U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Tessa G.,1 Complainant, v. Xavier Becerra, Secretary, Department of Health and Human Services (Centers for Disease Control and Prevention), Agency. Request No. 2023000076 Appeal No. 2020004613 Agency No. HHS-CDC-0100-2015 DECISION ON REQUEST FOR RECONSIDERATION Complainant timely requested that the Equal Employment Opportunity Commission (EEOC or Commission) reconsider its decision in EEOC Appeal No. 2020004613 (August 29, 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). On February 10, 2015, Complainant filed a formal EEO complaint alleging that her termination, from her Legal Analyst position with the Agency’s Oak Ridge Institute for Science and Education (ORISE), was discriminatory. 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. 2023000076 2 While her case was pending a hearing with an EEOC Administrative Judge (AJ), the Agency did not provide her with a copy of the report of investigation until more than six months after the deadline set by the assigned AJ. Over the Agency’s objections, Complainant’s motion for the sanction of default judgment was granted. The AJ reasoned that default judgment was warranted because of the extreme length of the delay, the resulting harm to Complainant, and the Agency’s disregard for the EEO process. The AJ also found that Complainant established a prima facie case of disability discrimination when, soon after she told her supervisor she had epilepsy, the supervisor hired someone to replace her while she was on medical leave, then demoted her, before ultimately terminating her, even though he had not previously cited any deficiencies in her performance. The Agency was found liable for damages. In the June 8, 2020 Damages Decision, the AJ awarded Complainant: $42,500 in non-pecuniary compensatory damages, backpay for the remaining time on her contract, and attorney’s fees. The AJ did not address Complainant’s request for pecuniary compensatory damages, or discipline and training. On appeal, the parties did not dispute the issuance of the default judgment. The appellate decision was therefore limited to the AJ’s award of remedies. In EEOC Appeal No. 2020004613, the Commission agreed with the Agency that Complainant was not entitled to reinstatement, as her position was part of a fellowship program with a term contract. Because Complainant was not entitled to reinstatement, the Commission found that the AJ’s award of backpay, for the months remaining on her contract ($37,947 plus interest) was appropriate. Regarding non-pecuniary compensatory damages, the Commission found that an increased award of $75,000 was more appropriate. In so doing, the appellate decision noted that Complainant testified that her former professor was unwilling to assist her in her job search following her termination, citing her EEO litigation. Complainant also described panic attacks and physical pain that her physician attributed to severe stress and depression. With respect to pecuniary damages, the matter was remanded to the AJ. The Agency was also ordered to provide training, post a notice regarding the finding of discrimination, and consider discipline for the responsible officials. In her request for reconsideration, Complainant reiterates her contention that she should have been granted reinstatement to a permanent position. In so doing, Complainant argues the Commission should have required the Agency to show why she was not eligible for reinstatement via another mechanism if the ORISE program was no longer available. Additionally, Complainant delves into the analysis for determining whether an individual is an employee to argue that she is entitled to placement in a permanent position. According to Complainant, she likely would have remained employed with the Agency past the expiration of her third contract, citing a comparator in her fourth year as an ORISE fellow. Complainant asserts that the Agency has shown that a monetary award will not deter it from engaging in discrimination and urges the Commission order her reinstatement into a permanent position. 2023000076 3 Regarding the award of non-pecuniary compensatory damages, Complainant argues that the Commission downplayed her new severe and chronic medical conditions that followed her termination. In order to merit the reconsideration of a prior Commission decision, the requesting party must submit written argument or evidence which tends to establish that at least one of the criteria of 29 C.F.R. §1614.407(c) is met. The Commission's scope of review on a request for reconsideration is narrow. Lopez v. Department of the Air Force, EEOC Request No. 05890749 (September 28, 1989). A request for reconsideration is not merely a form of a second appeal. Regensberg v. USPS, EEOC Request No. 05900850 (September 7, 1990). Instead, it is an opportunity to submit newly discovered evidence, not previously available; to establish substantive error in a previous decision; or to explain why the previous decision will have effects beyond the case at hand. Lyke v. USPS, EEOC Request No. 05900769 (September 27, 1990). Complainant has not done so here. Rather, she has simply reasserted her belief that she should be granted a permanent position with the Agency. 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. 2020004613 remains the Commission's decision and the Agency shall comply with its Order as repeated below. There is no further right of administrative appeal on the decision of the Commission on this request. ORDER The Agency is ordered to take the following remedial actions: 1. To the extent the Agency has not already done so, within 60 days of the date this decision is issued, the Agency is ordered to pay Complainant back pay in the amount of $37,947, plus interest. If there is a dispute regarding the exact amount of back pay and/or benefits, the Agency shall issue payment to Complainant for the undisputed amount within 60 calendar days of the date the Agency determines the amount it believes to be due. Complainant may petition for enforcement or clarification of the amount in dispute regardless of whether she accepts the Agency’s payment. 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.” 2. The issue of Complainant’s increased tax burden from the Agency’s lump sum payment of back wages is remanded to the Agency. On remand, the Agency shall conduct a supplemental investigation, including providing Complainant an opportunity to submit evidence of her increased tax burden. The Agency shall complete the investigation and issue a final agency decision appealable to the EEOC determining the appropriate amount of damages. 2023000076 4 3. To the extent the Agency has not already done so, within 60 days of the date this decision is issued, the Agency is ordered to pay Complainant the amount of $41,834 and $1,193.50 in attorneys’ fees and costs. 4. To the extent it has not already done so, within 60 days of the date this decision is issued, the Agency shall pay Complainant $75,000 in nonpecuniary, compensatory damages. 5. To the extent it has not already done so, within 120 days of the date this decision is issued, the Agency shall consider taking disciplinary action(s) against the management official(s) identified as being responsible for the unlawful discrimination perpetrated in this case. The Agency shall report its decision to the Commission. If the Agency decides to take disciplinary action, it shall identify the action taken. If the Agency decides not to take disciplinary action, it shall set forth the reason(s) for its decision not to impose discipline. 6. To the extent it has not already done so, within 90 days of the date this decision is issued, the Agency shall provide four (4) hours of live training with a focus on the Rehabilitation Act and reprisal to Director and other managers and supervisors of the Office of State Tribal Local and Territorial Support in Atlanta, Georgia. 7. To the extent it has not already done so, within sixty (60) calendar days after the date this decision becomes final, the Agency shall provide training to the responsible EEO management officials who processed this complaint on their responsibilities concerning case processing, sending the investigative file to Complainant in a timely manner, and their duty to comply with orders from the Commission. 8. To the extent it has not already done so, the Agency shall, within 30 calendar days of the date this decision is issued, forward the matter to the EEOC’s Atlanta District Office’s Hearings Unit, so that the issues of Complainant’s entitlement to pecuniary damages can be addressed by the AJ. 9. To the extent it has not already done so, the Agency shall immediately post a notice in accordance with the paragraph below. 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. 2023000076 5 POSTING ORDER (G0617) The Agency is ordered to post at its facility at the Office of State Tribal Local and Territorial Support in Atlanta, Georgia, 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 (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 C.F.R. § 1614.503(f) for enforcement by that agency. 2023000076 6 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 16, 2023 Date
