0520070874
09-26-2007
Donzetta T. Lindsay, Complainant, v. R. James Nicholson, Secretary, Department of Veterans Affairs, Agency.
Donzetta T. Lindsay,
Complainant,
v.
R. James Nicholson,
Secretary,
Department of Veterans Affairs,
Agency.
Request No. 0520070874
Appeal No. 0720070016
Hearing No. 140200600005X
Agency No. 200I03192005101144
DENIAL
The agency timely requested reconsideration of the decision in Donzetta
T. Lindsay v. Department of Veterans Affairs, EEOC Appeal No. 0720070016
(July 26, 2007). 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).
In the appellate decision the agency argued that while it accepted
the EEOC Administrative Judge's (AJ) finding that complainant had
been discriminated against due to her race and in retaliation for
prior EEO activity, it rejected the relief ordered. Specifically,
the agency rejected the award of $50,000.00 in compensatory damages
and attorney's fees1 in the amount of $25,757.41. The Commission
found that the $50,00.00 compensatory damages award was supported by the
substantial evidence of the record and was consistent with case precedent.
The Commission also determined that the attorney's hourly rate requested
was reasonable and found that complainant's counsel was entitled to
attorney's fees in the amount of $25,757.41. The Commission modified
the agency's final order and remanded the case back to the agency to
take corrective action in accordance with the Commission's decision
and Order.
In the request for reconsideration, the agency argues that the Commission
erred when it held that the $50,000.00 compensatory damages award was
supported by the substantial evidence of the record. The agency maintains
that the award is not consistent with case precedent and requests that
the Commission reconsider its decision and award compensatory damages
in a lesser amount, consistent with the relevant evidence, controlling
law and the Commission's guidance.
After reconsidering 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(b). The Commission finds that the agency failed
to show that the appellate decision involved a clearly erroneous
interpretation of material fact or law or that the appellate decision
will have a substantial impact on the policies, practices, or operations
of the agency. Therefore, it is the decision of the Commission to
deny the request. Further, with respect to the agency's arguments
in its request for reconsideration, the Commission finds that these
same arguments were presented in the appellate decision and were fully
addressed there. We find, the agency has provided no new information
or arguments to support its claim. Accordingly, the decision in
EEOC Appeal No. 0720070016 remains the Commission's final 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
To the extent it has not already done so, the agency is ordered to take
the following remedial action:
1. Within thirty (30) calendar days of the date of this decision becomes
final, the agency shall appoint complainant to the position of Supervisory
Veterans Service Representative, GS-996-13, retroactive to January 23,
2005.
2. The agency shall determine the appropriate amount of back pay,
with interest, and other benefits due complainant, retroactive to
January 23, 2005, pursuant to 29 C.F.R. � 1614.501, no later than sixty
(60) calendar days after the date this decision becomes final. The
complainant shall cooperate in the agency's efforts to compute the
amount of back pay and benefits due, and shall provide all relevant
information requested by the agency. If there is a dispute regarding
the exact amount of back pay and/or benefits, the agency shall issue
a check to the complainant for the undisputed amount within sixty (60)
calendar days after the agency determines the amount it believes to be
due. The 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."
3. Within thirty (30) calendar days of the date of this decision is
final, the agency shall issue complainant a check for compensatory
damages in the amount of $50,000.00.
4. Within thirty (30) calendar days of the date this decision is final,
the agency shall issue complainant's counsel a check for fees and costs
in the amount of $25,757.41.
5. Within thirty (30) calendar days of the date this decision is final,
the agency shall consider taking disciplinary action against the Assistant
Director and Assistant Service Center Managers at the Regional Office
in Columbia, South Carolina, identified as being responsible for the
discriminatory action perpetrated against complainant. The agency shall
report its decision. 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.
6. Within thirty (30) days of the date this decision is final, the
agency shall afford EEO training regarding discrimination in hiring
and retaliation for prior EEO activity to the Assistant Director and
Assistant Service Center Managers at the Regional Office in Columbia,
South Carolina.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)
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 19848,
Washington, D.C. 20036. 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 (G0900)
The agency is ordered to post at its Regional Office in Columbia,
South Carolina 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.
ATTORNEY'S FEES (H0900)
If complainant has been represented by an attorney (as defined by
29 C.F.R. � 1614.501(e)(1)(iii)), he/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 this
decision becoming final. The agency shall then process the claim for
attorney's fees in accordance with 29 C.F.R. � 1614.501.
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (Q0900)
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 (Z1199)
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 that the Court appoint
an attorney to represent you and that the Court 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 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
__9/26/07________________
Date
1 On appeal, the agency did not challenge counsel's compensation for hours
expended on complainant's case but challenged the hourly rate requested.
The agency also did not challenge costs requested by counsel in the
amount of $2900.41. In the request for reconsideration, the agency does
not challenge the award of attorney's fees in the amount of $25,757.41.
??
??
??
??
2
0520070874
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
5
0520070874