0120130287
03-13-2013
Elizabeth Shimp, Complainant, v. Tom J. Vilsack, Secretary, Department of Agriculture (Forest Service), Agency.
Elizabeth Shimp,
Complainant,
v.
Tom J. Vilsack,
Secretary,
Department of Agriculture
(Forest Service),
Agency.
Appeal No. 0120130287
Agency No. FS-2012-00082
DECISION
Complainant filed a timely appeal with this Commission from the Agency's final decision dated September 13, 2012, dismissing a formal complaint of unlawful employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq.
BACKGROUND
During the period at issue, Complainant worked as a GS-11 Botanist at an Agency facility in Vienna, Illinois.
On February 28, 2012, Complainant filed a formal EEO complaint alleging the Agency subjected her to discrimination in reprisal for prior protected activity when:
ongoing as of the filing date of the subject EEO complaint, Agency management failed to implement remedies ordered in a March 8, 2011 consolidated final decision on Request for Compensatory Damages and Attorney Fees regarding two prior EEO complaints: FS-2009-00116, and FS-2009-0505.
On September 13, 2012, the Agency issued the instant final decision. The Agency stated that on September 30, 2010, the Agency issued a consolidated final decision, which found discrimination with respect to claims which Complainant had raised in Agency Complaint Nos. GS-2009-00116 and FS-2009-00505, and ordered Complainant to submit verification of compensatory damages and attorney fees. The Agency found that Complainant had done so, and that on March 8, 2011, the Agency issued a second final decision, regarding the two complaints and awarded various remedies.
Thereafter, Complainant determined that the remedies ordered in the Agency's March 8, 2011 decision had not been satisfactorily implemented and initiated EEO Counselor contact on November 7, 2011. According to the Agency, the EEO Counselor advised Complainant that she was alleging non-compliance with an Agency final decision, and that she should instead pursue a "noncompliance complaint with the Department's Compliance Division, Office of Compliance, Policy and Training (OCPT)."
The Agency found, however, that Complainant and her attorney insisted on proceeding with the informal complaint processing, and that Complainant filed the subject formal complaint n February 28, 2012.
In the instant final decision, the Agency dismissed the formal complaint pursuant to 29 C.F.R. � 1614.107(a)(1), for failure to state a claim. Specifically, the Agency found that Complainant's claim of Agency noncompliance with the terms of the March 8, 2011 final decision must be processed in accordance with 29 C.F.R. � 1614.504(a), and not as a new EEO complaint. The Agency concluded by indicating that under separate cover, "Complainant's concerns will be directed to OCPT for processing."
The instant appeal followed.
ANALYSIS AND FINDINGS
In the instant case, we note that when a complainant believes that an "agency has failed to comply with the terms of . . . [an agency] decision, the complainant shall notify the EEO Director, in writing, of the alleged noncompliance within 30 days of when the complainant knew or should have known of the alleged noncompliance." 29 C.F.R. � 1614.504(a). In such cases, a complainant has the right to appeal to the Commission only after receiving a response from the agency or if the agency has failed to respond within 35 days. 29 C.F.R. � 1614.504(b).
There is no evidence in the record, and Complainant does not demonstrate, that she 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. We therefore determine that the instant formal complaint was properly dismissed.
However, we will ensure that Complainant's claim of non-compliance with the Agency's March 8, 2011 final decision, though improperly raised through the regular EEO complaint process, will nonetheless be considered by the Agency in accordance with the Order below.
In summary, the Agency's dismissal of the instant formal complaint is AFFIRMED. However, in order for the Commission to monitor compliance with the Agency's finding of discrimination this matter is REMANDED to the Agency for further processing in accordance with the ORDER below.
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 that 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.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
The Commission may, in its discretion, reconsider the decision in this case if the Complainant or the Agency submits a written request containing arguments or evidence which tend to establish 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.
Requests to reconsider, with supporting statement or brief, must be filed with the Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision or within twenty (20) calendar days of receipt of another party's timely request for reconsideration. See 29 C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at 9-18 (November 9, 1999). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. In the absence of a legible postmark, the request to reconsider shall be deemed timely filed if it is received by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. � 1614.604. The request or opposition must also include proof of service on the other party.
Failure to file within the time period will result in dismissal of your request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted with your request for reconsideration. The Commission will consider requests for reconsideration filed after the deadline only in very limited circumstances. See 29 C.F.R. � 1614.604(c).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (T0610)
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 your appeal with the Commission, until such time as the Agency issues its final decision on your complaint. 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. If you file a request to reconsider and also file a civil action, 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
March 13, 2013
__________________
Date
2
0120130287
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120130287