Shirley A. Fialkowski, Complainant,v.Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity CommissionDec 22, 2003
05A40018 (E.E.O.C. Dec. 22, 2003)

05A40018

12-22-2003

Shirley A. Fialkowski, Complainant, v. Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.


Shirley A. Fialkowski v. Department of Veterans Affairs

05A40018

December 22, 2003

.

Shirley A. Fialkowski,

Complainant,

v.

Anthony J. Principi,

Secretary,

Department of Veterans Affairs,

Agency.

Request No. 05A40018

Appeal No. 07A30009

Agency Nos. 2001-0521; 2001-300151

Hearing No. 130-A2-8121X

DENIAL OF REQUEST FOR RECONSIDERATION

Shirley A. Fialkowski (complainant) timely initiated a request to the

Equal Employment Opportunity Commission (EEOC or Commission) to reconsider

the decision in Shirley A. Fialkowski v. Department of Veterans Affairs,

EEOC Appeal No. 07A30009 (August 15, 2003). EEOC Regulations provide that

the Commission may, in its discretion, 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(b).

In the decision below, the Commission found that complainant was entitled

to $10,000.00 in compensatory damages for pain and suffering caused by

the agency's retaliatory conduct. In the instant request, complainant

raises no argument or evidence that was not previously considered in

the prior decision. Complainant merely argues that $10,000.00 award does

not sufficiently remedy the damages she has incurred.

Having considered the evidence of the record and complainant's submission,

we find that complainant failed to show that the appellate decision

involved a clearly erroneous interpretation of material fact or law

or would have a substantial impact on the policies, practices, or

operations of the agency. Therefore, the Commission finds that the

request fails to meet the criteria of 29 C.F.R. � 1614.405(b), and it

is the decision of the Commission to deny the request. The decision

in EEOC Appeal No. 07A30009 remains the Commission's final decision.

There is no further right of administrative appeal on the decision of

the Commission on this request for reconsideration.

ORDER

To the extent that it has not already done so, the agency is ordered to

take the following remedial action within sixty (60) days of the date

on which this decision becomes final;

Pay complainant compensatory damages in the amount of $10,000.00.

Pay complainant $11,744.40 in back pay.

Pay complainant $1,417.50 as reimbursement for health insurance premiums.

Pay complainant $3,000.00 as a recruitment bonus.

Pay complainant prejudgement interest on the back pay, the health

insurance premiums, and the recruitment bonus from February 11, 2001

until the date that the payment is/was made, at the IRS interest rate.

Complainant's personnel file and records shall be documented to note

that she served in the capacity of Registered Nurse from February 11,

2001 until the date that she is/was employed.

Offer to hire complainant as a Registered Nurse. If the agency failed to

do so by October 1, 2002, pursuant to the Administrative Judge's Order,

the agency will be responsible for paying complainant any additional

back pay, health insurance premiums and interest that accrued between

October 1, 2002 and the time complainant was/is offered employment as

a Registered Nurse. If complainant accepts/ed the Registered Nurse

position, complainant should be earning at least $52,408.00 annually.

Credit complainant with leave time and service that she would have

accrued had she been hired by the agency on February 11, 2001.

Provide training of at least one (1) hour in length concerning retaliation

to the members of Nursing Services.

Consider taking appropriate disciplinary action against the responsible

management officials. The Commission does not consider training to

be disciplinary action. The agency shall report its decision to the

compliance officer. 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 employ, the agency shall furnish documentation

of their departure date(s).

Ensure that complainant is not subjected to any form of retaliation.

IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)

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 19848,

Washington, D.C. 20036. 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 (P0900)

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 (Z1199)

If you decide to file a civil action, and if you do not have or cannot

afford the services of an attorney, you may request that the Court appoint

an attorney to represent you and that the Court permit you to file the

action without payment of fees, costs, or other security. See Title VII

of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.;

the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c).

The grant or denial of the request is within the sole discretion of

the Court. Filing a request for an attorney does not extend your time

in which to file a civil action. Both the request and the civil action

must be filed within the time limits as stated in the paragraph above

("Right to File A Civil Action").

FOR THE COMMISSION:

______________________________

Carlton M. Hadden, Director

Office of Federal Operations

December 22, 2003

__________________

Date