Myrtie P.,1 Complainant,v.Kevin K. McAleenan, Acting Secretary, Department of Homeland Security (Headquarters), Agency.

Equal Employment Opportunity Commission

Sep 20, 2019

2019004207 (E.E.O.C. Sep. 20, 2019)

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

Myrtie P.,1
Complainant,

v.

Kevin K. McAleenan,
Acting Secretary,
Department of Homeland Security
(Headquarters),
Agency.

Request No. 2019004207

Appeal No. 0120180246

Agency No. HS-HQ-22346-2012

DECISION ON REQUEST FOR RECONSIDERATION

Complainant timely requested that the Equal Employment Opportunity Commission (EEOC or
Commission) reconsider its decision in Myrtie P. v. Dep’t of Homeland Sec., EEOC Appeal No.
0120180246 (Mar. 19, 2019). 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).

Complainant, a Management and Program Analyst at the Agency's Information Technology
Services Office in Washington, D.C., filed an EEO complaint alleging that the Agency
discriminated against her on the bases of sex (female), disability (physical), and in reprisal for
prior protected EEO activity as evidenced by 12 incidents.

Following an investigation, Complainant requested a final agency decision. In the decision, the
Agency concluded that Complainant had not been subjected to discrimination or reprisal as
alleged. Complainant appealed and, in Myrtie P. v. Dep’t of Homeland Sec., EEOC Appeal No.

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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0120141732 (Dec. 30, 2016), the Commission found that the Agency discriminated against
Complainant when it revoked Complainant’s telework accommodation, delayed restoring
Complainant’s telework for four months, failed to respond to Complainant’s request for assistive
technology, software, and training, and penalized Complainant for its own failure to reasonably
accommodate her. To remedy the discrimination, the Commission ordered the Agency to, inter
alia, immediately provide Complainant with reasonable accommodation; expunge all discipline
and counseling issued to Complainant since November 2011; restore all leave taken as a result of
the Agency’s failure to accommodate; conduct a supplemental investigation regarding
Complainant's entitlement to compensatory damages and attorneys’ fees and costs.

The Agency subsequently conducted a supplemental investigation regarding compensatory
damages and attorneys’ fees and costs. In its final decision, the Agency awarded Complainant
$26,467.66 pecuniary damages; $30,000 in nonpecuniary damages; $73,315.39 in attorneys’ fees;
and $2,505.02 in costs.

In Myrtie P. v. Dep’t of Homeland Sec., EEOC Appeal No. 0120180246 (Mar. 19, 2019),
Complainant appealed the Agency’s award of attorneys’ fees and costs and compensatory
damages. The Commission modified the Agency’s decision on damages by increasing the amount
of non-pecuniary damages to $65,000, and the amount of attorney’s fees and costs to $139,460.
In addition, the Commission affirmed the Agency’s award of $26,467.66 in pecuniary damages.

On April 23, 2019, Complainant filed a motion in which she sought an additional 90 days in which
to file her request for reconsideration, but provided no substantive arguments regarding the
Commission’s decision. On June 17, 2019, Complainant submitted a brief with substantive
arguments. In its response, the Agency argues that the Commission should dismiss Complainant’s
request for reconsideration as untimely filed. The Agency notes that Complainant’s request for
reconsideration was due on April 23, 2019, and that her substantive brief is dated 52 days after the
deadline.

We decline the Agency’s suggestion that Complainant’s request for reconsideration is untimely.
The Commission has deemed similar requests for extension to be a complainant’s request for
reconsideration for timeliness purposes. Vicki T. v. U.S. Postal Serv., EEOC Request No.
0520160158 (May 3, 2016). Although Complainant’s substantive brief was filed 52 days after the
deadline to submit arguments in support of a request for reconsideration, we exercise our discretion
and consider her brief. See id. In doing so, we note that in our previous decision in EEOC Appeal
No. 0120180246, the Commission inadvertently omitted its notification to Complainant of her
right to request reconsideration and the accompanying deadlines.

In her request for reconsideration brief, Complainant argues that the Commission’s decision
rejected her arguments on restoration of leave and pecuniary damages and ignored her request to
ensure that the Agency expunged all discipline from her record. As to her disciplinary record,
Complainant argues that the Agency’s decision omits any reference to this element of the
Commission’s order and that the Commission also did not address this point. Complainant further
argues that the Commission’s order did not contain a time restriction on her restoration of leave,
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and that the prior decision overlooked the expansive nature of its order. Complainant also contends
that the Agency awarded her far less in restoration of leave because she has returned to federal
service. Specifically, “[t]he Agency reduced the 797 hours to 442 hours because, at the time,
Complainant was not a federal employee and thus was not entitled to a payout of sick leave or
compensatory time. . . . However, Complainant has returned to federal service.” Moreover,
Complainant argues that she is entitled to pecuniary damages because the effects of the Agency’s
discriminatory actions extend far beyond 2012.

In response, the Agency argues that Complainant is asking the Commission to consider equitable
relief, which is beyond the scope of a decision on an award of damages. Nonetheless, the Agency
contends it has granted all the equitable relief Complainant is due. The Agency also opposes
Complainant’s contention that it denied her complete restoration of leave. In doing so, the Agency
notes that Complainant took leave for other reasons, including to attend bankruptcy and court
proceedings, and to recover from an unrelated shoulder surgery. Additionally, Complainant is not
entitled to restoration of sick leave because she did not raise it on appeal to the Commission.
Further, the Agency rejects Complainant’s argument that she is entitled to restoration of sick leave
because she returned to federal service. Specifically, an employee who leaves federal service is
simply not entitled to payment for accrued sick leave.

Complainant has made no argument tending to establish the Commission’s prior decision
contained a clearly erroneous interpretation of fact or law or will have a substantive impact on the
Agency’s policies or practices. Complainant has not demonstrated that the Commission
incorrectly determined that equitable relief, including restoration of leave, was beyond the scope
of a decision on compensatory damages. Complainant’s arguments regarding pecuniary damages
are also unavailing.

The Commission emphasizes that a request for reconsideration is not a second appeal. Equal
Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), Chap.
9 § VI.A (Aug. 5, 2015); see, e.g., Lopez v. Dep't of Agric., EEOC Request No. 0520070736 (Aug.
20, 2007). A request for reconsideration is not the time for Complainant to raise new evidence or
new arguments. 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. Complainant has not presented any persuasive evidence to support reconsideration
of the Commission’s decision.

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. 0120180246 remains the Commission's
decision. There is no further right of administrative appeal on the decision of the Commission on
this request. The Agency is directed to comply with the Order set forth below.

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ORDER (C0618)

Within sixty (60) calendar days of the date this decision is issued, to the extent the Agency has not
done so already, the Agency is ordered to pay Complainant $65,000 in non-pecuniary
compensatory damages and $139,460.00 in attorney's fees and costs.

Within thirty (30) calendar days of the date this decision is issued, to the extent the Agency has
not done so already, the Agency is ordered to pay Complainant $26,467.66 as reimbursement for
leave used related to the discrimination finding.

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). Further, the
report must include supporting documentation of the Agency's calculation of back pay and other
benefits due Complainant, including evidence that the corrective action has been implemented.

IMPLEMENTATION OF THE COMMISSION’S DECISION (K0719)
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
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.
Failure by an agency to either file a compliance report or implement any of the orders set forth in
this decision, without good cause shown, may result in the referral of this matter to the Office of
Special Counsel pursuant to 29 CFR § 1614.503(f) for enforcement by that agency.

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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

September 20, 2019
Date