U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Jaunita W,1 Complainant, v. Sonny Perdue, Secretary, Department of Agriculture, Agency. Request No. 0520180510 Appeal No. 0120161304 Hearing No. 570-2012-00554X Agency Nos. MSCG-10-122 & MSCG-11-002 DECISION ON REQUEST FOR RECONSIDERATION Complainant timely requested that the Equal Employment Opportunity Commission (EEOC or Commission) reconsider its decision in EEOC Appeal No. 0120161304 (Jun. 15, 2018). EEOC Regulations provide that the Commission may, in its discretion, grant a request to reconsider any previous Commission decision issued pursuant to 29 C.F.R. § 1614.405(a), 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). The record reflects that on October 29, 2014, an Administrative Judge issued a default judgment against the Agency and found that Complainant was entitled to relief. The parties were ordered to submit brief regarding relief, as well as on the issue of attorney's fees and costs. On February 1, 2016, the AJ issued a Decision on Damages and Attorney's Fees and Costs. The Agency subsequently issued a final order implementing the AJ's default judgment and the AJ's decision regarding damages and attorney's fees. The prior decision modified the Agency's final order relating to a variety of remedies, and remanded the matter to the Agency for further processing. The prior decision, however, also expressly agreed with the AJ that Complainant failed to establish a prima facie case regarding a non-promotion precluded Complainant's entitlement to back pay. In requesting consideration, through counsel, Complainant argues that the prior decision should have awarded her the relief she requested on the promotion issue (e.g. back pay). Complainant reasoned that the hostile work environment from the removal of her critical duties and responsibilities culminated in the Agency undermining Complainant the opportunity for the promotion she desired. Complainant further challenged that finding discrimination on her claim of harassment but not on the non-promotion claim was manifestly unfair. We thoroughly reviewed the entire record, to include prior decisions, as well as both parties' arguments made here on reconsideration, however this Commission finds Complainant's request failed to meet the criteria of 29 C.F.R. § 1614.405(c), and it is the decision of the Commission to deny it. The decision in EEOC Appeal No. 0120161304 remains the EEOC'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 ORDERED to take the following remedial actions: 1. Within sixty (60) days of the date this decision is issued, the Agency shall pay Complainant $8,500 in nonpecuniary compensatory damages, less any amount previously paid to Complainant as nonpecuniary compensatory damages. 2. Within sixty (60) days of the date this decision is issued, the Agency shall pay Complainant $51,322.16 in attorney's fees and costs, less any amount previously paid to Complainant as attorney's fees and costs. 3. Within ninety (90) days of the date this decision is issued, the Agency shall conduct a minimum of four hours of in-person or interactive training for its Washington, D.C. Office of Civil Rights staff, with a particular focus on EEO case processing. 4. Within sixty (60) days of the date this decision is issued, the Agency shall consider discipline against the responsible management officials. The Commission does not consider training to constitute disciplinary action. 5. Within thirty (30) days of the date this decision is issued, the Agency shall post a notice in accordance with the statement entitled "Posting Order." The Agency is further directed to submit a report of compliance in digital format as provided in the statement entitled "Implementation of the Commission's Decision." The report shall be submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Further, the report must include evidence that the corrective action has been implemented. POSTING ORDER (G0617) The Agency is ordered to post at its Washington, D.C. Office of Civil Rights 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 as directed in the paragraph entitled "Implementation of the Commission's Decision," within 10 calendar days of the expiration of the posting period. The report must be in digital format, and must be submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). ATTORNEY'S FEES (H1016) If Complainant has been represented by an attorney (as defined by 29 C.F.R. § 1614.501(e)(l)(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 the date this decision was issued. 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 (K0617) 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 in the digital format required by the Commission, and submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). The Agency's report must contain supporting documentation, and the Agency must send a copy of all submissions to Complainant. If the Agency does not comply with the Commission's order, Complainant may petition the Commission for enforcement of the order. 29 C.F.R. § 1614.503(a). 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, 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 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 September 26, 2018 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. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 4 0520180510