U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Harriet M.,1 Complainant, v. James N. Mattis, Secretary, Department of Defense (Defense Logistics Agency), Agency. Request No. 0520170232 Appeal No. 0120141484 Hearing No. 450-2012-00244X Agency No. DLAF110219 DECISION ON REQUEST FOR RECONSIDERATION Both complainant and the Agency timely requested reconsideration of the decision in EEOC Appeal No. 0120141484 (January 30, 2017). 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). Complainant worked as a GS-6 Electronic Duplicating System Technician for the Agency's Document Services, Oklahoma City Office Group, at the Red River Army Depot in Texas. Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of race (African-American) and sex (female) when: 1. During a visit on February 25, 2011, the Production Manager threatened to transfer the Production function from Building 184 to another facility and laughing stated that she would be without a job. 2. From February to May 2011, management assigned her on a part-time basis to assist CW2 in Building 499 with the EDMS backlog. Management did not assign CWl (Caucasian, male) to assist. Management also assigned two other GS-5 EDSOs (CW3 - Caucasian, female; CW4 - Caucasian, female), who were based in Oklahoma, to assist remotely. . . . . 3. After she helped eliminate the backlog, management did not give her a cash award or a thank you letter. Management also did not document her assistance as an official detail. . . 4. Since 2004, management has allowed CWl to work more overtime. 5. Since 2004, management has compensated her as a GS-6 and CW1 as a GS-7, even though they perform the same work. When she did not receive the Agency's report of investigation within 180 days, Complainant requested a hearing. Complainant asked that the Agency be sanctioned for not investigating her complaint in a timely manner. The Agency did not commence its investigation until after the request for the hearing was made. The Equal Employment Opportunity Commission Administrative Judge (AJ) held a hearing. The AJ issued a decision finding no discrimination which was adopted by the Agency. Complainant appealed the decision. In our previous decision, we found that the Agency did not show good cause for failing to complete its investigation within 180 days of the date of filing of Complainant's complaint. The decision determined that the most appropriate sanction was a default judgment in Complainant's favor. However, because the record did not support a determination that Complainant established a prima facie case of disparate treatment, a claim of harassment, or a prima facie case of compensation discrimination under the Equal Pay Act, the decision found that Complainant was not entitled to any relief. In her request for reconsideration, Complainant argues that she established a prima facie case and therefore she should receive relief. Complainant seeks compensatory damages. In its request for reconsideration, the Agency states that "it is not challenging the Commission's authority to issue sanctions for failure to perform a timely investigation." However, it disagrees with the default judgment. It argues that since, Complainant did not establish a prima facie case, there should be no default judgment. We are not convinced by the arguments before us. A hearing was held and the AJ made credibility findings. We find no reason to disturb the AJ's findings on the merits of the claims, or the previous finding that Complainant failed to establish a prima facie case on her claims. As to the Agency's arguments, we find that the previous decision accurately stated the law regarding sanctions and related relief. After reviewing the previous decision and the entire record, the Commission finds that the requests fail to meet the criteria of 29 C.F.R. § 1614.405(c), and it is the decision of the Commission to deny the requests. The decision in EEOC Appeal No. 0120141484 remains the Commission's decision. There is no further right of administrative appeal on the decision of the Commission on this request. ORDER Unless otherwise indicated, the Agency is ordered to take the following remedial action within one hundred and twenty (120) days of the date this decision: 1. The Agency shall provide training to the responsible EEO management officials regarding their obligations··in processing EEO complaints. 2. The. Agency shall consider taking appropriate disciplinary action against the responsible EEO management officials . 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 take disciplinary action, it shall set forth the reason(s) for its decision not to impose discipline. If any of the, responsible management officials have left the agency's , employ, the agency shall furnish documentation-of their departure date(s). 3. The Agency shall post a notice in accordance with the paragraph below. 1. 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. POSTING ORDER (G1016) The Agency is ordered to post at its Equal Employment Opportunity Operations Division Office, Fort Belvoir, Virginia facility 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 was issued, 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. 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's signature Carlton M. Hadden, Director Office of Federal Operations May 25, 2017 __________________ Date 1 This case has been randomly assigned a pseudonym which will replace Complainant's name when the decision is published to non-parties and the Commission's website. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 3 0520170232 4 0520170232