0520170123
03-07-2017
Odilia M.,1 Complainant, v. Dr. David J. Shulkin, Secretary, Department of Veterans Affairs, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Odilia M.,1
Complainant,
v.
Dr. David J. Shulkin,
Secretary,
Department of Veterans Affairs,
Agency.
Request No. 0520170123
Appeal No. 0120150311
Hearing No. 470-2014-00080X
Agency No. 200H05392013100945
DECISION ON REQUEST FOR RECONSIDERATION
Complainant timely requested reconsideration of the decision in EEOC Appeal No. 0120150311 (November 3, 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 the underlying complaint, Complainant worked as an Administrative Assistant at the Agency's Fort Thomas Community Living Center (CLC) in Fort Thomas, Kentucky. On February 13, 2013, Complainant filed an EEO complaint, which she subsequently amended, alleging that the Agency discriminated against her on the bases of race (African-American), national origin (Hispanic), sex (female), and reprisal for prior protected EEO activity when:
1. In approximately September 2012, a coworker caused a door to hit Complainant, and NM1 asked Complainant to not file a police report concerning the incident;
2. On October 10 and 26, 2012, S1 questioned, intimidated, and made accusations against Complainant concerning a patient bed pickup and subjected Complainant to a fact-finding investigation;
3. On December 7, 2012, S1 issued Complainant a proposed 30-day suspension;
4. On January 2, 2013, S1 failed to take corrective action concerning a September 2012 incident with a coworker;
5. On January 10, 2013, HR1 denied Complainant supportive information concerning her proposed 30-day suspension;
6. On January 10, 2013, S1 disallowed Complainant to pre-post time as it related to her duties as timekeeper;
7. On January 10, 2013, S1 denied Complainant official time to attend training;
8. On April 5, 2013, S1 had the desktop computer previously utilized by Complainant removed from her office, causing her to be unable to retrieve files and documents;
9. On March 14, 2013, S1 failed to issue Complainant a current performance rating;
10. On March 14, 2013, S1 failed to issue Complainant an updated position description and performance standards, and he has required her to perform job duties that are not in her current position description;
11. On May 10, 2013, S2 notified Complainant that effective June 10, 2013, she would be reassigned to the Vine Street campus and placed under the supervision of S3;
12. Complainant was placed on authorized absence;2
13. Complainant was instructed to meet with the employee threat assessment team;
14. Complainant's badge/computer were taken away from her;
15. Complainant's manager attempted to change her working conditions;
16. Complainant's supervisor threatened her with discipline if she did not submit a doctor's note showing that she went to see a doctor; and
17. In order for Complainant to return to work as directed, she would have to meet weekly on the closed psychiatric ward.
Our prior appellate decision addressed the Equal Employment Opportunity Commission Administrative Judge's (AJ) decision following a hearing. The AJ's decision found in favor of the Agency, concluding Complainant failed to prove her discrimination claims. Our prior decision found per se retaliation with respect to claim 3, the issuance of a proposed suspension. The decision found no discrimination with respect to the remaining claims and Complainant's claim of harassment.
In her request for reconsideration, Complainant expresses her disagreement with the previous decision and presents some of the same arguments she raised previously. 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. 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. 0120150311 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 that it has not already done so, the Agency is hereby ORDERED to take the following actions:
1. Within one hundred and twenty (120) days of the date of this decision, the Agency shall conduct a supplemental investigation on the issue of Complainant's entitlement to compensatory damages with respect to this complaint. Complainant will cooperate in the Agency's efforts to compute the amount of compensatory damages, if any, and will provide all relevant information requested by the Agency. The Agency shall issue a final decision on the issue of compensatory damages with appeal rights to the Commission. A copy of the final decision must be submitted to the Compliance Officer as referenced below.
2. Within thirty (30) days of the date of this decision, the Agency shall expunge any Agency records related to the retaliatory proposed suspension.
3. The Agency will immediately take steps to ensure that all reprisal ceases and desists in the facility. The Agency will ensure that it takes steps to immediately address any reports of reprisal brought to its attention, and that employees know that they can bring EEO concerns to Agency leaders.
4. Within 120 days of the date of this decision, the Agency shall provide specialized, in person, 8 hour training to all Agency management officials at the Agency's Fort Thomas, Kentucky facility regarding employees' rights and managements' responsibilities with respect to EEO laws, with special emphasis on retaliation.
5. The Agency shall consider taking disciplinary action against the responsible management officials who issued Complainant a proposed suspension for her "confrontational and disrespectful" tone while complaining about discrimination. The Agency shall report its decision within thirty (30) calendar days. If the Agency decides to take disciplinary action, it shall identify the actions taken. If the Agency decides not to take disciplinary action, it shall set forth the reason(s) for its decision not to impose discipline. The Commission does not consider training to constitute disciplinary action.
6. The Agency shall post the attached Notice of Discrimination, 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 the corrective action has been implemented.
POSTING ORDER (G1016)
The Agency is ordered to post at its Fort Thomas Community Living Center (CLC) 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 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 7, 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.
2 The AJ granted Complainant's request to add claims 12 through 17 during the hearing process.
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