that Complainant’s claims regarding her FMLA requests being denied
or the Agency not properly processing these requests were not properly before the Commission.
The previous decision found the AJ properly determined the Agency committed a per se violation
of the Rehabilitation Act. The Commission increased the award of nonpecuniary, compensatory
damages to $2,000. The Commission concurred with the AJ’s finding of no discrimination
pertaining to the remainder of the incidents in Complainant’s complaint.
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. 0720180004 remains the Commission's
decision. There is no further right of administrative appeal on the decision of the Commission on
this request.
20190027124
ORDER
The extent, it has not already done so, the Agency is ORDERED to take the following actions set
forth by the AJ, as modified herein:
1. Within 60 calendar days from the date this decision is issued, the Agency shall pay
Complainant $2,000 in nonpecuniary, compensatory damages.
2. The Agency shall pay Complainant reasonable attorney’s fees and costs, if applicable, as
set forth in the paragraph herein entitled “Attorney’s Fees.”
3. Within 90 calendar days from the date this decision is issued, the Agency shall provide at
least four hours of in-person training to the responsible management official (S2) on the
Rehabilitation Act and the prohibition of disclosing medical information to those who do
not have a need to know.
4. Within 30 calendar days from the date this decision is issued, the Agency is required to
post a notice in accordance with the paragraph herein entitled “Posting Order.”
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 (G0617)
The Agency is ordered to post at the Federal Aviation Administration’s Renton, Washington
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.
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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). 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 (Q0610)
This decision affirms the Agency’s final decision/action in part, but it also requires the Agency to
continue its administrative processing of a portion of your complaint. 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 on both that portion of your complaint which the
Commission has affirmed and that portion of the complaint which has been remanded for
continued administrative processing. In the alternative, you may file a civil action after one
hundred and eighty (180) calendar days of the date you filed your complaint with the Agency,
or filed your appeal with the Commission. 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. Filing a civil action will terminate
the administrative processing of your complaint.
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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
June 28, 2019
Date
