0420110015
03-05-2012
Arthur J. Morris, Petitioner, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Arthur J. Morris,
Petitioner,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Petition No. 0420110015
Appeal No. 0120100282
Agency No. 200P-X002-2008103602 et al.
DECISION ON A PETITION FOR ENFORCEMENT
On both October 4, 2011 and December 12, 2011, the Equal Employment
Opportunity Commission (EEOC or Commission) docketed Petitioner’s
petitions for enforcement to examine the enforcement of an Order set
forth in Arthur J. Morris v. Department of Veterans Affairs, Appeal
No. 0120100282 (March 31, 2010). The Commission accepts the petitions
for enforcement pursuant to 29 C.F.R. § 1614.503. Petitioner alleged
that the Agency failed to fully comply with the above order.
BACKGROUND
On August 8, 2009, the parties entered into a settlement agreement
agreeing, in relevant part, that:
Within 60 days after the execution of this agreement, the agency shall
modify the complainant’s official personnel file by upgrading the
complainant’s most recent performance appraisal to reflect a rating
of “outstanding” rather than “excellent”; removing attached
documentation; and removing the following language from the narrative
portion of the appraisal: [two paragraphs followed of language critical
of complainant for not following the chain of command in emails, being
inconsistent in responding to customer inquiries, and being occasionally
discourteous in responses to his supervisor].
Petitioner filed an appeal claiming, in relevant part, that the Agency
breached the above portion of the settlement agreement. In Appeal
No. 0120100282, the Commission agreed, and ordered that the Agency take
the following actions:
The agency [sic.] remove the original and modified appraisal from
complainant’s OPF covering the period of October 1, 2007 to September
30, 2008. It shall replace it with a new backdated appraisal reflecting
a rating of outstanding, without markings indicating it was previously
rated as excellent. The agency shall mark the achievement levels of
all four appraisal elements as exceptional. In the narrative portion
of the appraisal, the agency shall change the achievement levels of the
elements “Oral and Written Communication” and “Provides Direct
Customer/Patient to exceptional, and change the corresponding narrative
to support the exceptional level. The agency shall not check the box
by the higher level reviewing official indicating he does not concur
with the rating or contain [sic.] with a corresponding remark, nor
indicate any basis for the performance rating change in the appraisal.
The agency shall provide complainant an opportunity to sign for receipt
of the appraisal and to backdate his signature. The agency shall complete
this action within 60 calendar days after this decision becomes final.
Enforcement of the order was assigned to an EEOC Compliance Officer and
docketed as Compliance No. 0620100370. The Agency later sent a compliance
report to the Commission. It contained a copy of the new backdated
appraisal for the period of October 1, 2007 to September 30, 2008,
and correspondence. Specifically, on May 7, 2010, an Agency activity
wrote a Supervisory Human Resource Specialist requesting that she replace
the existing appraisal in the hardcopy and electronic OPF with the new
backdated appraisal. The activity wrote that there apparently was a
written annotation in the OPF to the effect that a modified appraisal
replaced the original one, to be sure all copies and references that were
in the OPF be removed, and only the new backdated appraisal be in the OPF.
On May 18, 2010, the Supervisory Human Resources Specialist replied that
she deleted the performance appraisal covering the period of October
1, 2007 to September 30, 2008, from Complainant’s electronic OPF,
and the substitute appraisal was in the process of being added to the
electronic OPF. She wrote that the electronic OPF is now the Official
Personnel Folder.
On June 17, 2010, the Agency Director of the VA Medical Center in
White City, Oregon, wrote that the new appraisal was scanned into
Complainant’s electronic OPF and placed in the hard copy OPF, and the
previous one was removed from Complainant’s hard copy and official
electronic OPF. On June 18, 2010, an Agency Compliance Officer with its
Office of Resolution Management wrote Complainant that the Agency complied
with the Commission’s order. Enclosing a copy of the new backdated
appraisal and the Director’s June 17, 2010 letter, the Agency Compliance
Officer wrote that the Director certified that the original and modified
appraisals were removed from Complainant’s hardcopy and electronic OPFs.
Complainant filed a petition for enforcement with the Commission dated
August 14, 2010, arguing that the Director’s June 17, 2010, letter
shows the Agency did not comply with the Commission’s order because
it indicated one previous performance appraisal was removed, when there
were two (the original and modified appraisals). He asked about the
existence of any hardcopy OPF, and wanted access to it so he could verify
that the Commission’s order had also been applied to the hardcopy OPF.1
On September 13, 2010, the Agency responded that it appeared Complainant
was concerned about whether the required changes were made to a
hardcopy OPF. It conceded that the compliance report contained erroneous
information that both the hardcopy and electronic versions of the OPF had
been modified. The Agency wrote that it investigated Complainant’s
concern, and learned that on October 15, 2008, the Agency converted
from paper OPFs to digital OPFs, and the paper file was retired to the
National Archives and Records Service (NARA). It wrote that the paper
copy is no longer the OPF, and the only official personnel file is the
electronic OPF.
In support of this, the Agency supplied a September 8, 2010, email by
the above referenced Supervisory Human Resources Specialist that once
the hardcopies are converted into the electronic OPF, the hardcopy is
no longer the official documents of the employee, and the electronic
OPF contains the official documents. The Agency also submitted the
September 8, 2010, email of an Acting Human Resources Manager confirming
the Supervisory Human Resources Specialist’s information, and adding
that once the paper documents were converted to the digital format, the
electronic OPF became the official record. She wrote that the paper
record was retired to NARA, and is a dead record. She wrote that the
digital version is the official for all federal employment and benefits
purposes. The Agency wrote that it made no changes to the hard copy,
which had been retired to NARA.
Complainant filed a second petition for enforcement dated November 13,
2010. He argues that the settlement agreement mandated that the required
changes be made to all records and files, both electronic and hardcopy,
and compliance with the Commission’s order applies to any and all OPFs
and any other Agency records and files.
ANALYSIS AND FINDINGS
As an initial matter, the Commission’s order in EEOC Appeal
No. 0120100282, consistent with the language in the settlement agreement,
directed the Agency to make required changes regarding the insertion of
the new backdated appraisal and the deletion of the prior original and
modified appraisals covering the same period from Complainant’s OPF,
not to any other files or records. That order is final, and we decline
to expand it to include files or records outside the OPF.
Agency human resource officials explained that while there was once a
hardcopy OPF, it was converted to an electronic OPF. They indicated that
once the hardcopy was converted to the digital format, the electronic
OPF became the official record and the paper record was retired to
NARA, and became a dead record. Together, their statements indicated
that the digital version is the official for all federal employment
and benefits purposes, and is the only OPF. Given that these Agency
officials were a Supervisory Human Resources Specialist and an Acting
Human Resources Manager, people likely to be in a position to know, we
find their representations are credible. Accordingly, the portion of
the Commission’s order at issue here only applies to Complainant’s
electronic OPF.
Complainant contends that a close reading of Director’s June 17, 2010,
letter, upon which the Compliance Report relies, does not verify that the
Agency actually deleted both the original and modified OPF. While it is
likely both these versions of the appraisal were deleted, there is still
some doubt. Accordingly, the Agency shall comply with the order below.
ORDER
To the extent it has not already done so, the Agency shall delete from
Complainant’s electronic OPF the original and modified appraisal
covering the period of October 1, 2007 to September 30, 2008 (the new
backdated appraisal for this time period, referenced in this decision,
shall remain in the OPF). The Agency shall complete this action within
30 calendar days after this decision becomes final.
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 of the
action ordered above, and be copied with all attachments to Petitioner
and his representative.
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 (S0610)
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. If you file a request to reconsider and also file a
civil action, 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
March 5, 2012
__________________
Date
1 Complainant also contended that the Agency Compliance Officer’s June
18, 2008, package to him only contained three of the six narrative pages
of the backdated new appraisal, and this showed the Agency did not comply
with the Commission’s order. The Compliance report the Agency sent to
the Commission contained a copy of the appraisal with all six narrative
pages, and Complainant’s correspondence shows at some point he received
all six pages. Complainant does not argue that the electronic OPF does
not contain the entire backdated new appraisal. His argument that the
Agency violated the Commission’s order, as demonstrated by at one
point sending him an incomplete version thereof, is not persuasive.
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0420110015
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0420110015