Lawrence S. Lomax,
Complainant,

v. 

R. James Nicholson,
Secretary,
Department of Veterans Affairs,
Agency.

Request No. 0520080115

Appeal No. 0720070039
Agency No. 200406522006101960

DENIAL

The agency timely requested reconsideration of the decision in Lawrence
S. Lomax v. Department of Veterans Affairs, EEOC Appeal No. 0720070039
(October 2, 2007).  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).

On April 7, 2006, complainant sought EEO counseling and, on May 5, 2006,
he filed an EEO complaint claiming discrimination based on race (black),
color (dark-toned), national origin (American, non-Indian), and reprisal
for prior protected EEO activity when he was not selected for the position
of Supervisory Police Officer on March 16, 2006.  Both complainant and
the selectee (black, light-toned, American with Indian heritage) (E1)
served as police officers at the VAMC, Richmond, Virginia.

The record reflects that complainant requested a hearing before an EEOC
Administrative Judge (AJ) on October 13, 2006, and the AJ, located in
Richmond, issued an Order to the agency to produce the complaint file
within 15 days, or by the end of October 2006.  By letter dated October
20, 2006, the agency informed the AJ that 180 days had not elapsed from
the date of the formal complaint; however, complainant filed another
request for a hearing on November 14, 2006.  The agency did not respond
to the AJ's Order until November 27, 2006, when it sent the complaint
file without the Report of Investigation (ROI), and informed the AJ,
for the first time, that the investigation was not complete. In a
follow-up letter dated November 29, 2006, the agency advised the AJ
that the complaint was "assigned pending completion of investigation"
and requested an extension of time until December 20, 2006, to submit
the ROI. The record shows that the agency authorized investigation of
this complaint on November 9, 2006, appointing an agency employee as
the investigator.  As stated by the investigator in the ROI, she began
the investigation on December 7, 2006, and took evidence by "written
affidavit" (no explanation) and completed the ROI on December 13, 2006.
On December 14, 2006, the ROI was forwarded to the AJ and complainant.

The record further reflects that on December 5, 2006, complainant filed a
Motion for Sanctions against the agency based on its non-compliance with
the AJ's Order to produce the complaint file and requested a decision in
his favor in light of the agency's failure to complete the investigation
in a timely manner or show good cause why it had not done so. On January
3, 2007, the agency filed its response, essentially holding complainant's
actions responsible for its delays, stating his untimely request for a
hearing, "false representations" to the AJ, and "pattern of bad faith"
engendered extra time and work for the agency; it included in this list,
as well, the "unmeritorious Motion for Sanctions based on an EEOC Order
issued due to his untimely filing with EEOC and failure to cooperate
with the investigator."  

On January 16, 2007, the AJ issued an Order To Show Cause why the
agency should not be sanctioned for its failure to investigate the
instant complaint within 180 days, as required by EEOC Regulation 29
C.F.R. § 1614.108(e).  She noted that the record showed the agency did
not initiate an investigation until November 9, 2006, when it appointed
an investigator, a date after expiration of the 180-day period allowed
by the regulation.  She pointed to a recent decision from the Commission
that upheld a default judgment against the same agency facility where
the investigation had not commenced until after expiration of the
180-day period.  See Reading v. Department of Veterans Affairs, EEOC
Appeal No. 0720040125 (October 12, 2006).

The agency responded on January 22, and, on January 30, 2007, it asked
that discovery be suspended.  On February 6, 2007, the AJ issued an
Interim Decision, sanctioning the agency by finding that it discriminated
against complainant.  She ordered the agency to grant complainant
retroactive promotion to the position with back pay and benefits; that
the local facility post a Notice; that the agency consider disciplinary
action against the agency's Regional EEO Officer (WMG); and directed
complainant to submit his claim for compensatory damages and attorney's
fees. The agency asked for reconsideration, and complainant filed an
opposition brief.  On March 1, 2007, the AJ issued an Order entering
judgment in this matter, finding that complainant was entitled to $1,000,
in non-pecuniary compensatory damages, in addition to the other relief
previously awarded.

The agency issued its final order on March 28, 2007, rejecting the
AJ's decision.  Pursuant to the agency's' appeal, the Commission issued
a decision finding complainant was not asked, nor did he agree to an
extension, and, given his eagerness for a hearing, it appeared doubtful
that he would have so agreed.  The Commission found the record was
clear--and the agency did not dispute--that it did not initiate an
investigation within the 180-day period, that it did not assign an
investigator until November 9, 2006, and that, by her own testimony,
she did not begin the investigation until December 7 - 28 days after
her appointment. See Investigative Report, p. 1, December 13, 2006.
The Commission found that notwithstanding WMG's description of the
agency's general process, the investigator did not provide a specific
explanation for the failure to initiate an investigation of complainant's
complaint until more than 180 days after he filed his complaint; for
its failure to seek an extension of time from complainant; or for the
investigator's delay until December 7, 2006, to begin the investigation,
which postponed the investigation for another month. Given the agency's
actions, the obvious conclusion was that the agency failed to conduct a
timely investigation of complainant's complaint or follow the procedures
required by the Commission's regulations.  As such, the previous
decision found that the AJ did not abuse her discretion in issuing a
decision in favor of complainant as a sanction for the agency's failure
to conduct a timely investigation or to take other action in accord
with our regulations.  See Reading v. Department of Veterans Affairs,
EEOC Appeal No. 0720040125 (October 12, 2006); DaCosta v. Department
of Education, EEOC Appeal No. 01995992 (February 25, 2000).  Thus,
the previous decision agreed with the AJ that the agency discriminated
against complainant as alleged and ordered relief to complainant as
outlined in our prior decision.

Subsequently, the agency filed this request to reconsider.  In its
request, the agency stated: (1) in sanctioning the agency, the AJ
considered only the effect of the agency's failure to complete the
investigation within 180 days on the integrity of the EEO process,
but did not consider whether the facts of the case warranted a less
severe punishment; (2) the Commission likewise gave no consideration of
various factors, and focused only on the fact that the agency did not
complete their investigation within 180 days, failed to initiate the
investigation until one (1) month after the Investigator was assigned to
the case, and its belief that the agency failed to follow the procedures
required by the Commission's regulations1; (3) the AJ and Commission
should have concluded that the application of Commission precedent
to the facts of the case did not warrant a finding of discrimination
without consideration of the merits of the case; (4) WMG offered
mitigating factors for consideration by the AJ and the Commission,
including increased workload in 2006 and budgetary issues; (5) more
appropriate sanctions should include not allowing the agency to request
additional time during the hearing process; (6) ordering the agency to
pay discovery costs resulting from the delay in the investigation; (7)
prohibiting the agency from requesting summary disposition during the
hearing.  Complainant responded to the agency's request to reconsider.
Among other things, he asked that the decision of the AJ's be sustained.

After consideration of the agency's request to reconsider and the evidence
of record, we find that the AJ did not abuse her discretion in issuing a
decision in favor of complainant as a sanction for the agency's failure
to conduct a timely investigation or to take other action in accord
with the Commission's regulations.  Although we note the decisions in
Voysest, supra and Gray, supra, we find that the record indicates that
AJ considered the particular circumstances in this case surrounding the
agency's failure to investigate complainant's allegations within the time
required in 29 C.F.R. § 1614.108(e), - and considered the statements of
WMG, offering the agency's explanation for the delay - and nevertheless
decided to sanction the agency for its admitted failure to conduct a
timely investigation of complainant's complaint.  As found by our prior
decision, the agency's internal situation regarding budgetary problems and
backlogs of EEO complaints cannot be used as a defense for its failure
to comply with the Commission's regulations.  Also, as stated in the
prior decision, the Commission's regulations authorize AJ's to sanction
a party for failure to respond fully and in a timely manner to requests
for evidence and information.  29 C.F.R. § 1614.109(f)(3).  We find that
while the AJ could have given the agency a lesser sanction for its failure
to conduct a timely investigation, it was within her authority under the
Commission's regulations to sanction the agency as she did.  As such, we
cannot find that the AJ abused her discretion in sanctioning the agency
by issuing a decision in favor of complainant in order to address the
agency's failure to comply with the Commission's regulations. 

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.  The decision in EEOC Appeal No. 0720070039 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 actions:

A.  Within 30 days of the date this decision becomes final, the agency
shall retroactively promote complainant to the position of Supervisory
Police Officer, at the Richmond, Virginia VA, VAMC, with back pay and
benefits, effective the date that E1 was promoted.

B. The agency shall determine the appropriate amount of back pay with
interest and other benefits due complainant, pursuant to 29 C.F.R. §
1614.501, no later than sixty (60) calendar days after the date this
decision becomes final. 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. The agency is directed to provide a minimum of (8) eight hours of
remedial EEO training to the management official(s) responsible for
the selection decision that was found to be discriminatory with special
emphasis on the Title VII. The Commission does not consider training to
be a disciplinary action.

D.  The agency shall consider taking appropriate disciplinary action
against the management official(s) responsible for the selection decision
that was found to be discriminatory. 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.

E.  Within fifteen (15) of the date this decision becomes final, the
agency shall pay complainant $1,000.00 as nonpecuniary compensatory
damages.

F.  The agency shall process complainant's petition for attorney's fees
and costs incurred for the successful prosecution of this appeal in
accordance with 29 C.F.R. § 1614.501.

The agency is further directed to submit a report of compliance,
as provided in the statement below entitled "Implementation of
the Commission's Decision." The report shall 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. Copies of all submissions to the Commission must be sent
to complainant and his representative.

POSTING ORDER (G0900)

The agency is ordered to post at its Richmond, VA, VAMC, 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 (KO501)

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


___12/26/07________________
Date

1 While the AJ's decision cited the Commission's decision in Reading
v. Dept. of Veterans Affairs, EEOC Appeal No. 0720040125 (October 12,
2006)(sanctioning the same agency facility for failure to investigate an
EEO complaint several months before the AJ's decision), the agency cited
the Commission's decisions in Voysest v. Social Security Administration,
EEOC Appeal No. 01A35340 (January 18, 2005) and Gray v. Dept. of Defense,
EEOC Appeal No. 0720050030 (March 1, 2007)(sanctions must be tailored in
each case to appropriately address the underlying conduct of the party
being sanctioned).
??

??

??

??

2
0520080115



U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C.  20036

8
0520080115