Request No. 05-2012-0207
06-06-2012
Maryann Light, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Maryann Light,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Request No. 05-2012-0207
Appeal No. 0120111229
Agency No. 200I0673200904378
DENIAL
Complainant timely requested reconsideration of the decision in Maryann Light v. Department of Veterans Affairs, EEOC Appeal No. 0120111229 (November 22, 2011). 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(b).
On December 8, 2009, Complainant filed the instant formal complaint alleging that she was subjected to harassment and a hostile work environment on the basis of race (Caucasian) when:
1. on or about July 5, 2009, five Black co-workers told her that she "smelled like a truck driver," reeked of tobacco and "stunk;"
2. on July 6, 2009, the same Black co-workers took turns coughing in front of her and acting like they were sniffing and gagging;
3. on July 9, 2009, she was accused of using racial slurs toward her co-workers when she said, "you all run with your cronies, and I run with mine;"
4. on July 9, 2009, as a result of being subjected to a hostile work environment, she was compelled to submit her resignation from her position as a Medical Records Technician; and
5. on July 21, 2009, a former co-worker reported her to the VA police and accused her of threatening her and using racial slurs for which she was banned from the facility.
The agency's final decision found complainant failed to establish a claim of harassment based on her allegations. Although complainant never alleged reprisal as a basis of her complaint, the Agency did find that she introduced evidence of retaliation in her affidavit. Specifically, the Agency found complainant established that her supervisor made a statement to her which constituted direct evidence of interference with the EEO process.
The prior decision affirmed the Agency's finding of discrimination, but modified its order. Specifically, the prior decision ordered that the agency conduct a supplementary investigation into complainant's entitlement to compensatory damages.
In her Request, complainant presents a statement supporting her claim of compensatory damages. Furthermore, she claims she was subjected to harassment based on her prior EEO activity. 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(b), and it is the decision of the Commission to deny the request. Complainant failed to establish the prior decision involved a clearly erroneous interpretation of material law or fact. The decision in EEOC Appeal No. 0120111229 remains the Commission's decision. The Agency is directed to comply with the order below. There is no further right of administrative appeal on the decision of the Commission on this request.
ORDER
The Agency is ordered; to the extent it has not already done so, to take the following actions:
1. Within 60 days of the date this decision becomes final, the Agency shall conduct a supplemental investigation to determine whether Complainant is entitled to compensatory damages incurred as a result of the Agency's retaliatory action. The Agency shall allow Complainant to present evidence in support of her compensatory damages claim. See Carle v. Dep't 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 issues 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.
2. Within 120 days of the date this decision becomes final, the Agency shall provide training to S2 regarding the obligation not to restrain, interfere, coerce, or retaliate against any individual who exercises his or her right to oppose practices made unlawful by, or who participates in proceedings under, the Federal equal employment opportunity laws.
3. Within 120 days of the date this decision becomes final, the Agency shall consider taking disciplinary action against S2 identified as the responsible management official in this matter. The Commission does not consider training to be a disciplinary action. The Agency shall report its decision to the Commission and specify what, if any, action was taken. If the Agency decides not to take disciplinary action, it shall set forth the reasons for its decision not to impose discipline.
POSTING ORDER (G0610)
The Agency is ordered to post at its Tampa, Florida facility 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 thirty (30) 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)), he/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 (Q0610)
This decision affirms the Agency's final decision/action in part, but it also requires the Agency to continue its administrative processing of a portion of your complaint. 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 on both that portion of your complaint which the Commission has affirmed and that portion of the complaint which has been remanded for continued administrative processing. 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.
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
06/06/2012
__________________
Date
2
05-2012-0207
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
05-2012-0207