U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Giselle W.,1 Complainant, v. Jeff B. Sessions, Attorney General, Department of Justice (Federal Bureau of Prisons), Agency. Request Nos. 0520180518, 0520180519, 0520180564 Appeal Nos. 0120162671, 0120162672, 0120162673 Agency Nos. BOP-2014-0591, BOP-2013-0785, Bop-2014-0021 DECISION ON REQUEST FOR RECONSIDERATION Both Complainant and the Agency timely requested that the Equal Employment Opportunity Commission (EEOC or Commission) reconsider different aspects of its decision in EEOC Appeal Nos. 0120162671, 0120162672, and 0120162673 (May 14, 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). Complainant worked as the Warden's Secretary, GS-8, at the Agency's Edgefield Federal Correctional Institution in South Carolina. Complainant filed three EEO complaints alleging discrimination on the bases of disability and reprisal when: (1) on April 30, 2013, her request for reasonable accommodation was denied; (2) on September 3, 2013, she received a letter ordering her to report for a fitness-for-duty examination on September 5, 2013; and (3) on April 17, 214, she received an unfavorable performance rating. Complainant initially requested a hearing for each complaint, but subsequently withdrew her requests and the Agency issued a separate final Agency decision (FAD) for each complaint, and Complainant appealed each FAD. Our prior appellate decision consolidated the three appeals. In that decision, we concluded Complainant did not establish a failure to accommodate because she was allowed to work at the Satellite prison camp indefinitely, away from the environment she asserted was exacerbating her medical condition (airway disease/extrinsic asthma). As to claim 2, the decision found that the requirement for a fitness-for-duty examination violated the Rehabilitation Act's prohibition against disability-related inquiries that are not "job related and consistent with business necessity." The decision found that, at the time the examination was required, the Agency had already received extensive medical documentation from Complainant's pulmonologist, who diagnosed her with "Occupational Asthma," and restricted her from performing her duties from the Warden's office due to her condition. The decision found that a fitness-for-duty examination was not consistent with business necessity when the agency already had sufficient medical information to show complainant was unable to perform certain duties due to his/her medical condition. As to claim 3, the decision found Complainant had been subjected to unlawful retaliation because the lowered performance rating was directly related to her requests for reasonable accommodation. In its requests for reconsideration, the Agency first argues that claim 2 regarding the fitness-for-duty examination should not be viewed as a discrimination claim under the Rehabilitation Act, stating that Complainant "asserted a retaliation claim based on prior EEO activity, not a discrimination claim premised on a violation of the Rehabilitation Act [italics in original]." We disagree with the Agency's interpretation of Complainant's claim and conclude that a fair reading of her complaint, the investigation and other statements, allows for the adjudication correctly made in our prior decision under the Rehabilitation Act. The Agency goes on to argue that its order for a fitness-for-duty examination was, in fact, job-related and consistent with business necessity because Complainant was unable to perform her duties as the Warden's secretary due to her physician restricting her from working in the administration building. The Agency argues that it was entitled to seek an independent medical opinion, notwithstanding the treating physician's opinion, to make an informed decision about what to do about Complainant. While we do not discount that under some circumstances an agency is permitted to request an independent medical opinion, under the facts as presented in this case, the Commission did not view this as one of those circumstances and nothing the Agency has argued changes our opinion. Finally, the Agency argues that our prior decision erred in finding unlawful retaliation played a role in Complainant's performance evaluation. While the Agency attempts to relitigate this issue, nothing raised in its brief meets the regulatory criteria for reconsideration. In her request for reconsideration, Complainant disagrees with the finding regarding claim 1. Complainant raises incidents that occurred in 2017 and 2018, outside the time period covered by these complaints. 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. Complainant has not done so here. 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 Nos. 0120162671, 0120162672, and 0120162673 remains the Commission's final 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 take the following remedial actions within 120 days from the date this decision is issued: 1. The Agency shall retroactively raise Complainant's yearly performance rating, which Complainant received on April 17, 2014, to a rating of Outstanding. 2. The Agency shall conduct a supplemental investigation to determine whether Complainant is entitled to compensatory damages incurred as a result of the Agency's discriminatory action. The Agency shall allow Complainant to present evidence in support of a compensatory damages claim. See Carle v. Department of the Navy, EEOC Appeal No. 01922369 (January 5, 1993). Complainant shall cooperate with the Agency in this regard. The Agency shall issue a final decision addressing the issue of compensatory damages no later than 60 days after the Agency's receipt of all information. The Agency shall submit a copy of the final decision to the Compliance Officer at the address set forth herein. 3. The Agency shall provide appropriate remedial EEO training to the responsible management officials identified in this decision as the Warden, Associate Warden, the HRM, and the Rating Official for the performance appraisal. The training must include at least four (4) hours of in-person or interactive training on an Agency's obligations under the Rehabilitation Act and the ant-retaliation provisions. If any of the responsible management officials have left the Agency's employ, the Agency shall furnish documentation of their departure date(s). 4. The Agency shall consider taking disciplinary action against the responsible management officials identified. 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(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). 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 Federal Correction Institution in Edgefield, South Carolina 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)(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 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 (K0618) Under 29 C.F.R. § 1614.405(c) and § 1614.502, compliance with the Commission's corrective action is mandatory. Within seven (7) calendar days of the completion of each ordered corrective action, the Agency shall submit via the Federal Sector EEO Portal (FedSEP) supporting documents in the digital format required by the Commission, referencing the compliance docket number under which compliance was being monitored. Once all compliance is complete, the Agency shall submit via FedSEP a final compliance report in the digital format required by the Commission. See 29 C.F.R. § 1614.403(g). The Agency's final report must contain supporting documentation when previously not uploaded, and the Agency must send a copy of all submissions to the Complainant and his/her representative. 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 September 27, 2018 __________________ 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. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 0520180518 5 0520180518, 0520180519, 0520180564