Miriam B.,1 Complainant,v.Peter O’Rourke, Acting Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

Oct 12, 2018

0520180370 (E.E.O.C. Oct. 12, 2018)

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

Miriam B.,1
Complainant,

v.

Peter O’Rourke,
Acting Secretary,
Department of Veterans Affairs,
Agency.

Request No. 0520180370

Appeal No. 0720150022

Agency No. 200400202007101104

DECISION ON REQUEST FOR RECONSIDERATION

Complainant timely requested that the Equal Employment Opportunity Commission (EEOC or
Commission) reconsider its decision in EEOC Appeal No. 0720150022 (Mar. 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 the underlying complainant, Complainant alleged that the Agency subjected her to a hostile
work environment based upon reprisal (prior EEO activity) when her supervisor: (1) subjected her
to harassment; and (2) removed duties that were previously assigned. An EEOC Administrative
Judge (AJ) issued a decision awarding Complainant remedies after a finding that she was subjected
to retaliation.

Our previous decision determined that (1) the AJ's award of $102,839.18 in attorneys' fees was
supported by substantial evidence in the record; (2) the AJ's order requiring the Agency to post a
notice of the finding of discrimination in all Agency offices and distribute by mass e-mail was not

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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supported by substantial evidence in the record; (3) the AJ’s decision not to order the restoration
of Complainant’s duties was not supported by substantial evidence; and (4) the AJ’s award of all
other relief was supported by substantial evidence in the record.

Complainant claims she is entitled to a larger award of attorneys’ fees. The Commission
emphasizes that a request for reconsideration is not a second appeal to the Commission. Equal
Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at 9-18
(Aug. 5, 2015); see, e.g., Lopez v. Dep't of Agric., EEOC Request No. 0520070736 (Aug. 20,
2007). 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. 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 No. 0720150022 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 it has not already done so, the Agency is ORDERED to take the following actions
within 120 days from the date this decision is issued:

1. Restore to Complainant 18 hours of annual leave and 30.75 hours of sick leave;

2. Upgrade the performance evaluation at issue and provide any resulting awards;

3. Pay Complainant $1,500.00 in past pecuniary compensatory damages;

4. Pay Complainant $7,500 in non-pecuniary compensatory damages;

5. Pay Complainant $ 102,839.18 in attorney’s fees and $2,242.52 costs;

6. Provide Complainant with training substantially equivalent to the training provided at the
2007 Federal Dispute Resolution Conference. Complainant is to have input regarding the
selection of the training she will attend. The Agency must identify the training and enroll
Complainant in the course;

7. To the extent feasible, restore Complainant’s duties which were found to have been
removed as a result of the reprisal discrimination; and

8. Post at the VBA in Washington, D.C., copies of the notice discussed below.

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POSTING ORDER (G0617)

The Agency is ordered to post at its Central Office in Washington, D.C., facility 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 as directed in the paragraph entitled “Implementation of the Commission's Decision,”
within 10 calendar days of the expiration of the posting period. The report must be in digital
format, and must be submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. §
1614.403(g).

IMPLEMENTATION OF THE COMMISSION’S DECISION (K0617)
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 in the digital format required by the Commission, and submitted via the
Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). 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 (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.
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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

October 12, 2018
Date