0520150357
10-01-2015
Garry H.,1 Complainant, v. Julian Castro, Secretary, Department of Housing and Urban Development, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Garry H.,1
Complainant,
v.
Julian Castro,
Secretary,
Department of Housing and Urban Development,
Agency.
Request No. 0520150357
Appeal No. 0720130029
Hearing No. 443-2011-00159X
Agency No. HUD001142010
DECISION ON REQUEST FOR RECONSIDERATION
The Agency requested reconsideration of the decision in EEOC Appeal No. 0720130029 (February 12, 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(b).
By regulation, requests must be filed within thirty (30) calendar days after the party receives the previous decision. 29 C.F.R. � 1614.405(b). A document is timely if it is received or postmarked before the expiration of the applicable filing period or, in the absence of a legible postmark, if it is received by mail within five days of the expiration of the applicable filing period. 29 C.F.R. � 1614.604(b).
It is noted that the Commission's previous decision included a Certificate of Mailing indicating that, for purposes of timeliness, the Commission will presume that the decision was received within five (5) calendar days of the date on which it was mailed, February 12, 2015. The Agency is presumed to have received the previous decision no later than February 17, 2015. Thirty days from that date is March 19, 2015. As evidenced by the certificate of mailing provided by the Agency, the Agency mailed the request on March 20, 2015, which was beyond the 30-day limit set by regulation. No reason was provided for the delay.
For the foregoing reasons, the Agency's request is denied. The decision in EEOC Appeal No. 0720130029 remains the Commission's decision. There is no further right of administrative appeal on the decision of the Commission on this request. The Agency is directed to comply with the Order set forth below.
ORDER (E0610)
The Agency is ordered to undertake the following remedial relief which, unless otherwise specified, shall be provided within sixty (60) calendar days of the date on which this decision becomes final:
1. The Agency shall provide Complainant with a reasonable accommodation by undertaking at least one of the following actions: 1) allow Complainant to telework four days per week, with 10-hour workdays; or 2) allow Complainant to telework three hours per week and report to the Milwaukee office one day per week, with 10-hour workdays. The parties shall immediately engage in the interactive process to determine which reasonable accommodation is best for Complainant to perform the essential functions of his Financial Analyst position.
2. Expunge all documentation pertaining to Complainant's October 2011 reprimand from all Agency files.
3. The Agency shall pay Complainant $15,000 in non-pecuniary compensatory damages.
4. The Agency shall provide a minimum of eight (8) hours in-person EEO training to all supervisors and management in its Minneapolis and Milwaukee offices, with an emphasis on the Agency's responsibility to provide employees with a reasonable accommodation for disabilities as well as its general obligations under the Rehabilitation Act. The training shall also emphasize management's obligations to prevent retaliation under EEO regulations.
5. The Agency shall restore any leave (including unpaid leave) taken on Thursdays by Complainant because he was unable to drive to the Minneapolis office, beginning on September 8, 2011, until the date Complainant is provided with the ordered effective accommodation.
6. The Agency shall pay Complainant proven attorney's fees and costs in accordance with the Order below.
7. The Agency shall post a notice of this finding of discrimination in accordance with the Order below.
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 verifying that the corrective action has been implemented.
POSTING ORDER (G0914)
The Agency is ordered to post at its Minneapolis, Minnesota and Milwaukee, Wisconsin facilities 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 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 (0610)
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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