05970471
02-03-1999
Beverly V. Barnes, Appellant, v. Donna E. Shalala, Secretary, Department of Health and Human Services, Agency.
Beverly V. Barnes v. Department of Health and Human Services
05970471
February 3, 1999
Beverly V. Barnes, )
Appellant, )
)
v. ) Request No. 05970471
) Appeal No. 01950758
Donna E. Shalala, ) Agency No. OS3-865-93
Secretary, )
Department of Health and )
Human Services, )
Agency. )
)
DECISION ON REQUEST FOR RECONSIDERATION
INTRODUCTION
On May 6, 1996, the Department of Health and Human Services, (hereinafter
referred to as the agency) timely initiated a request to the Equal
Employment Opportunity Commission (Commission) to reconsider the decision
in Beverly V. Barnes v. Donna E. Shalala, Secretary, Department of Health
and Human Services, EEOC Appeal No. 01950758 (April 18, 1996).<1> EEOC
Regulations provide that the Commissioners may, in their discretion,
reconsider any previous Commission decision. 29 C.F.R. �1614.407(a). The
party requesting reconsideration must submit written argument or evidence
that tends to establish one or more of the following three criteria: new
and material evidence is available that was not readily available when the
previous decision was issued, 29 C.F.R. �1614.407(c)(1); the previous
decision involved an erroneous interpretation of law, regulation,
or material fact, or a misapplication of established policy, 29
C.F.R. �1614.407(c)(2); and the decision is of such exceptional nature as
to have substantial precedential implications, 29 C.F.R. �1614.407(c)(3).
For the reasons set forth herein, the agency's request is denied. However,
the Commission exercises its discretion pursuant to 29 C.F.R. �1614.407(a)
to reconsider the previous decision on its own motion.
ISSUE PRESENTED
Whether the previous decision properly vacated the agency's final decision
finding no race, color or reprisal discrimination with regard to three
issues in appellant's complaint and whether the record presently supports
a determination on the merits thereon.
BACKGROUND
The previous decision accurately stated the procedural facts in this
matter and they will be repeated only as pertinent to our determination
below. That decision remanded appellant's complaint to the agency for a
supplemental investigation, finding that the agency had failed to provide
a copy of the full complaint file, including the investigative report,
notwithstanding at least two requests from OFO. The decision further noted
that the record did not contain a complete copy of appellant's complaint
and failed to indicate whether appellant had received a copy of the letter
from the agency informing her of the issues to be investigated. In light
of appellant's allegation on appeal that the agency failed to investigate
all of the issues raised in her complaint and the incomplete record then
forwarded to the Commission, the previous decision ordered the agency
to provide appellant with notification of the specific issues which it
accepted for investigation and the opportunity to respond to the notice.
The decision ordered the agency to, inter alia, insure that all of the
bases and issues raised by appellant were addressed in the supplemental
investigation. In its compliance report, the agency indicated that
the investigation of this matter had already been completed as of
February 28, 1994, and that appellant had previously received an
acceptance letter notifying her of the accepted issues and a letter
transmitting the investigative report to appellant with appropriate
hearing rights. The agency submitted copies of the investigative file
and the certified receipts for these letters, and asserted that the
issues remanded by the previous decision should be considered "closed"
by the Commission. On February 18, 1997, the OFO docketed this compliance
report as a request for reconsideration. In response to the agency's
request for reconsideration, appellant asserts that the "questions"
in her allegations remain the same.
The recently submitted investigative file on the subject issues
contains another copy of appellant's complaint with the same one page
description of the relief sought attached to it. No other attachments
are indicated. It also includes a copy of the agency's acceptance letter
which informed appellant that the agency had accepted the following
issues for investigation: (1) a March 4, 1993 letter of reprimand;
(2) appellant's July 27-29, 1993 suspension from her position as an
Office Automation Clerk; and (3) the agency's failure to afford her
appropriate recognition and compensation for a suggestion adopted by
agency management in September 1992.
ANALYSIS AND FINDINGS
After a careful review of the record, the Commission finds that the
agency's request for reconsideration fails to meet the criteria of 29
C.F.R. �1614.407(c)(1), in that the agency has not demonstrated that the
documentation it now presents with its request is new or was previously
unavailable. Nor has the agency adequately demonstrated that OFO had this
documentation before it at the time it rendered its previous decision. It
is therefore the decision of the Commission to deny the agency's request.
Notwithstanding our denial of the agency's request, however, we
exercise our discretion pursuant to 29 C.F.R. �1614.407(a) of our
regulations to reconsider the previous decision based upon our review
of the documentation submitted by the agency which indicates that the
three accepted allegations in appellant's complaint have already been
investigated and fully processed by the agency. Therefore, we will
reconsider the previous decision in order to address the merits of
appellant's appeal from the agency's final decision on these issues.<2>
Before we do so, however, we must address the agency's assertions
concerning the scope of the issues raised by appellant's complaint.
In this regard, we find that the agency's acceptance letter clearly
failed to advise appellant that any of the specific issues she raised
in her complaint were being rejected. While the agency faults appellant
for failing to raise additional issues in her investigative affidavit,
we observe that the agency failed to either reject these matters with
appropriate appeal rights or otherwise afford appellant an opportunity
to protest the agency's narrow characterization of the issues in its
acceptance letter. Moreover, we note that it remains unclear whether the
copy of the complaint found in the investigative file contains the entire
attachment referred to by appellant therein. Even the section contained in
the record makes reference to the agency's failure to promote appellant
to the GS-5 level through a desk audit of her position. Consequently,
we will order the agency to issue a final agency decision which accepts or
rejects all remaining issues raised in appellant's complaint, including,
but not limited to, this promotion issue.
Next, with regard to the merits of the three accepted and investigated
issues in appellant's complaint, for the purpose of our further analysis
herein, we will proceed as if appellant has established a prima facie
case of race, and color, discrimination on each incident alleged and
analyze whether she met her ultimate burden of proving discriminatory
animus. See United States Postal Service Board of Governors v. Aikens,
460 U.S. 711, 714-17 (1983).<3>
In this regard, the agency has articulated legitimate, nondiscriminatory
reasons for each of the subject actions taken which were adverse to
appellant. Specifically, with regard to the letter of reprimand,
appellant's supervisor averred that appellant refused to perform
photocopying work which was a part of her position description, and when
approached by her supervisor to perform the work, exhibited hostile
and inappropriate behavior. With regard to the three day suspension
appellant received from her GS-4 Automation Clerk position, appellant's
supervisor articulated that she issued it based on appellant's actions
in violating the Privacy Act by discussing with other employees private
information from the voluntary leave transfer program she had obtained
in the course of her duties.
With regard to allegation 3, appellant's failure to receive what she
deemed to be appropriate recognition and compensation for a suggestion
she made that agency management adopted in September 1992, the agency
articulated that a white employee appellant identified as receiving more
favorable treatment was given a Beneficial Suggestion Certificate from the
Assistant Secretary for Personnel Administration because her suggestion
had department wide impact. The agency afforded appellant a thank you
letter from the Regional Personnel Officer because her suggestion had only
regional impact. The agency further noted that appellant's suggestion,
unlike the comparative's, described a specific problem without providing
a suggested solution, and required another employee to write procedures
for implementation.
Appellant failed to prove that the agency's articulated reasons for
the aforementioned actions were pretexts for discrimination. See Texas
Department of Community Affairs v. Burdine, 450 U.S. 248 (1981). Appellant
generally alleged that her supervisor was racist and had proposed the
letter of reprimand and suspension against her based upon her race
and color, but failed to provide evidence to support her belief of
such motivation. She disputed the factual background concerning the
incident which precipitated the letter of reprimand, arguing that she
merely engaged in a "robust debate" with her supervisor in defense of
her health in that she had established that she was sensitive to dusty
atmospheres and the subject duties would have required exposure to such
allergens. The record, however, did not indicate that appellant had
previously submitted medical documentation to support this assertion or
had previously requested any such form of accommodation in her duties,
which required that she provide and compile data and materials for
supervisors' and specialists' needs. Moreover, two witnesses to the
incident at issue differed in their accounts of what occurred. Neither,
however, provided evidence of a racial motivation for the events.
With regard to the suspension, appellant failed to effectively
challenge the underlying facts connected with the Privacy Act violation
alleged. Moreover, the record corroborated that two coworkers had raised
concerns about appellant's requests to them to donate leave through
the leave transfer program. With regard to appellant's suggestion, she
offers no persuasive basis for her conclusion that it warranted the
certificate and cash award she sought. In any event, the record did
not reflect that cash awards were given for any suggestions accepted
during the time period in which appellant and the comparative raised
their ideas to agency management.
CONCLUSION
After a review of the agency's request for reconsideration, the previous
decision, and the entire record, the Commission finds that the agency's
request fails to meet the criteria of 29 C.F.R. �1614.407(c), and it
is the decision of the Commission to DENY this request. The Commission
exercises its discretion, however, pursuant to 29 C.F.R. �1614.407(a) to
reconsider the decision on its own motion. The decision of the Commission
in EEOC Appeal No. 01950758 (April 18, 1996) is VACATED in part and the
agency's final decision is AFFIRMED in part. The agency shall comply
with the Commission's modified Order set forth below. Since this is the
initial decision on the merits of allegations 1-3, reconsideration rights
are afforded on those issues only below. There is no further right of
administrative appeal from a decision of the Commission on a request to
reconsider.
ORDER
The agency shall conduct a supplemental investigation which shall include
the following actions:
(1) The agency shall provide appellant with a final agency decision
specifically accepting or rejecting the remainder of the issues raised
in appellant's complaint herein, including, but not limited to, her
allegation of denial of a promotion to the GS-5 level.
(2) The agency shall investigate and process all additional accepted
issues in accordance with 29 C.F.R. �1614.108 et seq.
To the extent that the agency accepts any additional issues for
investigation, within one-hundred and twenty (120) days of the date
this decision becomes final, the agency shall complete its investigation
and shall issue a copy of the investigative file along with appropriate
notices for further processing. If appellant requests a final decision
without a hearing, then the agency shall issue a final decision within
sixty (60) calendar days of receiving the Administrative Judge's
decision. A copy of the correspondence that transmits the report of
the investigation and notice of rights must be sent to the Compliance
Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0595)
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 appellant. If the agency does not comply with the Commission's
order, the appellant may petition the Commission for enforcement of
the order. 29 C.F.R. �1614.503 (a). The appellant 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. �� 1614.408, 1614.409, and 1614.503 (g). Alternatively,
the appellant 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. �� 1614.408 and 1614.409. 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 appellant files a civil action, the administrative processing of
the complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. �1614.410.
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and be submitted to the Director, Office of
Federal Operations, Equal Employment Opportunity Commission, P.O. Box
19848, Washington, D.C. 20036. In the absence of a legible postmark,
the request to reconsider shall be deemed filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and any supporting documentation must be submitted with your
request for reconsideration. The Commission will consider requests
for reconsideration filed after the deadline only in very limited
circumstances. See 29 C.F.R. �1614.604(c).
RIGHT TO FILE A CIVIL ACTION (Q0993)
This decision affirms the agency's final decision in part, but it also
requires the agency to continue its administrative processing of a
portion of your complaint. You have the right to file a civil action
in an appropriate United States District Court on both that portion of
your complaint which the Commission has affirmed AND that portion of the
complaint which has been remanded for continued administrative processing.
It is the position of the Commission that 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.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive this decision. To ensure that your civil action
is considered timely, you are advised to file it WITHIN THIRTY (30)
CALENDAR DAYS from the date that you receive this decision or to consult
an attorney concerning the applicable time period in the jurisdiction
in which your action would be filed. 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 (Z1092)
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:
February 3, 1999
Date Frances M. Hart
Executive Officer
Executive Secretariat
1 On this date, the agency filed a compliance report with the Commission's
Office of Federal Operations (OFO) in which it asserted that the previous
decision's order that the agency conduct a supplemental investigation
should not be enforced. We exercise our discretion to treat this document
as a timely filed request for reconsideration.
2 We note that the agency's documentation also indicates that the agency's
notice of investigation which provided hearing rights to appellant was
received at her address on June 9, 1994.
3 We find, however, that appellant failed to present a prima facie case
of reprisal discrimination with regard to these allegations in that she
alleged that the retaliation resulted from her participation in union and
mentoring activities and not from any prior protected EEO activity. See
Hochstadt v. Worcester Foundation for Experimental Biology, Inc., 425
F. Supp. 318, 324 (D. Mass.), aff'd., 545 F.2d 222 (1st Cir. 1976).