0520160375
03-02-2017
Kenneth W.,1 Complainant, v. Lisa S. Disbrow, Acting Secretary, Department of the Air Force (National Guard Bureau), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Kenneth W.,1
Complainant,
v.
Lisa S. Disbrow,
Acting Secretary,
Department of the Air Force
(National Guard Bureau),
Agency.
Request No. 0520160375
Appeal No. 0720120031
Hearing No. 420-2009-00091X
Agency No. T-0585-MS-F107-RO
DECISION ON REQUEST FOR RECONSIDERATION
On November 19, 2015, Complainant timely requested reconsideration with the Equal Employment Opportunity Commission (EEOC or Commission) of the decision in EEOC Appeal No. 0720120031 (October 30, 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 his complaint, Complainant was an Air National Guard Ground Power Technician (dual-status technician) at the Agency's Key Field Air National Guard Base in Meridian, Mississippi.
Complainant filed an equal employment opportunity (EEO) complaint alleging that the Agency discriminated against him based on his race (African-American) when he was not selected for a Powered Support Systems Mechanic position, WG-5378-08/10, that was advertised under vacancy announcement number 06-0606.
Following an investigation Complainant requested a hearing which was held before an Equal Employment Opportunity Administrative Judge (AJ). The AJ found that Complainant was discriminated against based on his race when he was not selected. As relief the AJ ordered, in part, back pay from the date the selectee was selected to the date he reached age 60. The AJ recited Complainant's testimony that had he been awarded the Powered Support Systems Mechanic position, his plan was to work therein until the age of retirement, which is 60.
The Agency subsequently issued a final action rejecting both the AJ's finding of discrimination and relief ordered, and filed an appeal.
In our prior appellate decision we reversed the Agency's final action, finding that the AJ's finding of discrimination was supported by substantial evidence. But we modified the relief the AJ ordered. Specifically, we agreed with the Agency's argument that back pay and benefits should not be calculated through the date that Complainant reached age 60 because he separated from the Air National Guard on December 20, 2007. We reasoned that that Complainant voluntarily resigned on December 20, 2007, and he did not allege this was a constructive discharge based on discrimination.
On request Complainant contends, as he did previously, that he should receive back pay and benefits until he turns 60 - when he would have retired had the discrimination not occurred. He argues that if the Commission is not persuaded by this argument, back pay and benefits should be paid through the date of his "actual retirement which was November 7, 2009, rather than December 7, 2007."
Prior to issuing our appellate decision the record showed that effective December 20, 2007, Complainant was honorably discharged from the Air National Guard of Mississippi and transferred to the United States Air Force. He was issued a "Report of Separation and Record of Service" for his time in the Air National Guard. On request Complainant submits documentation showing that effective November 7, 2009, he retired from the Department of the Air Force.
We emphasize that a request for reconsideration is not a second appeal to the Commission. See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at p. 9-18, Chap. 9 � VII.A (Aug. 5, 2015). Rather, 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. Complainant has not done so here. Specifically, he has not showed that our appellate decision involved a clearly erroneous interpretation of material fact or law in finding he was not entitled to back pay with benefits to his expected retirement at age 60 from the Air National Guard since he voluntarily resigned therefrom on December 20, 2007, and hence back pay with benefits should run until this date.
After reviewing the previous decision and the entire record, the Commission finds that Complainant's 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. 0720120031 remains the Commission's decision. There is no further right of administrative appeal on the decision of the Commission on this request.
ORDER
The Agency is ORDERED to take the following remedial actions within one hundred twenty (120) days of the date on which this decision becomes final:
1. The Agency shall pay the Complainant all civilian monetary back pay and benefits, including Cost of Living Adjustments (COLAs), that he would have received had he been selected for the WG-5378-10 Powered Support Systems Mechanic position at issue. The civilian back pay and COLAs shall be calculated from the same effective date of the selectee's placement in that position until the date of his resignation from the Agency (meaning the Air National Guard of Mississippi).
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 within 120 days of the date this decision becomes final. 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 shall pay the Complainant $5,000 in non-pecuniary compensatory damages.
3. The Agency shall pay the Complainant $11,242.65 in attorney's fees and costs.
4. The Agency shall provide 16 hours of in-person EEO training too all responsible selection panel members and selecting officials in this case, with a focus on discrimination under Title VII and Merit Systems principles.
5. The Agency shall consider taking disciplinary action against the responsible management officials. The Commission does not consider training to be disciplinary action. If the management officials have left the Agency, the Agency must provide the EEOC Compliance Officer with documentation that establishes the separation date, along with any other documentation the Compliance Officer deems necessary.
6. The Agency shall post the attached notice, as described 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 all corrective action has been taken.
POSTING ORDER (G1016)
The Agency is ordered to post at its Key Field Air National Guard Base in Meridian, Mississippi 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 was issued, 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 (H1016)
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 the date this decision was issued. 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 (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
March 2, 2017
__________________
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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