0120072085
09-12-2007
Tamara Stabler, Complainant, v. Lurita Alexis Doan, Administrator, General Services Administration, Agency.
Tamara Stabler,
Complainant,
v.
Lurita Alexis Doan,
Administrator,
General Services Administration,
Agency.
Appeal No. 0120072085
Agency No. 24R6PBSTLS05
Hearing No. 280200500261X
DECISION
Complainant filed a timely appeal with this Commission regarding her
contention that the agency was not in compliance with its September 29,
2006 final decision. The appeal is accepted pursuant to 29 C.F.R. �
1614.504(b).
By final decision dated September 29, 2006, the agency fully implemented
a decision by an EEOC Administrative Judge (AJ) following a hearing
finding complainant had been discriminated against on the basis of sex
(female) when she was sexually harassed by a co-worker and unlawfully
retaliated against for engaging in protected EEO activity when her
supervisor harassed her.
The agency implemented the AJ's order which required the agency to:
1. POSTING: Post notices, for a period of six (6) months, in places
frequented by agency employees of the Public Buildings Service Center.
The notices shall include that, "[A]s a result of the decision of an
EEOC Administrative Judge, the agency is advising all employees that
discrimination including harassment on any basis, as well as retaliation
for participation in EEO activities and/or opposing unlawful employment
practices is prohibited by Federal law." The notices shall further direct
employees that, "[I]n the event that the employee(s) feels that he or
she has been the victim of discrimination, including harassment and/or
retaliation, the employee(s) should contact one or more EEO counselors
by name and phone number immediately."
2. COMPENSATORY DAMAGES: Provide [complainant] with an award of
$17,500 in non-pecuniary compensatory damages which takes into account
the severity and duration of the harm caused to [complainant] by the
agency.
3. REINSTATEMENT: Provide [complainant] with the option of choosing to
remain in [her] current position in the Work Force and Technology Branch
or opt to be reinstated in [her] former position as Program Analyst in
the Data Management Branch of the Public Buildings Service within thirty
(30) days of receipt of the AJ's decision.
4. TRAINING: Ensure by mandatory attendance, that [named individuals]
each receive a minimum of eight hours of training covering the
requirements of Title VII, including the provisions prohibiting
harassment. Additionally, [named individual] shall receive a minimum
of four hours of training regarding the prohibition against retaliation.
The training shall be conducted by an approved continuing legal education
provider not later than three months after receipt of the AJ's decision.
5. ATTORNEY'S FEES: Award the following:
$16,742.50 - Fees to [named attorneys]
$1,166.00 - Costs to [named attorneys]
$8,536.59 - Fees and Costs to [named attorneys]
In a letter dated December 7, 2006, complainant, through her attorneys,
notified the agency that she believed it had not complied with provision
3 of its September 29, 2006 final order. Specifically, complainant
stated that the agency failed to properly reinstate her in accordance
with its order. While conceding she was restored to the title of her
former program analyst position, she stated that, "[i]n terms of my
actual duties, responsibilities, work assigned, job tasks, and other
day-to-day practical considerations, the Agency has failed to reinstate
me to my former position." Complainant did not raise concerns with the
other provisions of the order concerning posting a notice, compensatory
damages, training and attorneys' fees, and the agency has provided
documentation of its compliance with these other provisions.1 Therefore,
only the issue of compliance with provision 3 of the order concerning
reinstatement will be addressed on appeal.
The record further indicates that having received no response from
the agency to her December 7, 2006 correspondence, complainant again
contacted the agency in correspondence dated January 26, 2007. Therein,
complainant notified the agency of her intention to file an appeal with
the Commission alleging that the agency had failed to comply with its
final order in this matter. Thereafter, on February 21, 2007, the
complainant filed the instant appeal.2
In response to complainant's appeal, the agency submitted documentation
in an attempt to demonstrate that it complied with all the corrective
action specified in its September 29, 2006 final order. With regard to
provision 3 concerning complainant's reinstatement, the agency indicates
that the AJ's order obligated the agency to give complainant the option
of choosing to remain in her current position in the Work Force and
Technology Branch or to be reinstated to her former position as Program
Analyst in the Data Management Branch of the Public Buildings Service.
The agency further indicates that correspondence dated August 18, 2006,
from complainant's attorney shows that complainant elected to be placed in
her former program analyst position. In its September 20, 2006 response
to complainant's letter, the agency informed complainant's attorney that
the program analyst position was slated to be effected by a reorganization
of the agency. As such, the letter indicated some of complainant's job
duties would be contracted out and ultimately eliminated. The agency's
letter to complainant's attorney also enclosed a copy of the program
analyst position description in light of the agency's reorganization,
as well as a copy of the description of complainant's original
analyst position for comparison purposes. Finally, the agency advised
complainant's attorney to discuss this information with complainant and
advise the agency of complainant's decision.
The record contains copies of a series of emails from complainant dated
October 20, 2007, in which she advises the agency that she has discussed
her options with her attorney, understood that her former position
"is not the same position" that she previously held and that she still
elected to be placed in her former program analyst position.
Based on the above-described sequence of events, the agency contends
that it has fully complied with its order regarding complainant's
reinstatement. Specifically, the agency indicates that complainant
was given the option to choose the position in which she was placed and
advised of how the agency's reorganization would effect that position.
Upon review of the record herein, we agree. The record demonstrates that
complainant was made aware of the changes to her former position and she
was given the option to remain in her current position. The Commission
further notes that in her appeal to the Commission, complainant never
addresses the agency's contentions that she was informed of the agency
reorganization and its affect on her former position.
Accordingly, we find that the agency has complied with its September 29,
2006 final order and its decision in that regard is affirmed.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
The Commission may, in its discretion, reconsider the decision in this
case if the complainant or the agency submits a written request containing
arguments or evidence which 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.
Requests to reconsider, with supporting statement or brief, must be filed
with the Office of Federal Operations (OFO) within thirty (30) calendar
days of receipt of this decision or within twenty (20) calendar days of
receipt of another party's timely request for reconsideration. See 29
C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for
29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999). All requests
and arguments must be submitted to the Director, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. In the absence of a legible postmark, the
request to reconsider shall be deemed timely filed if it is received by
mail within five days of the expiration of the applicable filing period.
See 29 C.F.R. � 1614.604. The request or opposition must also include
proof of service on the other party.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely, unless extenuating circumstances
prevented the timely filing of the request. Any supporting documentation
must be submitted with your 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 (S0900)
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. 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 (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
September 12, 2007
__________________
Date
1 It is noted that complainant also raised a concern about the agency's
decision to withhold her December 2006 Within-Grade Increase (WIGI)
due to the "partially acceptable" performance rating that she received
while working in the Organizational Resources Division, where she had
been reassigned after she raised her claims of sexual harassment and
retaliation. Complainant contends the denial of the WIGI was "directly
connected" to the underlying discrimination found in the final agency
order. The Commission finds the denial of the WIGI occurred after the
September 29, 2006 final agency decision was issued, and is not properly
before the Commission for review in a compliance appeal concerning
that decision.
2 The Commission notes that complainant's appeal is captioned as a
"Petition for Enforcement." However, a Petition for Enforcement
is only available to enforce an order of the Commission itself and,
therefore we will address complainant's appeal as a claim regarding
the agency's non-compliance with its own final order pursuant to 29
C.F.R. �1614.504.
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0120072085
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
5
0120072085