0520080667_rdoc
09-10-2008
Vera J. Robinson, Complainant, v. Henry M. Paulson, Jr., Secretary, Department of the Treasury, Agency.
Vera J. Robinson,
Complainant,
v.
Henry M. Paulson, Jr.,
Secretary,
Department of the Treasury,
Agency.
Request No. 0520080667
Appeal No. 0720070015
Agency No. 052210
Hearing No. 330-2006-00003X
DENIAL OF REQUEST FOR RECONSIDERATION
The agency requested reconsideration of the decision in Vera J. Robinson
v. Department of the Treasury, EEOC Appeal No. 0720070015 (May 22, 2008).1
EEOC Regulations provide that the Commission may, in its discretion,
grant a request to 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).
After reconsidering 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(b), and it is the decision of the Commission to deny
the request.2 The decision in EEOC Appeal No. 0720070015 remains the
Commission's final decision. There is no further right of administrative
appeal on the decision of the Commission on this request. The agency
shall comply with the Order as set forth below.
ORDER
To the extent it has not already done so, the agency is ordered to take
the following remedial action:
A. Within sixty (60) days of the date this decision becomes final,3 the
agency shall promote complainant to the position of Bankruptcy Specialist,
GS-1101-12, retroactive to October 1, 2004. The agency is also ordered
to provide complainant with all step and grade increases to which she
would have been entitled absent the discrimination.
B. Within sixty (60) calendar days of the date this decision becomes
final, the agency is directed to award complainant back pay, with
interest, for all wages and benefits to which she is entitled, if
applicable, from October 1, 2004 to August 21, 2006. The agency shall
determine the appropriate amount of back pay, interest, and other
benefits due complainant, pursuant to 29 C.F.R. � 1614.501(c). The
complainant shall cooperate in the agency's efforts to compute the
amount of back pay and benefits due, and shall provide all relevant
information requested by the agency. If there is a dispute regarding
the exact amount of back pay and/or benefits, the agency shall issue
a check to the complainant for the undisputed amount within sixty (60)
calendar days of the date the agency determines the amount it believes
to be due. The complainant may petition for enforcement or clarification
of the amount in dispute. 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."
C. Within sixty (60) calendar days of the date this decision becomes
final, the agency is directed to determine any compensation due
complainant for working in the Supervisory Revenue Officer position
during the period between October 1, 2004 to August 21, 2006, with
interest. Any money the agency collected due to the overpayment of salary
to complainant for work performed during this period will be returned
to complainant. Further, if complainant has already paid income tax on
the overpayment, the agency shall determine the tax ramifications and
assure that complainant is not required to pay income tax twice on the
overpayment.
D. The agency shall remove the counseling letter issued April 12,
2005, from complainant's official personnel folder and all other
files maintained by the agency. The agency is also ordered to revise
complainant's mid-year performance appraisal, received on July 29, 2005,
raising the three disputed critical elements to reflect a rating of
4.8. All appraisals issued which utilized the mid-year appraisal shall
be removed from complainant's official personnel folder. Complainant
shall also award complainant any and all awards she would have received
with the higher performance appraisal.
E. The agency shall remove the February 10, 2006, write-up regarding
work assignments which had been reassigned to the Philadelphia, PA,
Service Center, and any and all discipline issued as a result of the
write up from complainant's official personnel folder.
F. Within thirty (30) days of the date this decision becomes final, the
agency shall pay complainant the amount of $85,000.00 in non-pecuniary
compensatory damages.
G. Within thirty (30) days of the date this decision becomes final,
the agency shall consider appropriate disciplinary action against
the individual referred to as the TM in this decision and report its
decision. 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. The Commission does not consider training to be a disciplinary
action.
H. The agency should provide training to the management officials who
discriminated and retaliated against complainant regarding Title VII and
their obligations not to restrain, interfere, coerce, or retaliate against
any individual who exercises his or her right to oppose practices made
unlawful by, or who participates in proceedings under, the Federal equal
employment opportunity laws. The Commission does not consider training
to be a disciplinary action.
I. The agency is further directed to submit a report of compliance,
as provided in the statement entitled "Implementation of the Commission's
Decision." The report shall include supporting documentation verifying
that the corrective action has been implemented. Copies of its report(s)
must be provided to complainant and her representative.
POSTING ORDER (G0900)
The agency is ordered to post at its facility in Houston, Texas, copies
of the attached notice. Copies of the notice, after being signed by the
agency's duly authorized representative, shall be posted by the agency
within thirty (30) calendar days of the date this decision becomes final,
and shall remain posted for sixty (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
at the address cited in the paragraph entitled "Implementation of the
Commission's Decision," within ten (10) calendar days of the expiration
of the posting period.
ATTORNEY'S FEES (H0900)
If complainant has been represented by an attorney (as defined by 29
C.F.R. 1614.501(e)(1)(iii)), he/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. 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 this decision becoming
final. 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 (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 (R0408)
This is a decision requiring the agency to continue its administrative
processing of your complaint. However, if you wish to file a civil
action, you have the right to file such action in an appropriate United
States District Court within ninety (90) calendar days from the date
that you receive this decision. 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 (Z0408)
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
____09/10/2008______________
Date
1 The agency asserted that it received the prior decision on June 11,
2008, 20 days after it was mailed, submitting a copy of the first page
showing receipt on that date by the agency's Office of Civil Rights and
Diversity; we note, also, that the agency's request was mailed from the
Office of Chief Counsel, Dallas, Texas. The Commission's Certificate
of Mailing for EEOC Appeal No. 0720070015 indicated it was mailed
to the agency's designated official (see 29 C.F.R. � 1614.102(b)(4))
in Washington, D.C., on May 22, 2008, and that the Commission presumed
receipt within five days. Other than the date stamp indicating receipt
at a separate agency facility, no other explanation or evidence was
offered to show that the agency's designated EEO official did not receive
the prior decision within five days, nor did the agency seek waiver,
estoppel, or equitable tolling pursuant to 29 C.F.R. � 1614.604(c).
While we find it unlikely that our prior decision took 20 days to travel
such a short distance across the city, we will find the agency's request
timely at this time. The agency is advised to see our recent decision
in Graham v. USPS, EEOC 0720030064 (August 14, 2008).
2 The previous decision reviewed the AJ's decision, finding that it was
supported by substantial evidence. In order to merit the reconsideration
of a prior decision, the requesting party must submit written argument
that tends to establish that at least one of the criteria of 29 C.F.R. �
1614.405(b) is met. The Commission's scope of review on a request for
reconsideration is narrow and is not merely a second appeal. Lopez
v. Department of the Air Force, EEOC Request No. 05890749 (September
28, 1989); Regensberg v. USPS, EEOC Request No. 05900850 (September 7,
1990). The Commission finds that the agency's request does not meet the
regulatory criteria of 29 C.F.R. � 1614.405(b), in that, the request does
not identify a clearly erroneous interpretation of material fact or law,
nor does it show that the underlying decision will have a substantial
impact on the policies, practices or operation of the agency.
3 This decision becomes final when issued.
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0520080667
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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0520080667