05A30835
08-28-2003
Barbara A. Kinnard, Complainant, v. Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.
Barbara A. Kinnard v. Department of Veterans Affairs
05A30835
August 28, 2003
.
Barbara A. Kinnard,
Complainant,
v.
Anthony J. Principi,
Secretary,
Department of Veterans Affairs,
Agency.
Request No. 05A30835
Appeal No. 01A04694
Agency Nos. 98-3334
99-1243
DENIAL OF REQUEST FOR RECONSIDERATION
The Department of Veterans Affairs (agency) timely initiated a request
to the Equal Employment Opportunity Commission (EEOC or Commission)
to reconsider the decision in Barbara A. Kinnard v. Department
of Veterans Affairs, EEOC Appeal No. 01A04696 (April 29, 2003).
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).
After a review of the agency's request for reconsideration, 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. 01A04696 remains the Commission's final decision.
There is no further right of administrative appeal on the decision of
the Commission on this request for reconsideration.
ORDER (C0900)
The agency is ordered to take the following remedial action:
The agency is directed to either transfer complainant out of Laboratory
Service, if it has not already granted her request for reassignment to a
position of equivalent rank in the same facility, or to take appropriate,
effective steps to have the harassing retaliation stop against her in her
current position, by removing her from the supervision of RMO1 and RMO2.
Within fifteen (15) calendar days of the date this decision becomes
final, the agency shall give complainant a notice of her right to submit
objective evidence in support of any claim for compensatory damages
within forty-five (45) calendar days of the date complainant receives
the agency's notice. The agency shall complete the investigation on the
claim for compensatory damages within forty-five (45) calendar days
of the date the agency receives complainant's claim for compensatory
damages. Thereafter, the agency shall process the claim in accordance
with 29 C.F.R. 1614.108(f).
The agency shall take corrective, curative and preventive action to
ensure that reprisal discrimination does not recur, including but not
limited to providing training to the responsible officials as to the
current state of the law on employment discrimination and retaliation
The agency shall address the managers' responsibilities with respect to
eliminating discrimination in the workplace.
The agency is directed to purge from her records any and all negative
references entered regarding the leave requests which were the subject
of this appeal and to restore the leave hours claimed (credit her with
the leave hours) for the period January 1, 1997 to December 31, 1998.
The agency shall provide complainant with reasonable attorney's fees
and costs, as noted below.
The agency is directed to consider not having the responsible management
official serve as an EEO Counselor for any other reprisal claims.
The agency should consider taking disciplinary action against the RMOs
if still employed with VA, who were identified as being responsible
for the discriminatory actions against complainant. The agency shall
report its decision. 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.
The agency shall post the notice as referenced below.
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 (G0900)
The agency is ordered to post at its Nashville facility 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 (H0900)
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 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 (K0501)
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)
(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 (P0900)
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 (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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
August 28, 2003
__________________
Date
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
An agency of the United States Government
This Notice is posted pursuant to an Order by the United States Equal
Employment Opportunity Commission, dated , which found that a violation
of Title VII of the Civil Rights Act of 1964 (Title VII), as amended,
42 U.S.C. 2000e et seq. has occurred at this facility or with regard to
an employee who has been employed at this facility.
Federal law requires that there be no discrimination against any employee
or applicant for employment because of the person's RACE, COLOR, RELIGION,
SEX, NATIONAL ORIGIN, AGE, or DISABILITY with respect to hiring, firing,
promotion, compensation, or other terms, conditions or privileges of
employment.
The United States Department of Veterans Affairs, at its VA Medical Center
in Nashville, Tennessee, supports and will comply with such Federal law
and will not take action against individuals because they have exercised
their rights under law or offered evidence in support of such individuals.
The VA Medical Center in Nashville, Tennessee was found to have violated
Title VII when it retaliated against an employee, with respect to her
leave requests in reprisal for her prior EEO activity. The VA Medical
Center has been ordered to remedy the employee affected. As a remedy
for the discrimination, the agency was ordered, among other things, to
(1) take appropriate steps to ensure that retaliation ceases; (2) award
complainant proven compensatory damages and reasonable attorney's fees, if
applicable; and (3) post this notice. In addition, the VA Medical Center
was ordered to submit a compliance report to the Commission verifying the
completion of all ordered corrective action. The Department of Veterans
Affairs will ensure that officials responsible for personnel decisions
and terms and conditions of employment will abide by the requirements
of all Federal equal employment opportunity laws.
The VA Medical Center will not in any manner restrain, interfere, coerce,
or retaliate against any individual who exercises his or her right to
oppose practices made unlawful by, or who participates in proceedings
pursuant to, Federal equal employment opportunity law.
________________________
Date Posted: ________________
Posting Expires: _____________
29 C.F.R. Part 1614