EEOC Request No. 0520150309
08-11-2015
EEOC Request No. 0520150309 (August 11, 2015)
Kelley P.,
Complainant,
v.
Loretta E. Lynch,
Attorney General,
Department of Justice
(Drug Enforcement Administration),
Agency.
Request No. 0520150309
Appeal No. 0120123094
Agency No. DEA201100927
DECISION ON REQUEST FOR RECONSIDERATION
The Agency timely requested reconsideration of the decision in Complainant v. Department of Justice, EEOC Appeal No. 0120123094 (March 9, 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).
At the time of events giving rise to the underlying complaint, Complainant worked as a Supervisory Special Agent at the Agency's facility in San Diego, California. Complainant filed an EEO complaint alleging that the Agency discriminated against him on the basis of sex (male) and reprisal when (1) on April 28, 2011 and June 29, 2011, his requests for a reassignment from the San Diego Field Division to the Washington, D.C. Metropolitan area, pursuant to the Married Core Series Transfer Policy (MCSTP) were denied by the Career Board, (2) on May 17, 2011, he learned that he was not selected for the position of Supervisory Special Agent, GS-1811-14, Washington Division, advertised under Vacancy Announcement Number CMB-11-287; and (3) on September 1, 2011, he was not selected for the position of Criminal Investigator (Group Supervisor), GS-1811-14, Washington Division, advertised under Vacancy Announcement Numbers CMB-11-207-1 and CMB-11-224-1.
Complainant did not request a hearing. Our prior appellate decision affirmed Agency's decision which concluded that Complainant failed to prove his discrimination claims with respect to claims 2 and 3 (non-selections). However, the prior appellate decision found that Complainant was discriminated against based on his sex, with respect to claim 1, involving the denial of his requests for reassignment.
In its request for reconsideration, the Agency expresses its disagreement with the previous decision. 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. 0120123094 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
1. Within thirty days of the date this decision becomes final, the Agency shall conduct a supplemental investigation to determine the compensatory damages under Title VII to which Complainant is entitled as a result of the discrimination identified herein. Complainant shall be given an opportunity to establish a causal relationship between the discrimination and any pecuniary or nonpecuniary losses. Complainant shall cooperate in the Agency's efforts to compute the amount of compensatory damages he is entitled to as a result of the discrimination and shall provide all relevant information requested by the Agency.
2. Within ninety days of the date this decision becomes final, the Agency shall issue a new final decision addressing the issue of compensatory damages. The final decision shall contain appeal rights to the Commission. The Agency shall submit a copy of the final decision to the Compliance Officer at the address set forth herein.
3. Within thirty days of the date this decision becomes final, if Complainant is employed by the Agency, the Agency shall tender an unconditional offer to Complainant to reassign Complainant to the Washington, D.C. area, to an appropriate position, at the appropriate grade level and step, consistent with his request under the Married Core Series Transfer Policy (MCSTP). The Agency's offer shall include a reasonable amount of time for Complainant to consider the offer of reassignment, but not less than 30 days.
4. The Agency shall provide eight hours of EEO training to the responsible management officials still employed by the Agency regarding their responsibilities under Title VII.
5. The Agency shall consider taking appropriate disciplinary action against the responsible management officials still employed by the Agency. 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, the Agency shall furnish documentation of their departure date(s).
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 that the corrective action has been implemented.
POSTING ORDER (G0914)
The Agency is ordered to post at its San Diego, California Office and Washington, D.C. Area Field Office in Arlington, Virginia, 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 becomes final, 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 at the address cited in the paragraph entitled "Implementation of the Commission's Decision," within 10 calendar days of the expiration of the posting period.
ATTORNEY'S FEES (H0610)
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.
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
August 11, 2015
__________________
Date
2
0520150309
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0520150309