0520140279
10-29-2014
Amie H., Complainant, v. Robert McDonald, Secretary, Department of Veterans Affairs, Agency.
Amie H.,
Complainant,
v.
Robert McDonald,
Secretary,
Department of Veterans Affairs,
Agency.
Request No. 0520140279
Appeal No. 0120110544
Agency No. 200405902009104244
DENIAL
The Agency requested reconsideration of the decision in Complainant v. Department of Veterans Affairs, EEOC Appeal No. 0120110544 (September 23, 2013). 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).
By regulation, requests must be filed within thirty (30) calendar days after the party receives the previous decision. 29 C.F.R. � 1614.405(c). A document is timely if it is received or postmarked before the expiration of the applicable filing period or, in the absence of a legible postmark, if it is received by mail within five days of the expiration of the applicable filing period. 29 C.F.R. � 1614.604(b).
It is noted that the Commission's previous decision included a Certificate of Mailing indicating that, for purposes of timeliness, the Commission will presume that the decision was received within five (5) calendar days of the date on which it was mailed, September 23, 2013. The Agency is presumed to have received the previous decision no later than September 28, 2013. Thirty days from that date is October 28, 2013. The Agency filed its request on October 31, 2013, which was beyond the 30-day limit set by regulation.
As justification for the late request submission, the Agency stated that it did not receive the previous decision until "[o]n or about October 4, 2013." The Commission finds, however, that the Agency has not offered adequate justification for an extension of the applicable time limit. The Commission has previously held that a party's mere assertion that it received the previous decision at a later date, without additional evidence or explanation, is insufficient to overcome the presumption that the previous decision was received within five calendar days of the date on which it was mailed. See Rajendran v. Dep't of the Army, EEOC Request No. 0520120593 (Jan. 31, 2013) (finding that the agency's assertion that it received the previous decision at a later date, without offering evidence - such as a date stamp indicating receipt - to show that it did so, failed to overcome the presumption that it received the previous decision within five days of mailing); Swanson v. Dep't of the Navy, EEOC Request No. 0520110037 (Dec. 10, 2010) (finding that complainant's assertion that he received the previous decision at a later date, without explaining what caused the delay in receiving the decision, did not constitute sufficient evidence to rebut the presumption that he received the previous decision within five days of mailing).
For the foregoing reasons, the Agency's request is denied because it was untimely filed. The decision in EEOC Appeal No. 0120110544 remains the Commission's decision. There is no further right of administrative appeal on the decision of the Commission on this request. The Agency is directed to comply with the Order set forth below.
ORDER (D0610)
Within one hundred and twenty (120) calendar days of the date this decision becomes final, the Agency is ORDERED to take the following remedial actions:
1) The Agency shall offer Complainant the position of Supervisory Social Services Assistant, GS-0186-08, at the Veterans Affairs Medical Center in Hampton, Virginia, retroactive to the date of her non-selection, July 6, 2009. Complainant shall have fifteen (15) calendar days from the date of the offer to accept or decline the position. If Complainant should decline the Agency's offer of a position, the date of her declination shall be the end date for any back pay due Complainant. If Complainant has retired from the Agency, the date of her retirement shall be the end date for any back pay due Complainant.
2) The Agency shall determine the appropriate amount of back pay, with interest, and other benefits due Complainant since July 6, 2009, pursuant to 29 C.F.R. � 1614.501. Complainant shall cooperate in the Agency's efforts to compute the amount of back pay and benefits due, and shall provide all relevant information requested by the Agency. If there is a dispute regarding the exact amount of back pay and/or benefits, the Agency shall issue a check to Complainant for the undisputed amount. 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."
3) The Agency shall conduct a supplemental investigation to determine whether Complainant is entitled to compensatory damages as a result of her non-selection, and shall afford Complainant an opportunity to establish a causal relationship between the non-selection and any pecuniary or non-pecuniary losses. Complainant shall cooperate in the Agency's efforts to compute the amount of compensatory damages she is entitled to as a result of the discrimination which resulted from her prior EEO activity, and shall provide all relevant information requested by the Agency. The Agency shall issue a new decision regarding compensatory damages.
4) The Agency shall provide eight (8) hours of EEO training to the responsible management officials, including Complainant's First Level Supervisor, regarding their responsibilities under EEO laws.
5) The Agency shall consider taking appropriate disciplinary action against the responsible 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 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).
POSTING ORDER (G0610)
The Agency is ordered to post at its Veterans Affairs Medical Center in Hampton, Virginia 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 one hundred and twenty (120) 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.
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 one hundred and twenty (120) 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 (R0610)
This is a decision requiring the Agency to continue its administrative processing of your complaint. However, if you wish to file a civil action, you have the right to file such action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. In the alternative, you may file a civil action after one hundred and eighty (180) calendar days of the date you filed your complaint with the Agency, or filed your appeal with the Commission. 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. Filing a civil action will terminate the administrative processing of your complaint.
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
__10/29/14________________
Date
2
0520140279
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0520140279