Iris M.,1 Complainant,v.Tom J. Vilsack, Secretary, Department of Agriculture (Forest Service), Agency.Download PDFEqual Employment Opportunity CommissionFeb 16, 20170120143119 (E.E.O.C. Feb. 16, 2017) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Iris M.,1 Complainant, v. Tom J. Vilsack, Secretary, Department of Agriculture (Forest Service), Agency. Appeal No. 0120143119 Agency No. FS-2009-00331 DECISION On September 2, 2014, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s September 30, 2010, final decision concerning her equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq., and the Age Discrimination in Employment Act of 1967, as amended, 29 U.S.C. § 621 et seq. For the following reasons, the Commission directs the Agency to comply with the final decision it issued on September 30, 2010. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Human Resources Specialist, GS-7, at the Agency’s Human Capital Management Office in Albuquerque, New Mexico. On May 8, 2009, Complainant filed an EEO complaint wherein she claimed that the Agency discriminated against her on the bases of her national origin (Hispanic), sex (female) and age (55) when: 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. 0120143119 2 1. In October 2008, management failed to equitably implement the “Cubicle Etiquette” policy, when she discovered she was directed to lower her music and others were not; 2. In late October 2008, management failed to adequately address her concerns regarding a male employee calling her derogatory names; 3. On November 9, 2008, management hired her for the GS-0201-07/09 Human Resources Specialist position at the GS-7 level, although she should have been selected at the GS-9 grade level; 4. On an unspecified date, management rated her performance “Fully Successful” instead of “Superior” for the rating period February 1, 2007 – September 20, 2008; 5. On September 22, 2009, management issued her a Letter of Warning citing unacceptable performance; and 6. On September 28, 2009, management rescheduled her performance evaluation until October 22, 2009, in order to monitor her performance based on the Letter of Warning, and thereafter verbally berated her work performance to include an event on October 1, 2009. At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). The Agency subsequently issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The Agency determined that Complainant proved that it subjected her to discrimination on the basis of age with respect to a hostile work environment consisting of derogatory comments related to age made to Complainant, but not as to the bases of sex and national origin. As remedies, the Agency stated that Complainant may be awarded damages, including compensatory damages, and that Complainant should submit a claim for damages. The Agency also stated that a referral should be made to its Office of Departmental Management’s Office of Human Resource Management for a determination of the appropriate disciplinary or other corrective action. The Agency further ordered a posting of a Notice at the location where the discrimination occurred that addresses the discrimination. Additionally, the Agency referenced possible entitlement to attorney’s fees. CONTENTIONS ON APPEAL On appeal, Complainant states that she submitted to the Agency on January 5, 2011, an itemization of her damages. Complainant contends that the Agency has failed to issue an award of damages or a decision with respect to damages. Complainant’s attorney maintains that he has sent correspondence requesting updates concerning the Agency’s decision and has 0120143119 3 not received any response. Complainant requests enforcement of her claim for damages which references a claimed past-pecuniary loss of $21,308.70, including $20,334.61 in lost wages and $974.09 in medical expenses. Complainant also seeks $10,000.00 in future pecuniary losses and $250,000.00 in non-pecuniary losses. ANALYSIS AND FINDINGS Upon review, we observe no indication that the Agency has issued a final decision on Complainant’s damage award pursuant to its final decision issued on September 30, 2010. There is also no evidence as to whether the Agency has taken action on the remedies awarded in its final decision issued on September 30, 2010. The Agency has not provided all the necessary documents on appeal, and it has not submitted a brief on appeal to address the matter at issue. The Agency shall issue a final decision that addresses Complainant’s claim for damages. We note that compensatory damages are not available under the ADEA. See Falks v. Department of the Treasury, EEOC Request No. 05960250 (September 5, 1996). Attorney’s fees also are not available under the ADEA. See Tellez v. Department of the Army, EEOC Request No. 05A41133 (March 18, 2005). In addition to addressing the damage claim, the Agency shall include in its final decision statements as to whether it has taken action as to the second, third and fourth enumerated items of relief set forth in its September 30, 2010 final decision. ORDER 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 September 30, 2010, decision: 1. The Agency shall issue a final decision with regard to the claim for damages that Complainant submitted on January 5, 2011. 2. In addition to addressing the issue of damages, the Agency shall in its final decision explain what measures it has taken with regard to the items enumerated in its final decision dated September 30, 2010, as: 2. a referral should be made to its Office of Departmental Management’s Office of Human Resource Management for a determination of the appropriate disciplinary or other corrective action; 3. advise Complainant of any back pay or benefits that may be due, and how those were calculated; and 4. posting of a Notice at the location where the discrimination occurred that addresses the discrimination. 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. 0120143119 4 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 (M0416) 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 Chap. 9 § VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. The requests may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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 0120143119 5 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 (R0610) This is a decision requiring the Agency to continue its administrative processing of your complaint. However, if you wish to file a civil action, you have the right to file such action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. 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 (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 Complainant’s 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 February 16, 2017 Date Copy with citationCopy as parenthetical citation