Kathleen M. James, Complainant, v. Tom J. Vilsack, Secretary, Department of Agriculture, Agency. Request No. 0520100086 Appeal No. 0120073831 Hearing No. 560200600196X Agency No. RD200500344 DENIAL OF REQUEST FOR RECONSIDERATION The Department of Agriculture (agency) timely requested reconsideration of the decision in Kathleen M. James v. Department of Agriculture, EEOC Appeal No. 0120073831 (September 22, 2009). 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). In the appellate decision, the Commission found complainant was not subjected to discrimination based on sex (female) when she was not selected for the Supervisory Loan Specialist position. However, the Commission found the selecting official engaged in unlawful interference with the EEO process. As a remedy for the unlawful interference with the EEO process, the Commission ordered the agency to provide a minimum of 16 hours of EEO training to the selecting official, with a special focus on the retaliation. The Commission also stated that, if complainant had been represented by an attorney, he/she was entitled to reasonable attorney's fees incurred in the processing of the complaint. In their request for reconsideration, the agency argued that the award of attorney's fees was erroneous. The agency stated that complainant was not a prevailing party in this case and was not entitled to attorney's fees. 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. We find that the agency has not shown that the appellate decision involved a clearly erroneous interpretation of material fact or law, or that the appellate decision will have a substantial impact on the policies, practices, or operations of the agency. Notwithstanding, the Commission modifies its previous order and finds that an award of attorney's fees is not appropriate in this case. Specifically, we find complainant is not a prevailing party in this matter for purposes of awarding attorney's fees since she did not prevail on any significant issue that she raised in her complaint. The decision in EEOC Appeal No. 0120073831 with the addition of the modified order remains the Commission's decision. There is no further right of administrative appeal on the decision of the Commission on this request. ORDER To the extent that it has not already done so, the agency is hereby ordered to: 1. Within 180 days of the date of the date this decision becomes final, the agency shall provide a minimum of 16 hours of EEO training to the selecting official, with a special focus on the retaliation 2. The agency shall consider taking appropriate disciplinary action against the selecting official referenced in this decision. The Commission does not consider training to be disciplinary action. The agency shall report its decision to the Compliance Officer, referenced herein. 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 the selecting official has left the agency's employment, then the agency shall furnish documentation of the selection official's departure date. The agency shall submit evidence showing compliance with this decision to the Compliance Officer referenced herein. POSTING ORDER (G0900) The agency is ordered to post at its Stillwater, Oklahoma facility 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. IMPLEMENTATION OF THE COMMISSION'S DECISION (K1208) 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 77960, Washington, DC 20013. 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 (Z1008) 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 from the Court that the Court appoint an attorney to represent you and that the Court also 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 with the Court 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 March 22, 2010 __________________ Date 4 0520100086 U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013