Sylvia Farrington, Complainant, v. Janet Napolitano, Secretary, Department of Homeland Security, (Federal Emergency Management Agency), Agency. Request No. 0520110295 Appeal No. 0720090011 Hearing No. 510-2006-00218X Agency No. HS 05-FEMA-004142 DENIAL The Agency timely requested reconsideration of the decision in Sylvia Farrington v. Department of Homeland Security, EEOC Appeal No. 0720090011 (January 19, 2011). EEOC Regulations provide that the Equal Employment Opportunity Commission (EEOC or 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). BACKGROUND In Farrington, the Commission reversed the Agency’s final action rejecting an EEOC Administrative Judge’s (AJ) decision finding discrimination in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq., and ordering remedial relief. The Commission found no basis to disturb the AJ’s findings and remedial orders. In Farrington, the Commission ordered, in relevant part, that within 60 calendar days of the date the decision became final, the Agency shall (1) pay Complainant back pay; (2) place her in a managerial position comparable to the one she held at the time of the discrimination at issue, outside the supervision of S1 and named Agency official; (3) issue an email praising and welcoming Complainant to return to the Agency; and (4) post a notice nationwide in accordance with a posting order in the Commission’s decision. CONTENTIONS ON REQUEST FOR RECONSIDERATION The Agency writes that it is seeking reconsideration, or in the alternative, clarification of relief ordered in Farrington. It contends that because Complainant’s job as a Disaster Assistance Employee (DAE) was intermittent in nature, it is very difficult to calculate back pay, without speculation. The Agency argues that it is unclear when back pay should end since the position Complainant occupied prior to being released was later converted to a Disaster Temporary Employee, a full-time position in 2005, which means she would have been asked to compete for the position and her selection was not guaranteed. Regarding the Commission’s order to place Complainant in a managerial position comparable to the one she held at the time of the discrimination at issue, the Agency writes that Complainant’s old position no longer exists, and if a comparable position no longer exists, it will be impossible for the Agency to fulfill this requirement. On the ordered email praising and welcoming Complainant’s return to the Agency, the Agency argues that it is unclear whether it should be sent to the office where discrimination occurred or sent Agency wide. The Agency argues that the email notification should be limited to where the discrimination occurred because there is no evidence that Complainant’s situation was reported or known Agency wide. It similarly argues that the ordered posting notice should be limited to the office where the discrimination occurred. In opposition to the Agency’s request for reconsideration, Complainant argues that the Commission in Farrington upheld the AJ’s findings and remedial orders, which contained detailed information on how to calculate her back pay and determine when it ceased. On the order to place her in a managerial position comparable to the one she held a the time of the discrimination at issue, Complainant observes that the Agency does not state whether a comparable position is available, and argues that reconsideration should not be granted based on a hypothetical situation. On the email and posting, Complainant refers to the AJ’s decision that they should be sent and posted Agency-wide. Complainant recites the AJ’s explanation that this was necessary because of the Agency made public announcements to managers and staff that Complainant was the subject of administrative investigation and released, and that some DAEs have worked in various locations in the country. Complainant also argues that she has incurred additional attorney fees defending the AJ’s decision at the administrative appellate level. ANALYSIS AND FINDINGS 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). The Agency’s request does not meet the criteria for reconsideration. The AJ’s decision provided specific direction on how to calculate back pay and determine when it ceased. Given the language in Farrington that the Commission discerned no basis to disturb the AJ’s findings and remedial orders and its general order for back pay, we find that compliance with the Commission’s order for back pay requires the Agency to follow directions in the AJ’s decision for calculating back pay, as well as complying with 29 C.F.R. § 1614.501.1 To the extent this does not resolve some questions, the Agency must comply with Commission case law in resolving how to calculate back pay. Regarding the Commission’s order to place Complainant in a managerial position comparable to the one she held at the time of the discrimination at issue, we agree with the Complainant’s argument that reconsideration should not be granted based on a hypothetical situation. Also, this matter could be resolved by placing Complainant in any position agreeable to both parties. The AJ wrote that the email should be sent by the Mitigation Region Director for Region 4 nationwide to all employees, and gave the specific brief language for the required email. In sum, the language welcomed Complainant and complemented her performance. In light of the finding in Farrington finding no basis to disturb the AJ’s findings and remedial orders and the Commission’s general order about the email, we find that compliance with the Commission’s order on the email requires the Agency to follow directions in the AJ’s decision on the sending and content of the email. Complainant had hundreds of subordinates, and some people in the Agency have moved around since the Agency made discriminatory derogatory public announcements to Agency and staff about Complainant. Given this, the decision in Farmington for a nationwide email and posting was not erroneous. 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. 0720090011 remains the Commission's 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. ORDER2 The Agency is ordered to take the following remedial actions: 1. Within sixty (60) calendar days of the date this decision becomes final, the Agency shall tender to Complainant $60,000 in non-pecuniary compensatory damages. 2. Within sixty (60) calendar days of the date this decision becomes final, the Agency shall tender to Complainant’s attorney $114,842.48 in attorney fees.3 3. Within sixty (60) calendar days of the date this decision becomes final, the Agency shall pay Complainant back pay. 4. Within sixty (60) calendar days of the date this decision becomes final, the Agency shall place Complainant in a managerial position comparable to the one she held at the time of the discrimination at issue, outside the supervision of S1 and named Agency official. 5. Within sixty (60) calendar days of the date this decision becomes final, the Agency shall provide training for the Responsible Management Officials. 6. Within sixty (60) calendar days of the date this decision becomes final, the Agency shall expunge evaluation reports of any documents referencing the administrative investigation from Complainant’s personnel file. 7. Within sixty (60) calendar days of the date this decision becomes final, the Agency shall amend Complainant’s performance evaluation to reflect a highly favorable evaluation. 8. The Agency shall remove the mentoring requirement imposed by management. 9. The Agency shall issue an email praising and welcoming Complainant to return to the Agency. 10. The Agency shall post nationwide in accordance with the paragraph below. 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. ATTORNEY'S FEES (H0610) 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. POSTING ORDER (G0610) The Agency is ordered to post at its Federal Emergency Management Agency 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 (K0610) 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 (P0610) 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 (Z0610) 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 May 12, 2011 __________________ Date 1 For example, the AJ’s decision stated that back pay shall be calculated at $80,000 a year, but this does not take into account salary increases, if any, as anticipated by 29 C.F.R. § 1614.501, which must be included. 2 Information about the meaning of portions of this order is contained in the body of this decision. 3 Complainant may apply for additional fees and costs incurred after the AJ’s decision, in accordance with the ATTORNEY'S FEES (H0610) order below. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 0520110295 U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 2 0520110295