0520120295
12-20-2012
Veronica Montes-Rodriguez, Complainant, v. Tom J. Vilsack, Secretary, Department of Agriculture (Animal and Plant Health Inspection Services), Agency.
Veronica Montes-Rodriguez,
Complainant,
v.
Tom J. Vilsack,
Secretary,
Department of Agriculture
(Animal and Plant Health Inspection Services),
Agency.
Request No. 0520120295
Appeal No. 0120080282
Hearing No. 510-2006-00214X
Agency No. APHIS-2003-01605
DENIAL
The agency timely requested reconsideration of the decision in Veronica Montes-Rodriguez v. Department of Agriculture, EEOC Appeal No. 0120080282 (January 12, 2012). 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).
In our previous decision, we found that the EEOC Administrative Judge (AJ) erred in denying Complainant's motion to sanction the Agency for its delay in completing the EEO investigation. We noted that the Commission's October 15, 2004, decision in Montes-Rodriguez, EEOC Appeal No. 01A41480, ordered the Agency to complete and provide Complainant with a copy of the investigation within 150 days. We noted that the Agency did not initiate the investigation until 202 days had elapsed from the date the Commission's decision became final. We further noted that the Agency failed to provide Complainant with a copy of the investigative file until 299 days had elapsed, nearly double the amount of time allowed by the Commission's order. We therefore found that a default judgment in Complainant's favor was an appropriate remedy. We noted that by issuing a default judgment against the Agency, we were finding in Complainant's favor on her complaint of discrimination. We remanded the matter for a hearing on Complainant's entitlement to compensatory damages. We also ordered the Agency to provide training and consider taking appropriate disciplinary action against the responsible management officials.
We further noted that, pursuant to the Commission's decisions in Cox v. Soc. Sec. Admin., EEOC Appeal No. 0720050055 (Dec. 24, 2009) and Royal v. Dep't of Veteran's Affairs, EEOC Request No. 0520080052 (Sep. 25, 2009), Complainant's failure to establish a prima facie case of discrimination did not prevent her from receiving compensatory damages. We noted that although Complainant is a member of a protected class and was subjected to an adverse action, she neither identified any similarly-situated individuals outside of her protected class that were treated more favorably nor submitted evidence establishing an inference of national origin discrimination.
It its request for reconsideration, the Agency, in pertinent part, contends that EEOC regulations and precedent do not permit an award of compensatory damages to a complainant who has failed to establish a prima facie case of discrimination. The Agency contends that the inclusion of compensatory damages in this case exceeds the maximum relief allowed under Title VII. The Agency contends that the Commission has previously found that compensatory damages were not intended to be a remedy for an agency's improper handling of an EEO complaint. The Agency further contends that our previous decision improperly relied on our decisions in Cox and Royal. The Agency contends that the complainants in Cox and Royal received compensatory damages only after the AJ determined that the record supported a finding of discrimination. The Agency further contends that our holding in Royal requires that there be a determination of whether there was "evidence that satisfies the court," which establishes a complainant's right to relief following a decision to issue a default judgment. The Agency contends that one way to show a right to relief is to establish the elements of a prima facie case.
The Agency further contends that our orders, requiring the Agency to consider disciplining alleged responsible management officials and issue a posting order, were improper because there has been no finding of discrimination. The Agency lastly contends that our previous decision will a have substantial impact on the policies, practices, and operations of the Agency.
We remind the Agency that a "request for reconsideration is not a second appeal to the Commission." Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110) (rev. Nov. 9, 1999), at 9-17; see, e.g., Lopez v. Dep't of Agriculture, EEOC Request No. 0520070736 (Aug. 20, 2007). Rather, a reconsideration request is an opportunity to demonstrate that the previous decision involved a clearly erroneous interpretation of material fact or law; or (2) will have a substantial impact on the policies, practices, or operations of the Agency. The Agency has not done so here.
Notwithstanding the Agency's contentions, while Complainant may not have established a prima facie case, we note that the Commission has the inherent power to protect its administrative processes from abuse by any party and must ensure that agencies and complainants follow its regulations. See Lomax v. Dep't of Veterans Affairs, EEOC Appeal No. 0720070039 (Oct. 2, 2007) (awarding complainant non-pecuniary compensatory damages without indicating whether the record supported a finding of discrimination after issuing a default judgment against the agency as a sanction for the agency's failure to conduct a timely investigation); Reading v. Dep't of Veterans Affairs, EEOC Appeal No. 07A40125 (Oct. 12, 2006) (awarding complainant non-pecuniary damages and equitable relief after default judgment). In Lomax we also ordered the agency to consider disciplining responsible management officials and issue a posting order.
We further note that in West v. Gibson, 527 U.S. 212 (1999), the Supreme Court noted "to deny that an EEOC compensatory damages award is, statutorily speaking, 'appropriate' would undermine this remedial scheme," a scheme which "encourag[es] quicker, less formal and less expensive resolution of disputes within the Federal Government and outside of court." West, 527 U.S. at 219. As such, we find that the Agency has not established that our previous decision involved a clearly erroneous interpretation of material fact or law. The Agency has also not established that our previous decision will have a substantial impact on the policies, practices, or operations of the Agency.
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. The decision in EEOC Appeal No. 0120080282 remains the Commission's 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 actions:
(1) The Agency shall submit to the Hearings Unit of the EEOC's Miami District Office the request for a hearing on Complainant's entitlement to compensatory damages and/or attorney's fees within fifteen (15) calendar days of the date this decision becomes final. The Agency is directed to submit a copy of the complaint file to the EEOC Hearings Unit within fifteen (15) calendar days of the date this decision becomes final. The Agency shall provide written notification to the Compliance Officer at the address set forth below that the complaint file has been transmitted to the Hearings Unit. Thereafter, an AJ that has not previously been assigned to this matter shall determine whether Complainant is entitled to compensatory damages, both pecuniary and non-pecuniary, and/or attorney's fees, consistent with this decision. The AJ shall issue a decision on the remedies awarded in accordance with 29 C.F.R. � 1614.109, and the Agency shall issue a final action in accordance with 29 C.F.R. � 1614.110.
(2) The Agency shall provide training to the EEO management officials regarding their responsibilities concerning case processing.
(3) 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).
(4) 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 evidence that all corrective action has been implemented.
POSTING ORDER (G0900)
The Agency is ordered to post at its National Detector Dog Training Center in Orlando, Florida 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.
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.
COMPLAINANTS 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
December 20, 2012
Date
2
0520120295
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0520120295