0520170121
04-11-2017
Selene M.,1 Complainant, v. Bill Johnson, President and Chief Executive Officer, Tennessee Valley Authority, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Selene M.,1
Complainant,
v.
Bill Johnson,
President and Chief Executive Officer,
Tennessee Valley Authority,
Agency.
Request No. 0520170121
Appeal No. 0720150024
Hearing No. 420-2011-00208X
Agency No. 2011037
DECISION ON REQUEST FOR RECONSIDERATION
On November 15, 2016, the Agency timely requested reconsideration with the Equal Employment Opportunity Commission (EEOC or Commission) of the decision in EEOC Appeal No. 0720150024 (October 18, 2016). 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).
In our previous decision, we dismissed the Agency's appeal because it was untimely filed. We held that the decision of the EEOC Administrative Judge (AJ) finding discrimination became the Agency's final action by operation of law, and directed the Agency to provide relief consistent with the decision of the AJ, which we specified in an Order.
Further, we directed the Agency as follows:
When the Agency requests reconsideration and the case involves a finding of discrimination regarding a removal, separation, or suspension continuing beyond the date of the request for reconsideration, and when the decision orders retroactive restoration, the Agency shall comply with the decision to the extent of the temporary or conditional restoration of the Complainant to duty status in the position specified by the Commission, pending the outcome of the Agency request for reconsideration. See 29 C.F.R. � 1614.502(b).
The Agency shall notify the Commission and the Complainant in writing at the same time it requests reconsideration that the relief it provides is temporary or conditional and, if applicable, that it will delay the payment of any amounts owed but will pay interest from the date of the original appellate decision until payment is made. Failure of the Agency to provide notification will result in the dismissal of the Agency's request. See 29 C.F.R. � 1614.502(b)(3).
On request, the Agency does not contest that it untimely filed its appeal and attributes this to a clerical error. It argues that the AJ's order that the Agency give Complainant a permanent, salaried management position was obviously and clearly erroneous, and our dismissing its appeal solely for timeliness where Complainant was not prejudiced by the delay was contrary to justice, arbitrary, capacious, and an abuse of discretion. It also argues that the above relief would have a substantial impact on the policies, practices or operations of the Agency.
The Agency's request fails to meet the criteria for reconsideration. We correctly decided in our previous decision that the Agency failed to timely file its appeal. Moreover, the Agency did not provide the required notice to the Commission concerning interim relief at the same time it filed its request in accordance with 29 C.F.R. � 1614.502, subjecting this request to dismissal.
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(c), and it is the decision of the Commission to deny the request. The decision in EEOC Appeal No. 0720150024 remains the Commission's decision. The Agency's request is also dismissed. 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 shall take the following actions within the specified number of days of the date this decision is issued:
1. The Agency shall place Complainant in a permanent position of TVA management as a TVA salaried employee, with a salary of equal to, or more than, what she was earning when she was involuntarily transferred to Caledonia, Mississippi, on January 21, 2011 from TVA's Muscle Shoals, Alabama facility to TVA's Caledonia, Mississippi facility.
2. The Agency shall pay Complainant $50,000 in compensatory damages.
3. The Agency shall pay Complainant back pay and all other monetary benefits, including retirement benefits, cost of living adjustments (COLA), and training that she would have received had she not been involuntary transferred to Caledonia, Mississippi on January 21, 2011. Back pay and COLA shall be calculated from the same effective date of the involuntary transfer on January 21, 2011. The Agency shall pay Complainant interest on her back pay at the same rate that the Internal Revenue Service charges on underpayment of taxes and it shall be compounded quarterly.
4. The Agency shall provide Complainant with all leave (annual, sick, award) that Complainant would have accrued absent the discriminatory action. The Agency shall reimburse Complainant for all medical expenses that she has incurred that would have been paid by insurance had she not been terminated, including reimbursement for COBRA premiums paid by Complainant after her termination.
5. The Agency shall provide training to all of its managers and supervisors, including its EEO, Human Resources and Legal Departments at all of its facilities on the prohibition of unlawful discrimination on the laws enforced by the EEOC and shall provide training to all of its managers and supervisors, Agency-wide, including its EEO, Human Resources, and Legal Departments on the progressive discipline and termination of employees.
6. The Agency shall post, for the benefit of its civilian employees, a copy of the attached posting order for 60 consecutive days in its facilities at Muscle Shoals, Alabama, including all places where notices to employees are customarily posted and shall take steps to ensure that the posting order is not altered, defaced or covered.
7. The Agency shall take appropriate preventive steps to ensure that no employee is subject to retaliation and to ensure that appropriate steps are taken immediately after Agency management is notified of any such retaliation allegation.
8. The Agency shall ensure that Complainant is not retaliated against based on her EEO complaint.
9. The Agency shall pay Complainant's attorney's fees in the amount of $61,960.11.
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 (G0914)
The Agency is ordered to post copies of the attached notice at the Agency's facility at Muscle Shoals, Alabama. 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 becomes final, 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.
ATTORNEY'S FEES (H1016)
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 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 (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
April 11, 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.
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0520170121