Michelle G.,1 Complainant,v.Robert Wilkie, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

Dec 20, 2018

0520180556 (E.E.O.C. Dec. 20, 2018)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Michelle G.,1
Complainant,

v.

Robert Wilkie,
Secretary,
Department of Veterans Affairs,
Agency.

Request No. 0520180556

Appeal No. 0120162187

Agency No. 200I-0317-2010100673

DECISION ON REQUEST FOR RECONSIDERATION

On July 17, 2018, Complainant, through counsel, timely requested that the Equal Employment
Opportunity Commission (EEOC or Commission) reconsider its decision in EEOC Appeal No.
0120162187 (June 20, 2018). EEOC regulations provide that the Commission may, in its
discretion, grant a request to reconsider any previous Commission decision issued pursuant to 29
C.F.R. § 1614.405(a), 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).

In EEOC Appeal No. 0120123071 (May 28, 2015), the Commission found that the Agency
discriminated against Complainant based on disability (idiopathic motor and sensory neuropathy
with poor circulation in her legs) when it did not permit her to use a space heater from May 7,
2008 to August 10, 2011, a denial of reasonable accommodation. The Commission found no
discrimination on Complainant’s remaining allegations, of which there were many.

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.

0520180556

2
In accordance with the Commission’s order in EEOC Appeal No. 0120123071, the Agency
conducted a supplemental investigation into Complainant’s entitlement to compensatory damages
for the above discrimination and calculated them in a FAD. It awarded Complainant $30,994.90
in compensatory damages. Of that amount, $994.90 represented reimbursement for out-of-pocket
medical expenses and the rest was an award for non-pecuniary losses.

Complainant filed an appeal. She contended that she was entitled to $584,983.20 in damages.
Specifically, she claimed entitlement to $284,983.20 for past and future pecuniary losses and
$300,000.00 for non-pecuniary losses, the maximum allowable under law. In our previous
decision, we affirmed the FAD. We did so largely because Complainant, as applicable, did not
prove a nexus between the discrimination and her losses, resulting in no award, or only proved a
partial nexus, resulting in a reduced award. Also, we found that Complainant was not entitled to
back pay because this remedy was not ordered in EEOC Appeal No. 0120123071. After the event
for which discrimination was found occurred, Complainant was terminated for cause. We advised
Complainant that the Merit Systems Protection Board (MSBP), which reversed the removal, had
jurisdiction for remedies flowing from the termination, such as back pay. The instant request for
reconsideration followed.

Complainant did not submit a statement or argument with her request, instead doing so on August
14, 2018, in an untimely filed brief.2 The request, which contains no timely argument, 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. 0120162187 remains the Commission's decision. There
is no further right of administrative appeal on the decision of the Commission on this request.

ORDER

To the extent it has not already done so, within sixty (60) calendar days of the date that this decision
is issued, the Agency is directed to issue a check to Complainant in the amount of $30,994.90.

The Agency is further directed to submit a report of compliance in digital format as provided in
the statement entitled “Implementation of the Commission's Decision.” The report shall be
submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). The report
shall include supporting documentation verifying that the corrective action has been implemented.

IMPLEMENTATION OF THE COMMISSION’S DECISION (K0618)
Under 29 C.F.R. § 1614.405(c) and § 1614.502, compliance with the Commission’s corrective
action is mandatory. Within seven (7) calendar days of the completion of each ordered corrective
action, the Agency shall submit via the Federal Sector EEO Portal (FedSEP) supporting documents
in the digital format required by the Commission, referencing the compliance docket number under
which compliance was being monitored. Once all compliance is complete, the Agency shall

2 As recounted in our previous decision, 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 that decision.
0520180556

3
submit via FedSEP a final compliance report in the digital format required by the Commission.
See 29 C.F.R. § 1614.403(g). The Agency’s final report must contain supporting documentation
when previously not uploaded, and the Agency must send a copy of all submissions to the
Complainant and his/her representative.
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.

0520180556

4
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

December 20, 2018
Date