Complainantv.Tom J. Vilsack, Secretary, Department of Agriculture (Forest Service), Agency.

Equal Employment Opportunity CommissionApr 25, 2014
0520130416 (E.E.O.C. Apr. 25, 2014)

0520130416

04-25-2014

Complainant v. Tom J. Vilsack, Secretary, Department of Agriculture (Forest Service), Agency.


Complainant

v.

Tom J. Vilsack,

Secretary,

Department of Agriculture

(Forest Service),

Agency.

Request No. 0520130416

Appeal No. 0120130287

Agency No. FS-2012-00082

DENIAL

Complainant timely requested reconsideration of the decision in EEOC Appeal No. 0120130287 (March 13, 2013). 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).

The Agency issued a consolidated final decision on September 30, 2010, that found that Complainant was subjected to unlawful discrimination. The Agency issued a second decision on March 8, 2011, that awarded Complainant various remedies.

On November 7, 2011, Complainant initiated EEO Counselor contact and alleged that the Agency had not fully complied with its March 8, 2011, decision. The EEO Counselor advised Complainant that she should pursue her claim of noncompliance with the Department's Compliance Division, Office of Compliance, Policy and Training (OCPT). However, Complainant and her attorney insisted on pursuing the matter as a new complaint and filed a formal complaint on February 28, 2012. Therein, Complainant alleged that the Agency subjected her to discrimination in reprisal for prior protected EEO activity when the Agency failed to implement remedies ordered in a March 8, 2011, consolidated final decision on Complainant's Request for Compensatory Damages and Attorney Fees regarding two prior EEO complaints, Agency Nos. FS-2009-00116, and FS-2009-0505.

In the final decision that is at issue here, the Agency dismissed Complainant's complaint for failure to state a claim because it determined that the complaint should be processed under 29 C.F.R. � 1614.504(a), and not as a new EEO complaint. Nevertheless, the Agency noted that Complainant's claims would be directed to OCPF for processing under 29 � 1614.504(a) and addressed in a "separate cover."

Complainant appealed the matter to the Commission, and in our previous decision, the Commission affirmed the Agency's dismissal. Our decision determined that there was no evidence that Complainant provided written notice to the Agency EEO Director of her belief that the Agency was not in compliance with its March 8, 2011, final decision. However, the Commission remanded the matter to the Agency in order to ensure that Complainant's claim of non-compliance be considered by the Agency and ordered the Agency to comply with the orders contained in its March 8, 2011, decision.

In her request for reconsideration, Complainant maintains that her claims should be processed as a new EEO complaint instead of an allegation of noncompliance. Complainant also maintains that the March 8, 2011, final decision did not provide her with information about how to properly allege noncompliance, and that the Agency does not even have an EEO Director.

Upon review, we note that it is clear that the Agency failed to apprise Complainant of the proper procedure for alleging non-compliance with its final decision under 29 CF.R. � 1614.504(a) when it issued its March 8, 2011, decision. Consequently, we remind the Agency that it should henceforth include notice of the proper procedure for alleging noncompliance of final decisions in its decisions.

Complainant maintains that her claims should be processed as a new complaint instead of an allegation of noncompliance. The record indicates that the Agency processed Complainant's claims of noncompliance under 29 C.F.R. � 1614.504(a) and informed Complainant that the claims would be addressed in a letter of determination. We find that our previous decision did not err when it found that this matter is more appropriately addressed as an allegation of noncompliance, and as such, should be processed under 29 C.F.R. � 1614.504(a). Further, our previous decision ordered the Agency to comply with the March 2011 final order, which we conclude was appropriate under these particular circumstances. Hence, we find that Complainant failed to show that our previous decision clearly erred.

Accordingly, 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. 0120130287 remains the Commission's decision. There is no further right of administrative appeal on the decision of the Commission.

ORDER

To the extent it has not already done so, the Agency is ORDERED, within forty-five (45) calendar days of the date this decision becomes final, to take the following actions consistent with the remedies ordered in its March 8, 2011 final decision:

1. The Agency shall award Complainant $11,820.00 in attorney fees and costs, $2,078.99 in pecuniary damages, and $10,000.00 in non-pecuniary compensatory damages.

2. Provide Complainant with a one-year detail and a one-year retroactive promotion to a GS-12, from March 1, 2009 to February 28, 2010, with back pay, interest and lost benefits in equitable remedy.

3. Provide Complainant additional attorney's fees for work performed on the matter of compensatory damages. A request for payment, if it has not already been submitted, must be submitted by Complainant or her attorney to the Agency's Chief, Employment Adjudication Division, Office of Adjudication, 1400 Independence Avenue, S.W., Washington, D.C. 20250-9440, in accordance with the provisions of 29 C.F.R. � 1614.501(e)(2), within thirty (30) days of receipt of this decision.

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 evidence mat 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 (Z0610)

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 25, 2014

Date

2

0520130416

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

2

0520130416