0520160278_0520160279
07-19-2016
Latarsha A.,1 Complainant, v. Norman C. Bay, Chairman, Federal Energy Regulatory Commission, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Latarsha A.,1
Complainant,
v.
Norman C. Bay,
Chairman,
Federal Energy Regulatory Commission,
Agency.
Request Nos. 0520160278& 0520160279
Appeal Nos. 0120123215 & 0120131079
Agency Nos. EEO-2010-MAL-001
EEO-2011-MAL-001
EEO-2011-MAL-002
EEO-2011-MAL-003
EEO-2011-MAL-005
EEO-2012-MAL-002
DECISION ON REQUEST FOR RECONSIDERATION
The Agency timely requested reconsideration of the consolidated decision in EEOC Appeal Nos. 0120123215 & 0120131079 (March 15, 2016). 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 this complaint, Complainant worked as a GS-15 Trial Attorney at the Agency's Office of Administrative Litigation (OAL) in Washington, D.C. In May 2010, the Agency changed Complainant's duty station from its Headquarters building to another building in Washington, D.C.
Complainant filed six EEO complaints, encompassing 22 claims. Complainant alleged discrimination on the basis of disability, age, religion (Jewish), and reprisal. Her claims included allegations of denials of reasonable accommodation, as well as issues with her performance evaluations.
Complainant did not request a hearing and the Agency issued its final decision concluding no discrimination was established based on the evidence developed during its investigation of Complainant's claims. Our previous decision modified the Agency's decision. It found that Complainant was denied reasonable accommodation with respect to seven claims. The decision affirmed the Agency's findings of no discrimination with regard to the remaining 15 claims.
In its request for reconsideration, the Agency expresses its disagreement with the previous decision. It argues that the remedial actions ordered are moot or unnecessary, and that it acted in good faith. However, we are not convinced by the Agency's arguments. We emphasize that a request for reconsideration is not a second appeal to the Commission. See EEO MD-110, Ch. 9, � VII.A. 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. The Agency has not done so here.
After reviewing the previous decision and the entire record, the Commission finds that the 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 Nos. 0120123215 & 0120131079 remains the Commission's decision. 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
To the extent that the Agency has not already done so, the Agency is ordered to undertake the following remedial actions:
1. Within sixty (60) calendar days after this decision becomes final, the Agency shall provide Complainant with reasonable accommodation by undertaking the following actions: 1) install and maintain in working order at its 1100 First Street NE Washington, D.C., facility automatic doors at its third-floor entrances/exits, the lobby, and the entrance/exit to the garage area; 2) ensure that all accessible entrances and passageways are clear and unobstructed; 3) henceforth ensure that Complainant is granted assistance with packing and transport related to office moves; 4) ensure that Complainant is henceforth allowed to telework during any prolonged periods of loud construction noise at the office; and 5) replace fluorescent lighting in hearings rooms in which Complainant works with non-fluorescent lighting.
2. Within 120 calendar days after this decision becomes final, the Agency shall provide eight hours of in-person EEO training to all Washington, D.C., OAL management officials and supervisors, with a particular emphasis on the Agency's obligation to provide reasonable accommodations to individuals with disabilities.
3. The Agency shall conduct a supplemental investigation pertaining to Complainant's entitlement to compensatory damages incurred as a result of the Agency's discriminatory actions in this matter. The Agency shall issue a final decision determining Complainant's entitlement to compensatory damages within 60 calendar days after this decision becomes final.
4. The Agency shall post a notice in accordance with the paragraph below.
POSTING ORDER (G0914)
The Agency is ordered to post at its Washington, D.C. facilities at 888 First Street, NE and 1100 First Street, NE 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/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 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 (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
July 19, 2016
__________________
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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0520160278
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0520160278 & 0520160279