05A10038
04-26-2001
Herbert L. Aaron, Complainant, v. Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.
Herbert L. Aaron v. Department of Veterans Affairs
05A10038
04-26-01
.
Herbert L. Aaron,
Complainant,
v.
Anthony J. Principi,
Secretary,
Department of Veterans Affairs,
Agency.
Request No. 05A10038
Appeal No. 01A03556
Agency Nos. 98-3107
97-0366
97-1055
97-1782
97-2210
Hearing Nos. 100-99-7039X thru 100-99-7043X
GRANTING OF REQUEST FOR RECONSIDERATION
INTRODUCTION
The complainant initiated a request to the Equal Employment Opportunity
Commission (EEOC or Commission) to reconsider the decision in Herbert
L. Aaron v. Department of Veterans Affairs, EEOC Appeal No. 01A03556
(September 6, 2000). EEOC Regulations provide that the Commission may,
in its discretion, 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).
For the reasons set forth herein, complainant's request is GRANTED.
ISSUE PRESENTED
Whether the previous decision erred in finding that the agency did not
breach its July 15, 1999 settlement agreement with complainant.
BACKGROUND
Complainant and the agency entered into a settlement agreement, on July
15, 1999, that provided in pertinent part, that:
(3) the agency will change Complainant's 1995/1996 performance evaluation
from �Fully Successful to Highly Successful,� effective no later than 30
days from the date that the settlement agreement is signed by all parties.
By letter to the agency dated September 17, 1999, complainant alleged
that the agency was in breach of the settlement agreement, because it
had not complied with the above provision. Complainant did not specify
how the settlement agreement had been violated. In its FAD, the agency
concluded that it had not breached the settlement agreement because
it had changed the performance appraisal, as required. On appeal,
complainant indicated that the agency, in changing his overall rating,
had not complied with its performance rating procedures. He noted that:
management did not make any changes to his critical elements; management
did not document how he exceeded the fully successful level; management
did not provide him with a copy of the corrected rating; and management
did not process the change in the rating, i.e., issue a manual SF-50.
Complainant requested that the agency specifically implement its terms
or reinstate his prior complaint.
The previous decision found that the agency �technically complied� with
the settlement agreement because the record indicated that it changed
complainant's performance appraisal to "Highly Successful" as required
by the plain language of the settlement agreement. Noting that there
was nothing in the plain language of the settlement agreement that
required the agency to provide complainant with a copy of the corrected
appraisal, the previous decision also found that, to the extent it had
not already done so, the agency should provide complainant with a copy
of the corrected appraisal.
In his request to reconsider (RTR), complainant maintained that there was
no evidence that the agency complied with the above provision within the
30 days after the agreement was signed. Furthermore, he argued that the
phrase �changing a performance rating� had a precise and unambiguous
meaning that required compliance with agency policy and practice.
According to complainant, �[i]f the agency intended that changing my
performance appraisal meant merely making a notation on the rating form
rather than the common accepted meaning of this term, then the agency
should have included this in the settlement agreement.�
ANALYSIS AND FINDINGS
In order to merit the reconsideration of a prior Commission decision,
the requesting party must submit written argument or evidence which
tends to establish that at least one of the criteria of 29 C.F.R. �
1614.405(b) has been met. The Commission's scope of review on a request
for reconsideration is narrow. Lopez v. Department of the Air Force,
EEOC Request No. 05890749 (September 28, 1989). A reconsideration request
is not merely a form of a second appeal. Regensberg v. USPS, EEOC Request
No. 05900850 (September 7, 1990). After a careful review of the record,
the Commission finds that complainant's request meets the regulatory
criteria of 29 C.F.R. � 1614.405(b)(1). An examination of the Overall
Rating section of the appraisal form indicates that the only change that
was made was that the notation next to the term �Fully Successful� was
lined out and a notation was made next to the term �Highly Successful.�
Therefore, an observer would know that complainant first received a
rating of �Fully Successful,� and that, for some reason, it was changed.
Also, there were no changes made to the Actual Achievement section.
Consequently, an observer would note that complainant received ratings
of �Fully Successful�on two of his three critical elements.<1> We find
that there must be some correlation between the overall rating of �Highly
Successful,� and the ratings that complainant received on the majority
of his critical elements. Therefore, in order to be in compliance
with the settlement agreement, the agency would, at the very least,
have to change one or both of the ratings that complainant received on
his critical elements.<2> Accordingly, we find the agency violated both
the letter and the spirit of the settlement agreement by merely crossing
out �Fully Successful� and checking the area next to �Highly Successful.�
Upon a finding that the terms of a settlement agreement have been
violated, the complainant may request that the terms of the settlement
agreement be specifically implemented or request that the underlying
complaint(s) be reinstated for further processing from the point
processing ceased. See 29 C.F.R. � 1614.504(a). In the present case,
complainant did not specify a preference.<3> Therefore, we find that
because there is no dispute that the agency has complied with the other
provisions of the settlement agreement, i.e., providing complainant with
a two step increase to the grade of GS-13, Step 8, providing a check in
the amount of $24,000 for attorney fees and costs, restoring 200 hours
of sick leave, and increasing complainant's responsibilities at the
Patterson Clinic, we will order the agency to specifically implement
clause 3 of the settlement agreement in accordance with this decision.
CONCLUSION
After a review of the agency's request for reconsideration, the previous
decision, and the entire record, the Commission finds that complainant's
request meets the criteria of 29 C.F.R. � 1614.405(b), and it is the
decision of the Commission to GRANT the request. The decision of the
Commission in Appeal No. 01A03556 (September 6, 2000) and the agency's
final decision are REVERSED. The agency will comply with the Order below.
There is no further right of administrative appeal from a decision of
the Commission on a request to reconsider.
ORDER
The agency shall issue a new 1995/1996 performance evaluation in
accordance with this decision. Complainant's new performance evaluation
shall be at the �Highly Successful� level and shall be in compliance with
all applicable internal agency regulations and procedures. The agency
shall insure that it removes the former performance evaluation from all of
its records and shall substitute the new �Highly Successful� 1995/1996
performance evaluation. The agency shall provide a copy of the new
performance evaluation to the Compliance Officer referenced herein.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0900)
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 19848,
Washington, D.C. 20036. 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)(Supp. V 1993). 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.
STATEMENT OF RIGHTS
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (R0900)
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 (Z1199)
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 that the Court appoint
an attorney to represent you and that the Court 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 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:
______________________________
Frances M. Hart
Executive Officer
Executive Secretariat
____04-26-01__________________________
Date
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
______________________________
Date
______________________________
1Complainant received a rating of �Exceptional� on the third element.
2The instructions for the performance appraisal provide that:
�[a]ssignment of the exceptional level means that fully acceptable
performance standards have been significantly surpassed. This level is
reserved for employees whose performance in the element far exceeds normal
expectations and results in major contributions to the organization.�
Management officials are required to provide specific achievements for
each element where the employee's performance exceeds fully successful.
3Complainant, on several occasions in the record, stated that the agency
should correct his performance appraisal or reinstate the processing of
his complaint.