[Redacted], Wilma M., 1 Complainant,v.Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

Feb 16, 2023

Appeal No. 2021004795 (E.E.O.C. Feb. 16, 2023)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Wilma M.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency. Appeal No. 2021004795 Hearing No. 430-2018-00220X Agency No. 2004-0730-2017101756 DECISION On August 26, 2021, Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s July 30, 2021, final order concerning her equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq. For the following reasons, the Commission MODIFIES the Agency’s final order. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Revenue Utilization Review Nurse, Grade III at the Agency’s Mid-Atlantic Consolidated Patient Account Center (MACPAC), Office of Community Care facility in Birmingham, Alabama. On March 16, 2017, Complainant filed an EEO complaint, which she subsequently amended, alleging that the Agency discriminated against her on the bases of race (African-American) and reprisal for prior protected EEO activity when:2 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 Complainant withdrew age as a basis for her complaint. 2 2021004795 1. On January 17, 2017, Complainant received a 10-day suspension; 2. On or about August 4, 2017, the Agency, by and through the MACPAC Director, denied Complainant the applicable data on which the removal decision was based and thus prevented her from adequately responding to the proposed removal; and 3. On or about August 24, 2017, the Agency removed Complainant from federal service.3 At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant timely requested a hearing. During the hearing process, the AJ granted the Agency’s unopposed request to adjudicate Complainant’s EEO complaint at the same hearing as the EEO complaint of a coworker (Coworker) because several claims stemmed from the same underlying events and both complaints required testimony from the same witnesses. Complainant and Coworker were represented by the same attorney. The AJ held the hearing on the instant EEO complaint and the EEO complaint of Coworker on November 13-14 and December 9, 2019.4 On March 21, 2021, the AJ scheduled a status conference to discuss submission of attorney’s fee petitions for Complainant’s case and Coworker’s case and any Agency briefs opposing the request for attorney’s fees. On April 27, 2021, Complainant’s attorney submitted a request for $67,500 in attorney’s fees and costs for both cases, which the Agency did not oppose. On July 27, 2021, the AJ issued a Hearing Decision and Order Entering Judgment on liability and damages for Complainant’s EEO complaint. The AJ concluded that Complainant was subjected to a hostile work environment based on reprisal, culminating in her removal. The AJ determined that Complainant did not establish that she was subjected to discrimination or harassment based on race. The AJ found Complainant was entitled to $72,750 in nonpecuniary compensatory damages based on Complainant’s testimony about damage to her reputation, stress, anxiety, depression, distress about her future, and the effects on her ability to enjoy time with her family, hobbies, and social involvements. The AJ stated that testimony from Complainant’s sister and father confirmed the stress and anxiety Complainant suffered. AJ Decision (AJD-1) at 13. 3 As a Title 38 Nurse, Complainant could not appeal her removal to the Merit Systems Protection Board (MSPB). Report of Investigation (ROI) at 323; see Yvette H. v. Dep’t of Vet. Affs., EEOC Petition No. 0420180017 (June 28, 2018) (certain employees appointed under Title 38 of Unites States Code are specifically excluded by 5 C.F.R. § 752.401(d) from the jurisdiction of the MSPB). 4 Coworker’s EEO complaint is the subject of EEOC Appeal No. 2021004352. 3 2021004795 The AJ ordered the Agency to calculate the appropriate amount of back pay and other benefits due Complainant. The AJ determined that Complainant was entitled to back pay from the date of her removal, through the date Complainant was able to secure new employment.5 The AJ stated, “Based on Complainant’s testimony the Agency [is] liable for back pay from August 29, 2017 through the date which Complainant was able to secure new employment, or December 15, 2018, if Complainant did not secure new employment before this date.” AJD-1 at 14. The AJ also specified that the Agency was liable for any documented increased tax liability incurred as a result of receiving back pay as a lump sum. The AJ ordered the Agency to pay $33,750 in attorney’s fees and costs for Complainant’s case. The AJ also ordered the Agency to provide four hours of EEO training to the responsible management officials, to post a notice, and to submit a report of compliance. On July 29, 2021, the Agency filed a Motion for Reconsideration of Hearing Decision. The Agency’s motion stated that the AJ’s decision “cites to inaccurate recollections of testimony provided and makes factual conclusions unsupported by the record. Further, the damages awarded are overly excessive and are not supported by the facts of this case.” Agency’s July 29, 2021, Motion for Reconsideration at 1. The Agency requested that the AJ reopen the record and issue a new decision based on the testimony and evidence presented. The AJ did not address the Agency’s Motion for Reconsideration of Hearing Decision.6 On July 30, 2021, the Agency issued a final order adopting the AJ’s finding that Complainant proved that the Agency subjected her to discrimination and harassment based on reprisal as alleged and fully implementing the ordered relief. The final order ordered the Agency: to rescind and expunge from all official and unofficial records any adverse actions and documents related to Complainant’s August 2017 removal; to calculate and pay Complainant back pay and benefits and interest from August 29, 2017, through the date Complainant was able to secure new employment, or December 15, 2018, if Complainant did not secure new employment before this date; to pay Complainant for documented adverse tax consequences; to pay Complainant the monetary equivalent of any leave Complainant used as a result of the discrimination; to provide Complainant with a written commitment that it will cease from engaging in the unlawful employment practice, that it will not engage in similar unlawful employment practices, and, if Complainant returns to employment with the Agency, it will provide her a workplace free from hostility, offensive conduct, and abuse, and no reprisal will be taken against her for filing and pursing this or any other 5 The effective date of Complainant’s removal was August 24, 2017. Report of Investigation (ROI) at 175-76. 6 We note that the Commission’s regulations do not provide for a motion for reconsideration once an AJ has issued a hearing decision and order entering judgment. If an agency has issues with the way an AJ conducted a hearing or would like to challenge an AJ’s decision finding discrimination on appeal, the agency should issue a final order rejecting the AJ’s decision and simultaneously file an appeal with the Office of Federal Operations in accordance with 29 C.F.R. § 1614.110(a) and 29 C.F.R. § 1614.403. Here, the Agency’s July 30, 2021, final order adopted the AJ’s decision finding discrimination and fully implemented the ordered relief. 4 2021004795 complaint under federal EEO law; to pay $72,750 in nonpecuniary compensatory damages; to pay $33,750 in attorney’s fees and costs; to post a notice; to provide four hours of EEO training to the MACPAC Director; and to consider disciplinary action against the MACPAC Director. On August 26, 2021, Complainant filed the instant appeal. On September 1, 2021, the AJ issued a Revised Hearing Decision. The AJ stated that the revised decision “addresses scrivener’s errors” but that the revisions “do not change the underlying factual conclusions and/or the ultimate decision issued.” September 1, 2021, AJ Decision (AJD-2) at 1. The decision stated that a reference to damages witnesses was one of the scrivener’s errors. AJD- 2 at 1. The AJ determined that Complainant was entitled to $72,750 in nonpecuniary compensatory damages based on her testimony about experiencing emotional and physical symptoms, including stress, anxiety, and depression. AJD-2 at 12. CONTENTIONS ON APPEAL Complainant’s appeal is limited to two aspects of the relief ordered by the AJ: (1) limiting back pay through December 15, 2018, instead of full backpay through the present; and (2) failing to reinstate Complainant to her previously held position as a Revenue Utilization Review Nurse, Grade III. Complainant asserts that, throughout the EEO process, she requested full backpay and reinstatement, and the AJ erred in not ordering reinstatement and in limiting her backpay. According to Complainant, despite applying for nurse positions, she was unable to find a new job after her removal. Complainant notes that the AJ may have adopted the December 15, 2018, date from her coworker’s case, because her coworker did find new, albeit lower-paying, employment on December 15, 2018. Complainant argues that neither the AJ nor the Agency in its final order found that she failed to mitigate her damages. Complainant requests backpay through the present. According to Complainant, she applied for retirement between the conclusion of the hearing and the date the AJ issued the decision. Complainant contends that she was compelled to apply for retirement at that time because she had depleted her funds while out of work, but she states she would not have retired at that time had she remained employed with the Agency. Complainant observes that the AJ did not address reinstatement at all in the decision. Complainant asserts that, if reinstated, she has every intention of continuing to work for the Agency until she reaches the maximum Social Security retirement age. Complainant states that how her retirement affects backpay is not before the Commission and should be remanded to the Agency. Complainant contends that the Agency’s final order does not fully restore Complainant to the position she would be in absent the discrimination by limiting her backpay and not ordering reinstatement. Complainant requests that the Commission reverse the Agency’s final order only with respect to backpay by awarding backpay through the present. Complainant also asks the Commission to issue an order reinstating her to her Revenue Utilization Review Nurse position. 5 2021004795 In opposition to Complainant’s appeal, the Agency argues that Complainant did not prove her entitlement to the damages awarded and that, based on the record, Complainant should not have received any damages. The Agency contends that the damages already awarded to Complainant are a windfall because the underlying decision finding discrimination is flawed and that any additional damages would constitute an injustice that is not supported by the record.7 STANDARD OF REVIEW Pursuant to 29 C.F.R. § 1614.405(a), all post-hearing factual findings by an AJ will be upheld if supported by substantial evidence in the record. Substantial evidence is defined as “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Universal Camera Corp. v. Nat’l Labor Relations Bd., 340 U.S. 474, 477 (1951) (citation omitted). A finding regarding whether or not discriminatory intent existed is a factual finding. See Pullman-Standard Co. v. Swint, 456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a de novo standard of review, whether or not a hearing was held. An AJ’s credibility determination based on the demeanor of a witness or on the tone of voice of a witness will be accepted unless documents or other objective evidence so contradicts the testimony, or the testimony so lacks in credibility that a reasonable fact finder would not credit it. See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD- 110), Chap. 9, at § VI.B. (Aug. 5, 2015). ANALYSIS AND FINDINGS When discrimination is found, the agency must provide the complainant with a remedy that constitutes full, make-whole relief to restore her as nearly as possible to the position she would have occupied absent the discrimination. See, e.g., Franks v. Bowman Transp. Co., 424 U.S. 747, 764 (1976); Albemarle Paper Co. v. Moody, 422 U.S. 405, 418-19 (1975); Adesanya v. U.S. Postal Serv., EEOC Appeal No. 01933395 (July 21, 1994). On appeal, Complainant contends that she is entitled to reinstatement and that her entitlement to back pay should continue beyond December 15, 2018. EEOC Regulation 29 C.F.R. § 1614.501(a) requires that when there has been a finding of discrimination against an employee, the Agency shall provide full relief. This includes an unconditional offer of placement in the position the person would have occupied but for the discrimination, or a substantially equivalent position. 29 C.F.R. § 1614.501(a)(3). 7 To the extent that the Agency characterizes backpay as compensatory damages, we note that monetary relief, such as backpay and interest on backpay, is equitable relief and consists of monetary damages for loss of earnings, including all fringe benefits. Section 706(g) of Title VII, 42 U.S.C. § 2000e-(5)(g); 42 U.S.C. § 1981A(b). Such relief is not compensatory damages. EEOC Enforcement Guidance: Compensatory and Punitive Damages Available under § 102 of the Civil Rights Act of 1991, No. 915-002 (July 14, 1992) at 2. 6 2021004795 In general, where a complainant establishes a discriminatory removal, make-whole relief includes ordering the agency to offer to place complainant in the position she would have held, absent discrimination, or a substantially equivalent one. See Clay W. v. Dep’t of the Army, EEOC Appeal No. 0120161031 (June 21, 2018). Here, the AJ did not order the Agency to offer to reinstate Complainant to her Revenue Utilization Review Nurse, Grade III, position and did not make a finding that reinstatement was not appropriate or otherwise explain why reinstatement was not ordered. Accordingly, we will order the Agency to offer to reinstate Complainant to her Revenue Utilization Review Nurse position or a substantially equivalent one and provide her with further appropriate relief. Complainant retired between the conclusion of the hearing in 2019 and the date the AJ issued the decision on July 27, 2021. The purpose of a backpay award is to restore to a complainant the income she would have otherwise earned but for the discrimination. Albemarle Paper Co., supra, 442 U.S. at 418- 19; Davis v. U.S. Postal Serv., EEOC Petition No. 04900010 (Nov. 29, 1990). Gross backpay should include all forms of compensation and must reflect fluctuations in working time, overtime rates, penalty overtime, Sunday premium and night work, changing rate of pay, transfers, promotions, and privileges of employment to which Complainant would have been entitled but for the discrimination. Ulloa v. U.S. Postal Serv., EEOC Petition No. 04A30025 (Aug. 3, 2004) (citing Allen v. Dep’t of the Air Force, EEOC Petition No. 04940006 (May 31, 1996)). A complainant generally has a duty to mitigate damages. An agency has the burden to establish, by a preponderance of the evidence, that a complainant has failed to mitigate her damages. See 29 C.F.R. §1614.501(d); see McNeil v. U.S. Postal Serv., EEOC Petition No. 04990007 (Dec. 9, 1999). The Commission has generally held that an agency must satisfy a two-prong test to meet its burden of proof. This test requires the agency to show that: (1) complainant failed to use reasonable care and diligence in seeking a suitable position; and (2) there were suitable positions available which complainant could have discovered and for which she was qualified. See Beaton v. Dep’t of Justice, EEOC Petition No. 04A30044 (Jan. 13, 2004). Where a complainant adequately mitigates their damages, the backpay period generally ends on the effective date of her reinstatement or the date on which complainant declines the agency’s offer of reinstatement. See Clay W., supra. The AJ determined that Complainant was entitled to backpay from August 29, 2017, the date of her removal, through the date which Complainant was able to secure new employment, or December 15, 2018, if Complainant did not secure new employment before this date. The record reflects that the effective date of Complainant’s removal was August 24, 2017, so this should be the start of Complainant’s back pay period. ROI at 175-76. According to the record, the effective date of Coworker’s removal was August 29, 2017, and Coworker secured new employment on December 15, 2018. However, Complainant did not find new employment and retired between the conclusion of the hearing in 2019 and the date the AJ issued the decision on July 27, 2021. Complainant provided evidence at the hearing that she applied for numerous jobs after her removal but was unable to secure new employment. 7 2021004795 Moreover, Complainant stated that she was forced to apply for retirement when she did because she had depleted her savings. But for her discriminatory removal, Complainant had no intention of retiring at that time and would have continued working for the Agency. The AJ’s decision did not address Complainant’s retirement except to state that Complainant’s backpay award should not be offset by the disability retirement compensation Complainant may have received during the time at issue.8 AJD-1 at 14; AJD-2 at 14. The AJ did not make a finding that the Agency established by preponderant evidence that Complainant failed to mitigate damages or otherwise explain the decision to terminate Complainant’s entitlement to backpay on the date she was able to secure new employment or on December 15, 2018, if she was unable to secure new employment before that date. Upon review, we find that if Complainant declines the offer of reinstatement, the Agency must provide Complainant with all of the backpay and benefits she would have received from August 24, 2017, the effective date of her removal, until the date she declines the offer of reinstatement. The Agency shall treat the benefits Complainant received as a result of her retirement as any other mitigating measure in the calculation of the backpay award. If Complainant accepts the offer of reinstatement, the Agency must provide Complainant with backpay from August 24, 2017, until the date she is reinstated. This calculation of backpay shall again deduct the benefits Complainant received as a result of her retirement as any other mitigating measure. The Agency must deduct Complainant’s retirement contributions and Social Security taxes from her backpay, and the Agency must notify the Office of Personnel Management and the Social Security Administration that Complainant would be deemed to be employed by the Agency from the date of her removal through the date she declined reinstatement or the date she is reinstated after accepting the offer for the purposes of calculating her service credit and retirement benefits. See Petitioner v. Soc. Sec. Admin., EEOC Petition No. 0420140005 (July 3, 2014) (finding petitioner who retired after the unlawful discrimination and declined agency’s offer of reinstatement entitled to pay and benefits he would have received until date he declined reinstatement, including accrued sick leave and contributions to retirement and Social Security, and ordering agency to notify the Office of Personnel Management and the Social Security Administration to recalculate petitioner’s service credit and retirement benefits). We therefore remand the matter to the Agency. Because neither party challenges any of the other remedies ordered in the final order,9 we shall restate those unchallenged remedies in the Order, with the exception of the language concerning restoration of leave. The Agency’s final order ordered that Complainant be paid the monetary equivalent of any leave taken as a result of the Agency’s discriminatory conduct. 8 The record does not reflect that Complainant applied for disability retirement. 9 Although the Agency’s appellate brief expresses disagreement with the AJ’s decision finding discrimination based on reprisal and the compensatory damages award, the Agency cannot challenge its own final order fully implementing the AJ’s decision on appeal. See Eliz T. v. Dep’t of Vet. Affs., EEOC Appeal No. 2021003081 (May 25, 2021) (dismissing agency appeal requesting reconsideration of AJ’s decision after agency issued final order fully implementing AJ’s decision finding discrimination and ordering remedies including back pay). 8 2021004795 We will modify this order since we are ordering the Agency to offer reinstatement. We note that Complainant may be entitled to additional attorney’s fees for work performed after the initial attorney’s fees determination, including work on this appeal. Complainant shall submit any petition for additional attorney’s fees and costs to the Agency. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we MODIFY the Agency’s final order and REMAND the matter to the Agency to take remedial action in accordance with this decision and the ORDER below. ORDER 1) Within 60 calendar days of the date this decision is issued, the Agency shall offer to reinstate Complainant to the Revenue Utilization Review Nurse, Grade III, position or a substantially equivalent position in her current geographic location, retroactive to August 24, 2017, the date of her removal. Should Complainant decline reinstatement, the date she declines the position shall be the end date for any backpay due Complainant. 2) Within 60 calendar days of the date this decision is issued, the Agency shall restore any leave used by Complainant as a consequence of the Agency’s discriminatory conduct. Complainant must demonstrate a causal nexus between the discrimination and the need to take leave. Complainant shall provide all relevant information requested by the Agency within 30 calendar days of receiving any Agency request for information. 3) Complainant is entitled to backpay, with interest, and other benefits, beginning from the date of her removal, August 24, 2017, up to the date she is reinstated or rejects the offer of reinstatement to the Grade III Revenue Utilization Review Nurse position, as well as compensation for demonstrated adverse tax consequences: a. Within 60 calendar days of the date this decision is issued, the Agency shall determine the appropriate amount of backpay, with interest, and other benefits due Complainant pursuant to 29 C.F.R. § 1614.501. The Agency's backpay calculation shall include all forms of compensation and reflect fluctuations in working time, overtime rates, Sunday premium and night work, changing rate of pay, transfers, promotions, and privileges of employment. Complainant shall cooperate in the Agency’s efforts to compute the amount of backpay and benefits due and shall provide all relevant information requested by the Agency within 30 calendar days of receiving any Agency request for information. This includes any mitigating measures such as benefits Complainant received through her retirement. b. Within 60 calendar days of the date the Agency determines the amount of backpay due Complainant, the Agency shall pay Complainant that amount. The Agency shall provide Complainant with a clear and concise plain language statement explaining the formulas and methods it used to calculate backpay. If there is a 9 2021004795 dispute regarding the exact amount of backpay and/or benefits, the Agency shall issue a check to Complainant for the undisputed amount. Complainant may file a petition for enforcement or clarification regarding the amount in dispute. The petition for enforcement or clarification must be filed with the Compliance Officer at the address referenced in the statement entitled “Implementation of the Commission’s Decision.” c. The Agency shall also pay compensation for the adverse tax consequences of receiving backpay as a lump sum. Complainant has the burden of establishing the amount of increased tax liability, if any. Once the Agency has calculated the proper amount of backpay, Complainant shall be given the opportunity to present the Agency with evidence regarding the adverse tax consequences, if any, for which Complainant shall then be compensated. Within 90 calendar days of the end of the tax year in which the Agency completes payment of the backpay due to Complainant, Complainant shall provide the Agency with her calculation of the additional taxes she incurs as a result of receiving the one-time lump sum backpay award. Within 90 calendar days of receiving such information from Complainant, the Agency shall compensate her for the established adverse tax consequences of her lump sum backpay award. 4) To the extent that it has not done so already, the Agency shall take the following remedial actions: a. Within 60 calendar days of the date this decision is issued, the Agency shall pay Complainant $72,750 in nonpecuniary compensatory damages. b. Within 60 calendar days of the date this decision is issued, the Agency shall pay $33,750 in attorney’s fees. c. Within 60 calendar days of the date this decision is issued, the Agency shall rescind and expunge from all official and unofficial records any adverse actions and documents related to Complainant’s August 2017 removal for Negligent Performance of Duties and Failure to Follow Instructions. The Agency shall provide Complainant documentation verifying the expungement. d. Within 60 calendar days of the date this decision is issued, the Agency shall commit to Complainant in writing: that it will cease from engaging in the unlawful employment practice (retaliation); that it will not engage in similar unlawful employment practices; that, if Complainant returns to employment with the Agency, it will provide Complainant a workplace free from hostility, offensive conduct, and abuse, and that no reprisal will be taken against Complainant for filing and pursuing this or any other complaint under federal EEO law. e. Within 90 calendar days of the date this decision is issued, the Agency shall provide a minimum of four hours of in-person or interactive EEO training to the responsible 10 2021004795 management officials, including, at a minimum, the MACPAC Director. The required training shall address unlawful discrimination under federal EEO laws, with a special emphasis on workplace harassment and reprisal. The Commission does not consider training to constitute disciplinary action. For assistance in obtaining the necessary training, the Agency may contact the Commission’s Training and Outreach Division via email at FederalTrainingandOutreach@eeoc.gov. f. Within 120 calendar days of the date this decision is issued, the Agency shall report whether it proposed discipline against the responsible management officials, including, at a minimum, the MACPAC Director. 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. If any of the responsible management officials have left the Agency's employment, then the Agency shall furnish documentation of their departure date(s). g. Within 30 calendar days of the date this decision is issued, the Agency shall post a notice in accordance with the statement entitled “Posting Order.” 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 evidence that the corrective action has been implemented. POSTING ORDER (G0617) The Agency is ordered to post at its VA Mid-Atlantic Consolidated Patient Account Center (MACPAC), Office of Community Care facility in Birmingham, Alabama 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). ATTORNEY'S FEES (H1019) If Complainant has been represented by an attorney (as defined by 29 C.F.R. § 1614.501(e)(1)(iii)), 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. 11 2021004795 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 receipt of this decision. 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 (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. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0920) The Commission may, in its discretion, reconsider this appellate decision if Complainant or the Agency submits a written request that contains arguments or evidence that tend to establish 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. 12 2021004795 Requests for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration. A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within which to submit a brief or statement in opposition. See 29 C.F.R. § 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9 § VII.B (Aug. 5, 2015). Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx. Alternatively, Complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, a complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless Complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together with the request for reconsideration. The Commission will consider requests for reconsideration filed after the deadline only in very limited circumstances. See 29 C.F.R. § 1614.604(c). COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (T0610) 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 your appeal with the Commission, until such time as the Agency issues its final decision on your complaint. 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. 13 2021004795 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. If you file a request to reconsider and also file a civil action, 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 February 16, 2023 Date