0520120244
11-09-2012
Vincent C. Duncan, Complainant, v. Tom Kilgore, President and Chief Executive Officer, Tennessee Valley Authority, Agency.
Vincent C. Duncan,
Complainant,
v.
Tom Kilgore,
President and Chief Executive Officer,
Tennessee Valley Authority,
Agency.
Request No. 0520120244
Appeal No. 0120100344
Agency No. 0420-2009040
DENIAL
The Agency timely requested reconsideration of the decision in Vincent C. Duncan v. Tennessee Valley Authority, EEOC Appeal No. 0120100344 (December 14, 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).
In our previous decision, we reversed the Agency's final decision. Specifically, we found that the Agency failed to properly amend Complainant's complaint to include his reassignment claim, and failed to properly investigate that claim. We noted that the record did not contain any documentation regarding the reassignment, including affidavits from management. We also found that Complainant was subjected to discrimination based on his race when he was not selected for the Maintenance Supervisor position. We noted that the Agency failed to rebut the inference of discrimination, which was created when Complainant established a prima facie case of race discrimination, by articulating a legitimate, nondiscriminatory reason for its actions. We noted that that Agency failed to articulate a specific, clear, and individualized explanation for Complainant's non-selection. We also declined to consider the Agency's January 8, 2010, brief pursuant to 29 C.F.R. � 1614.403(f), finding that it was untimely. We noted that the Agency filed its brief more than 60 days after receiving Complainant's appeal on November 3, 2009.
In its request to reconsider, the Agency asserts, in pertinent part, that it did not receive Complainant's appeal brief or motion to remand. The Agency asserts that the Commission failed to consider arguments contained in its appeal brief submitted on January 8, 2010. The Agency asserts that the Commission did not give it an opportunity to respond to Complainant's brief on appeal. The Agency asserts that it had no knowledge of an attorney representative for Complainant, or that Complainant had filed an appeal brief. The Agency asserts that it still has not received Complainant's appeal brief or his contemporaneous motion to remand for the preparation of the instant Request for Reconsideration.
We note that the Agency does not dispute that its brief was filed more than 60 days after receiving notice that Complainant had filed his appeal. A complainant is required to file any supporting brief within 30 days of filing his or her appeal. 29 C.F.R. � 1614.403(d). A responding agency is required to file its reply brief, if any, within 30 days of receipt of the complainant's brief. 29 C.F.R. � 1614.403(e). Even in the absence of any brief filed by Complainant, the Agency was required to file its brief, if it desired to file one, not later than 60 days after it received notice of the appeal. See id.
We note that a request for reconsideration is not a second form of appeal. E.g., Lopez v. Dep't of Agriculture, EEOC Request No. 0520070736 (Aug. 20, 2007); EEO Management Directive for Part 1614 (EEO MD-110), Chap. 9, �VII.A. (Nov. 9, 1999). The Agency asserts that Complainant failed to serve a copy of his appeal brief and motion to remand on the Agency pursuant to 29 C.F.R. � 1614.403(b). Because Complainant's statement on appeal and motion to remand speaks to matters addressed in the investigation and formal complaint, we are not persuaded that the Agency was prejudiced by its asserted non-receipt of Complainant's brief. See Scott v. Dep't of Transportation, EEOC Appeal No. 0120101582 (Aug. 25, 2010) (citing Holderman v. Dep't of Agriculture, EEOC Request No. 05930875 (June 2, 1994)).
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. 0120100344 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. Retaliatory Reassignment Claim
a. The Agency shall conduct a supplemental investigation and compile evidence regarding Complainant's reprisal claim. The Agency shall obtain all pertinent evidence needed to address Complainant's reprisal claim including, but not limited to, documents pertaining to the April 2009 reassignment and affidavits from Complainant and the responsible management official(s).
b. The Agency shall complete its supplemental investigation and issue a new final decision, together with the appropriate appeal rights, within ninety (90) calendar days of the date this decision becomes final, unless the matter is otherwise resolved prior to that time. A copy of the Agency's final decision must be sent to the Compliance Officer as referenced below.
2. Non-Selection Claim
Unless otherwise indicated, the Agency is ordered to take the following remedial action within sixty (60) days of the date this decision becomes final:
a. The Agency shall offer Complainant the position of Maintenance Supervisor, or a substantially equivalent position, at the Shawnee Fossil Plant in Paducah, Kentucky, retroactive to the date of his non-selection, in or about February 2009. Complainant shall have fifteen (15) 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 his rejection shall be the end date for any back pay due Complainant.
b. The Agency shall determine the appropriate amount of back pay, with interest, and other benefits due Complainant, pursuant to 29 C.F.R. � 1614.501, no later than sixty (60) calendar days after the date this decision becomes final. 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 within sixty (60) calendar days of the date the Agency determines the amount it believes to be due. 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."
c. The Agency shall conduct a supplemental investigation on compensatory damages, including providing Complainant an opportunity to submit evidence of pecuniary and non-pecuniary damages. For guidance on what evidence is necessary to prove pecuniary and non-pecuniary damages, the parties are directed to EEOC Enforcement Guidance: Compensatory and Punitive Damages Available Under � 102 of the Civil Rights Act of 1991 (July 14, 1992) (available at eeoc.gov.) The Agency shall complete the investigation and issue a final decision appealable to the EEOC determining the appropriate amount of damages within 150 calendar days after this decision becomes final.
d. The Agency shall provide eight (8) hours of EEO training to the responsible management officials regarding their responsibilities under EEO laws.
e. 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).
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 (G0610)
The Agency is ordered to post at its Shawnee Fossil Plant in Paducah, Kentucky 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 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 (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
November 9, 2012
Date
2
0520120244
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0520120244