U.S. Equal Employment Opportunity Commission (E.E.O.C.)
Office of Federal Operations
* * * RANDOLPH A., COMPLAINANT,
v.
ROBERT MCDONALD, SECRETARY, DEPARTMENT OF VETERANS AFFAIRS, AGENCY.
Request No. 0520160050
Appeal No. 0120120184
Agency No. 200P00102010104757
February 2, 2016
 
DECISION ON REQUEST FOR RECONSIDERATION
 
The Agency timely requested reconsideration of the decision in EEOC Appeal No. 0120120184 (August 6, 2015). 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(c).
 
In its request, the Agency argued that the prior decision involved a clearly erroneous interpretation of law or fact and that it will have a substantial impact on the policies, practices, or operations of the Agency. Specifically, the Agency argues that the prior decision erred when it determined that the panel of Agency employees before whom Complainant interviewed for the position of Statistician, considered Complainant's prior EEO activity when it failed to recommend Complainant to the selecting official. The Agency conceded that the record contained the testimony of one of the panel members (S1) admitting to informing other members of the panel that Complainant had previously filed an EEO complaint against the Agency's facility in Palo Alto, California and that "[the prior EEO complaint] was impossible to ignore." However, the Agency argues that this testimony was insufficient to support a finding of reprisal discrimination. Despite testimony from S1 that he thought the panel members took Complainant's prior EEO activity into consideration, the Agency argues that the record did not contain sufficient to establish that the panel members actually considered Complainant's EEO activity in its decision not to recommend Complainant to the selecting official.
 
The prior decision found that for S1 and, more likely than not, the whole panel, Complainant's prior protected EEO activity was taken into consideration when the decision was made to not refer Complainant to the selecting official. In that regard, the prior decision determined that the record established by a preponderance of the evidence that the panel was motivated by retaliatory animus when they made the decision not to refer Complainant for the Statistician position.
 
We further note that the previous decision found the Agency liable for the unlawful decision even if the selecting official was not aware of the retaliatory motivations of S1 and the panel under the "cat's paw" theory. The term "cat's paw" describes an instance where the discriminatory animus of one employee is transferred through another, who acts as a conduit. This prevents the escape of liability where discrimination is happening, but the deciding official did not knowingly take part. See Staub v. Proctor Hospital, 131 S.Ct. 1186 (2011); Jones v. National Security Agency, EEOC Appeal No. 0720110014 (July 19, 2012).
 
In its request for reconsideration, the Agency essentially expresses its disagreement with the previous decision, and raises the same arguments it made or could have made in the original appeal. We emphasize that a request for reconsideration is not a second appeal to the Commission. See EEO MD-110, Ch. 9, § VII.A. Rather, a reconsideration request is an opportunity to demonstrate that the appellate decision involved a clearly erroneous interpretation of material fact or law. or will have a substantial impact on the policies, practices, or operations of the Agency. The Agency has not done so here.
 
Therefore, after reviewing 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(c), and it is the decision of the Commission to deny the request. The decision in EEOC Appeal No. 0120120184 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.
  
ORDER
 
The Agency is ORDERED to:
 
1. Within 120 (one hundred and twenty) days from the date this decision becomes final, the Agency shall offer Complainant the position of Statistician, GS-13, or a substantially equivalent position at the S Francisco VA Medical Center in San Francisco, California, retroactive to the official date that the Selectee began in the position. Complainant will have fifteen (15) days to accept the position, and he must do so in writing. If no substantially equivalent position is available, then the Agency shall pay Complainant front pay within sixty days of the date it determined that no position was available. From pay shall be awarded until Complainant has been placed in the appropriate position as stated above. If there is a dispute regarding the exact amount of front pay, the Agency shall issue a check to Complainant for the undisputed amount within sixty days of the date the agency determines the amount it believes to be due. 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."
 
2. Within 120 (one hundred and twenty) days from the date this decision becomes final, the Agency must pay Complainant back pay and benefits, with interest, including intervening step increases Complainant may have lost, for the period of the date the Selectee began in the position of the date of this decision. All back pay calculations should be computed in accordance with 5 C.F.R. § 550.805. Complainant shall cooperate in the Agency's efforts to compute the amount of back pay due, and shall provide all relevant information requested by the Agency. If there is a dispute regarding the exact amount of back pay, the Agency shall issue a check to Complainant for the undisputed amount within 60 calendar days of the date the Agency determines the amount it believes to be due. Complainant may petition for enforcement or clarification of the amount in dispute.
 
3. The Agency shall conduct a supplemental investigation into Complainant's compensatory damages and attorney's fees and costs. The Complainant shall cooperate in the Agency's efforts to compute the compensatory damages, attorney's fees, and costs, and shall provide all relevant information requested by the Agency. Within (60) calendar days of the Agency's receipt of Complainant's compensatory damages evidence and attorney's fees statement, the Agency shall issue a final decision addressing the issues of attorney's fees, costs, compensatory damages, and back pay. The Agency shall submit a copy of the final decision to the Commission's Compliance Officer.
 
4. Within 120 (one hundred and twenty) days from the date this decision becomes final, the Agency shall consider taking appropriate disciplinary action against the S1, S2, S3, S4, and S5. The Commission does not consider training to be disciplinary action. 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 for its decision not to impose discipline. If the responsible management officials have left the Agency's employment, the Agency shall furnish documentation of their departure dates.
 
5. Within 120 (one hundred and twenty) days from the date this decision becomes final, the Agency shall provide at least sixteen (16) hours of EEO training to all individuals who may be on interview panels or may be act as a selecting official within the Agency's Office of Academic Affiliations, with an emphasis on reprisal.
 
6. Within 120 (one hundred and twenty) days from the date this decision becomes final, the Agency shall issue an instruction, to be followed by all personnel involved in its selection actions, that evidence of prior EEO activity on the part of an applicant for employment or promotion is irrelevant, and may not be considered in the selection process, regardless of the source of that information.
 
The Agency shall provide a report of compliance with this order to the Commission's Compliance Office. Copies must also be sent to Complainant and his representative.
  
POSTING ORDER
 
The Agency is ordered to post at its San Francisco facility and in its Office of Academic Affiliations in Washington, D.C., copies of the attached notice. Copies of the notice, after being signed by the Agency's duly authorized representative, shall be posted both in hard copy and electronic format by the Agency within 30 calendar days of the date this decision becomes final, and shall remain posted for 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 10 calendar days of the expiration of the posting period.
  
ATTORNEY'S FEES (H0610)
 
If Complainant has been represented by an attorney (as defined by 29 C.F.R. § 1614.501(e)(1)(iii)), 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 (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 (Z0815)
 
 If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant's Right to File a Civil Action for the specific time limits).
 
 
FOR THE COMMISSION:
 
Carlton M. Hadden
Director
Office of Federal Operations