0520120305
03-12-2013
Delores M. Pritchett, Complainant, v. Michael B. Donley, Secretary, Department of the Air Force, Agency.
Delores M. Pritchett,
Complainant,
v.
Michael B. Donley,
Secretary,
Department of the Air Force,
Agency.
Request No. 0520120305
Appeal No. 0720110022
Hearing No. 480-2009-0667X
Agency No. 5K0M06016
DENIAL
The Agency timely requested reconsideration of the decision in Delores M. Pritchett v. Department of the Air Force, EEOC Appeal No. 0720110022 (February 1, 2012). 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(b).
BACKGROUND
Complainant, a GS-4 Secretary filed an EEO complaint alleging that she was discriminated against on the bases of race (African-American), color (black), and in reprisal for prior protected EEO activity (arising under Title VII), when: (1) on July 9, 2006, she was reassigned from one unit on March Air Reserve Base (ARB) to another unit, but within the same position, grade, and series; (2) she was detailed as a GS-06 secretary but not paid level GS-06 pay; and (3) she was subjected to a hostile work environment.
An EEOC Administrative Judge (AJ) held a hearing on December 14 and 15, 2010, and issued a decision on January 24, 2011. The AJ concluded that Complainant had failed to establish discrimination with respect to claims (2) and (3) on any bases but that she had established reprisal discrimination (but not race or color discrimination) with respect to claim (1). As a remedy, the AJ ordered the Agency to pay Complainant non-pecuniary, compensatory damages in the amount of $2,000; to provide appropriate EEO training for a manager, identified as S2; and to post a notice at the Agency that discrimination had occurred.
Complainant and the Agency both filed appeals with the Commission. The Complainant requested $25,000, in compensatory damages and reimbursement for $250.00 attorney's consultation fee. The Agency requested that the AJ's decision be reversed. The Commission affirmed the AJ's decision and ordered $2,000.00 in non-pecuniary compensatory damages. The Commission denied Complainant's request for attorney's fees because she was never represented by an attorney.
ARGUMENTS ON RECONSIDERATION
In the Agency's request for reconsideration, the Agency maintains that the decision involved an erroneous interpretation of material facts. The Agency maintains that the record is flawed in that the rotation times contained in the record were not accurate. Thus, the Agency attempts to provide evidence, which was not presented during the hearing, to prove its assertion. The evidence includes time cards and rotational records. The Agency requests that we review this new evidence and reconsider our decision accordingly.
Complainant maintains that the new evidence should not be considered. Complainant explains that this evidence was requested during discovery and was never produced by the Agency. Complainant asks that the previous decision should be upheld.
ANALYSIS AND FINDINGS
We remind the Agency 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) (rev. Nov. 9, 1999), at 9-17. A reconsideration request is an opportunity to demonstrate that the previous decision involved a clearly erroneous interpretation of material fact or law; or (2) will have a substantial impact on the policies, practices, or operations of the Agency. Here, we find that the Agency has failed 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.
Because the documents and argument submitted with the request were not included in the record for the original appeal, this documentation has not previously been considered by the Commission and is therefore new evidence, which will generally not be accepted in a request for reconsideration. See Houser v. Dep't of Homeland Security, EEOC Request No. 0520110548 (Oct. 7, 2011) citing Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110) (rev. Nov. 9, 1999), � VI(A)(3). We may accept new evidence, however, if the parties affirmatively demonstrate it was not previously available despite the exercise of due diligence. Id.; Est. of Petersen v. Dep't of Transp., EEOC Appeal No. 07A50016 (September 21, 2005). Here, we find no such demonstration by the Agency. Accordingly, the decision in EEOC Appeal No. 0720110022 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 previous decision's Order as set forth below.
ORDER
The Agency shall take the following remedial actions:
1. Within 30 days of the date this decision becomes final, the Agency shall pay Complainant non-pecuniary compensatory damages in the amount of $2,000.
2. Within 180 days of the date this decision becomes final, the Agency shall provide EEO training to the responsible management officials, including S2, regarding their responsibilities under EEO laws and the prohibition against retaliation for protected EEO activity.
3. Within 180 days of the date this decision becomes final, the Agency shall consider taking appropriate disciplinary action against the responsible management officials, including, S2. The Agency shall report its decision to the Compliance Officer, referenced herein. 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 any of the responsible management officials have left the Agency's employment, then the Agency shall furnish documentation of their departure date(s).
The Agency shall send evidence that they have complied with this Order to the Compliance Officer as referenced herein.
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.
POSTING ORDER
The Agency is ordered to post at its March Air Reserve Base copies of the attached notice. Copies of the notice, after being signed by the Agency's duly authorized representative, shall be posted by the Agency within thirty (30) calendar days of the date this decision becomes final, and shall remain posted for sixty (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 at the address cited in the paragraph entitled "Implementation of the Commission's Decision," within ten (10) calendar days of the expiration of the posting period.
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.
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
___3/12/13_______________
Date
2
0520120305
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0520120305