0520160240
07-19-2016
Porter H.,1 Complainant, v. Jeh Johnson, Secretary, Department of Homeland Security (Transportation Security Administration), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Porter H.,1
Complainant,
v.
Jeh Johnson,
Secretary,
Department of Homeland Security
(Transportation Security Administration),
Agency.
Request No. 0520160240
Appeal No. 0720140018
Hearing No. 550-2011-00038X
Agency No. HSTSA097432009
DECISION ON REQUEST FOR RECONSIDERATION
The Agency timely requested reconsideration of the decision in EEOC Appeal No. 0720140018 (March 11, 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 giving rise to this complaint, Complainant worked as a Lead Transportation Security Officer (LTSO) at the McCarran International Airport in Las Vegas, Nevada. Complainant filed an EEO complaint alleging that the Agency discriminated against him on the basis of disability when it terminated his employment on July 23, 2009.
Complainant requested a hearing and a hearing was held. Thereafter, the Equal Employment Opportunity Commission Administrative Judge (AJ) found that the Agency subjected Complainant to discrimination when it failed to provide him with reasonable accommodation to his disability, which resulted in his termination from the Agency.
The Agency appealed. Our previous decision dismissed the appeal because the Agency had not complied with the requirements of 29 C.F.R. � 1614.505(a)(1) by failing to timely offer interim relief in the form of an offer of reinstatement.
In its request for reconsideration, the Agency expresses its disagreement with the previous decision, and makes many arguments it has previously raised. However, 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 No. 0720140018 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 it has not already done so, the Agency shall undertake the following actions:
1. Within sixty (60) calendar days after the date this decision becomes final, the Agency shall make Complainant a formal, written unconditional2 offer of placement into at least one of the following assignments/positions: (1) Checkpoint Ticket and Document Checker, along with Exit Lane Monitor if necessary, (2) Checked Baggage Office Administrative Assistant, or (3) a substantially equivalent position within his medical restrictions, no later than thirty (30) calendar days from the date this decision becomes final.
2. The Agency shall determine and pay Complainant the appropriate amount of back pay, with interest, and other benefits due to him, pursuant to 29 C.F.R. � 1614.501. Complainant shall cooperate in the Agency's efforts to compute the amount of back pay and benefits due, and shall provide all relevant information requested by the Agency. Complainant's earnings from other employment during the relevant time period will be subtracted from the gross back pay, as will his workers' compensation lost wage earnings payment. Goldberg v. Dep't of State, EEOC Appeal No. 0420100006 (Sept. 23, 2011); Siu v. Dep't of Justice. EEOC Appeal No. 0720070040 (Apr. 28, 2009). If information about Complainant's earnings from other employment and worker's compensation wage replacement earnings are not directly available to the Agency, Complainant shall cooperate with the Agency to provide the information within thirty (30) days after this decision becomes final.
If there is a dispute regarding the exact amount of back pay and/or benefits, the Agency shall issue a check to Complainant for the undisputed amount within sixty (60) calendar days of the date this decision becomes final. Complainant may petition for enforcement or clarification of the amount in dispute. The petition for clarification or enforcement must be filed with the Compliance Officer, at the address referenced in the statement entitled "Implementation of the Commission's Decision." Determine the appropriate amount of back pay, with interest, and other benefits due Complainants, pursuant to 29 C.F.R. � 1614.501.
3. The Agency shall pay Complainant for any increased tax burden incurred because of the back pay award within sixty (60) calendar days of receipt of Complainant's documentation proving the increased burden. To obtain payment for the increased income tax burden, Complainant shall provide to the Agency detailed documentation establishing the increased income tax burden no later than sixty (60) calendar days after receipt of the Agency's documentation on back pay and interest.
4. The Agency shall pay Complainant $2,000 in non-pecuniary compensatory damages within thirty (30) calendar days after this decision becomes final.
5. The Agency shall pay Complainant $76,750 in attorney's fees.
6. The Agency shall henceforth provide all employees with reasonable accommodations for their disabilities, including through light and limited duty assignments, in accordance with the Rehabilitation Act, this decision, and other binding applicable Commission precedent.
7. Within one hundred twenty (120) calendar days after the date this decision becomes final, the Agency shall provide the Agency's Director of Workers' Compensation Programs involved in this case with at least two hours of in-person training. The training shall focus on the interplay of worker's compensation and the Rehabilitation Act with regard to providing reasonable accommodations, the overall law regarding reasonable accommodation, and the provision of light/limited duty as a reasonable accommodation. The Agency shall retain and provide to the Commission documents regarding the following: the name and resume of the trainer, a copy of the written training materials, and signed verification of the attendance of the Director of Workers' Compensation Programs.
8. Within one hundred twenty (120) calendar days after the date this decision becomes final, the Agency shall issue a memorandum to all its managers and supervisors at the McCarran International Airport in Nevada. The memorandum shall inform managers/supervisors that they could be disciplined for terminating employees with a disability because of their medical restrictions when that employee is qualified to be reasonably accommodated through reassignment.
9. The Agency shall post notices in accordance with the paragraph below.
POSTING ORDER (G0914)
The Agency is ordered to post at its McCarran International Airport facilities (Agency Administrative Offices, including baggage screening offices, and all other Agency offices at McCarran International Airport) 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.
2 We note that the Agency's late offer of reinstatement dated February 28, 2014, conditionally offered Complainant a position as a Lead Transportation Security Officer. Complainant argued in his March 7, 2014 brief, that this offer did not comply with the remedies and relief provisions at 29 C.F.R. � 1614.501. However, under the interim relief provision at 29 C.F.R. � 1614.505(a)(1), the Agency was only required to offer "temporary or conditional restoration" pending the outcome of the Agency's appeal. Now that the Agency's appeal has been adjudicated, the regulation at 29 C.F.R. � 1614.501(a)(3) controls and the offer shall be unconditional.
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