EEOC Request No. 0520150377
10-01-2015
EEOC Request No. 0520150377 (October 1, 2015)
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Margaret M.,1
Complainant,
v.
Tom J. Vilsack,
Secretary,
Department of Agriculture
(Office of the Chief Financial Officer),
Agency.
Request No. 0520150377
Appeal No. 0120132105
Agency No. OCFO201100537
DECISION ON REQUEST FOR RECONSIDERATION
The Agency timely requested reconsideration of the decision in EEOC Appeal No. 0120132105 (April 24, 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).
The previous decision found that Complainant was discriminated against based on her race (African American), color (dark complexion), and age (53) when she was not selected for a Financial Management Assistant, GS-07 position. The decision ordered the Agency to offer Complainant the position or a substantially equivalent position; pay the appropriate amount of back pay with interest, and other benefits due Complainant; provided for a supplemental investigation on compensatory damages; provide eight (8) hours of training for the responsible management officials regarding their responsibilities under EEO laws; and consider taking disciplinary action against the responsible management officials.
In its request for reconsideration, the Agency states that one Selecting Official is no longer in a supervisory position. The Agency also states that Complainant is on disability retirement, effective May 8, 2012, and asks that it not be required to offer Complainant a position. Finally, the Agency requests that it only pay back pay in lieu of compensatory damages.
In response to the Agency's request, Complainant does not ask to be offered a position. However, she requests compensatory damages and states that even though one selecting official may not be a supervisor any more, the person should still be required to take training.
We find that due to Complainant's disability retirement, she is entitled to back pay up to the date she went on disability retirement. She is also entitled to a compensatory damages award and must be given the opportunity to provide evidence of such. Finally, we agree that both selecting officials should be required to take the EEO training as long as they continue to be employed by the Agency.
As such, we MODIFY the Order as set forth below. The decision in EEOC Appeal No. 0120132105 remains the Commission's decision as MODIFIED herein. 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
The Agency is ordered to take the following remedial action within one hundred and twenty (120) days of the date this decision becomes final:
1. The Agency shall pay back pay from March 28, 2011 until the date Complainant retired on disability. The Agency shall determine the appropriate amount of back pay, with interest, and other benefits due Complainant, pursuant to 29 C.F.R. � 1614.501. 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. 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."
2. The Agency will conduct a supplementary investigation on compensatory damages, including providing Complainant an opportunity to submit evidence of pecuniary and non-pecuniary damages. For guidance on what evidence is necessary, the parties are directed to EEOC Enforcement Guidance: Compensatory and Punitive Damages Available under � 102 of the Civil Rights Act of 1991 (July 14, 1992) (available at eeoc.gov). The Agency shall complete the investigation and issue a final decision appealable to the EEOC determining the appropriate amount of damages.
3. The Agency shall provide eight (8) hours of EEO training to the individuals identified in EEOC Appeal No. 0120132105 as "SO1" and "SO2" regarding their responsibilities under EEO laws.
4. The Agency shall consider taking disciplinary action against SO1 and SO2. The Commission does not consider training to be disciplinary action. The Agency shall report its decision to the Compliance Officer. If the Agency decides not to impose discipline, it shall set forth the reason(s) for its decision not to impose discipline. If SO1 or So2 have left the Agency's employ, the Agency shall furnish documentation of their departure dates.
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 of the Agency's calculation of backpay and other benefits due Complainant, including evidence that the corrective action has been implemented.
POSTING ORDER (G0914)
The Agency is ordered to post at its National Finance Center in New Orleans, Louisiana 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 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.
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 (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 Complainants 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
October 1, 2015
__________________
Date
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.
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