[Redacted], Jazmine F., 1 Complainant,v.Lloyd J. Austin III, Secretary, Department of Defense, Agency.

Equal Employment Opportunity Commission

Mar 14, 2023

Appeal No. 2021001591 (E.E.O.C. Mar. 14, 2023)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Jazmine F.,1 Complainant, v. Lloyd J. Austin III, Secretary, Department of Defense, Agency. Request No. 2023000505 Appeal No. 2021001591 Hearing No. 570-2015-01003X Agency No. 2012-FMD-030 DECISION ON REQUEST FOR RECONSIDERATION Complainant requested that the Equal Employment Opportunity Commission (EEOC or Commission) reconsider its decision in Jazmine F. v. Dep’t of Defense, EEOC Appeal No. 2021001591 (Sept. 27, 2022). 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). The record indicates that on July 27, 2012, Complainant filed her complaint alleging that the Agency unlawfully retaliated against her for her prior EEO activity when on April 27, 2012, she learned that her third-line supervisor, the Financial Management Directorate (FMD) Director, interfered with a prospective employment opportunity by notifying her temporary detail supervisor, the Director of Accounting Policy, as well as human resources and the general counsel, about her prior EEO activity. 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. 2023000505 2 After an investigation, Complainant requested a hearing but subsequently withdrew her request. The Agency issued its final decision finding no discrimination. Complainant appealed, and the Commission, in EEOC Appeal No. 0120162132 (June 22, 2018), request for reconsideration denied, EEOC Request No. 0520180517 (Nov. 7, 2018), reversed the Agency’s final decision. The Commission found that the FMD Director’s mentioning Complainant’s prior EEO complaint to Complainant’s detail supervisor, while discussing Complainant’s reassignment, was retaliatory. The Commission ordered the Agency, in part, to determine if Complainant was entitled to compensatory damages, to provide EEO training to the FMD Director, and to award attorney’s fees if Complainant had been represented by an attorney. On November 24, 2020, the Agency issued its final decision on damages awarding $4,226.10 for medical expenses as well as out-of-pocket costs from depositions, parking, and mailings. The Agency denied Complainant’s request for attorney’s fees ($6,561.80 = $ 602.00 per hour times 10.9 hours) because Complainant was acting pro se until her request for attorney’s fees. The Agency did not award any nonpecuniary, compensatory damages because Complainant did not seek any specific amounts to which she was entitled. Complainant appealed the Agency’s decision. On appeal, Complainant sought compensatory damages between $50,000.00 and $100,000.00 and attorney’s fees at the rate of $637.00 per an hour. The Commission’s prior decision in EEOC Appeal No. 2021001591 affirmed the Agency’s final decision awarding $4,226.10 for medical expenses as well as out-of-pocket costs from depositions, parking, and mailings. The Commission also affirmed the Agency’s final decision denying Complainant’s requested attorney’s fees because she was pro se when she filed the instant complaint, throughout the investigation, and during the hearing process (until prior to the appeal brief). After a review of Complainant’s statements in support of entitlement for damages, the Commission found Complainant was entitled to $10,000.00 in nonpecuniary, compensatory damages. In the instant request, Complainant reiterates arguments she previously made concerning her request for attorney’s fees and nonpecuniary, compensatory damages (now asking $40,000.00). Upon review, we find that Complainant provides no evidence to warrant granting her request. As such, Complainant is not entitled to attorney’s fees for the instant request. 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) (Aug. 5, 2015), at 9-18; 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. 2023000505 3 The decision in EEOC Appeal No. 2021001591 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, the Agency shall take the following actions: 1. Within 90 days from the date this decision is issued, the Agency shall pay Complainant $10,000 in nonpecuniary, compensatory damages. 2. Within 90 days from the date this decision is issued, the Agency shall pay Complainant $3,202 in pecuniary damages for her medical costs and copayments. 3. Within 90 days from the date this decision is issued, the Agency shall pay Complainant $130.60 as reimbursement for her out-of-pocket costs from mailing correspondence. 4. Within 90 days from the date this decision is issued, the Agency shall pay Complainant $893.50 as reimbursement for the out-of-pocket costs associated with deposing the FMD Director and FMD Assistant Director. 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. 2023000505 4 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 C.F.R. § 1614.503(f) for enforcement by that agency. COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (Q0610) This decision affirms the Agency’s final decision/action in part, but it also requires the Agency to continue its administrative processing of a portion of your complaint. 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 on both that portion of your complaint which the Commission has affirmed and that portion of the complaint which has been remanded for continued administrative processing. 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 March 14, 2023 Date