05a00001
04-28-2000
Catherine M. Wine, Complainant, v. Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.
Catherine M. Wine v. Department of Veterans Affairs
05A00001
April 28, 2000
Catherine M. Wine, )
Complainant, ) Request No. 05A00001
)
v. ) Appeal No. 01972814
)
Togo D. West, Jr., ) Agency No. 95-0072
Secretary, )
Department of Veterans Affairs, )
Agency. )
________________________________)
DECISION ON REQUEST FOR RECONSIDERATION
On September 21, 1999, the Department of Veterans Affairs (agency) timely
initiated a request to the Equal Employment Opportunity Commission (the
Commission) to reconsider the decision in Catherine M. Wine v. Department
of Veterans Affairs, EEOC Appeal No. 01972814 (August 20, 1999).<1>
EEOC regulations provide that the Commission may, in its discretion,
reconsider any previous Commission decision. 64 Fed. Reg. 37,644, 37,659
(1999)(to be codified and hereinafter referred to as EEOC Regulation 29
C.F.R. � 1614.405(b)). The party requesting reconsideration must submit
written argument or evidence which tends to establish one or more of
the following two criteria: the appellate decision involved a clearly
erroneous interpretation of material fact or law; or the decision will
have a substantial impact on the policies, practices or operations of
the agency. Id. For the reasons set forth herein, complainant's request
is granted.
In the previous decision, the Commission complainant was discriminated
against on the basis of race (Black) when management attempted to reassign
her and then later rescinded the reassignment and instead removed three
wards from her supervision. On request for reconsideration, the agency
claims that a September 28, 1995 Special Inquiry Report (report) from the
agency's Office of Inspector General constitutes new and material evidence
in support of the agency's demotion of complainant. The agency states
that the report confirms management's concern regarding complainant's
managerial filings and that it is critical that management retain ability
to intervene and response when a supervisor fails to appropriately apply
her managerial responsibilities. In response, complainant points out
that the report did not exist when the discriminatory acts occurred.
Complainant further states that the September 28, 1995 report was
not listed among the evidence submitted in the agency's July 2, 1996
pre-hearing submission or relied upon by the agency in rendering its
November 27, 1996 final decision.
After a review of complainant's request for reconsideration, the previous
decision, and the entire record, the Commission finds that complainant's
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 agency's request. While the
agency contends that the report supports complainant's demotion, we find
that the agency never prior to filing this request for reconsideration
ever stated that incidents addressed in the report were part of its reason
in demoting complainant. In its November 27, 1996 final decision, the
agency points to specific incidents as the basis for its actions. Never
did the agency indicate that the incidents described in the report were
considered in its decision to demote complainant. Further, we note that
the incidents referred to in the report occurred while complainant was in
a different position and prior to the discriminating official's arrival
at the facility. As a result, the decision of the Commission in Appeal
No. 01972814 (August 20, 1999) remains the Commission's final decision.
The agency is ordered to comply with the order in that decision, as
duplicated below. There is no further right of administrative appeal
on the decision of the Commission on this request for reconsideration.
ORDER
The agency is ordered to take the following remedial actions:
(1) The agency shall place complainant in her original position with
the same areas of responsibility.
(2) The agency shall conduct a supplemental investigation on the issue
of complainant's entitlement to compensatory damages, and provide her
with an opportunity to develop the record with respect to this claim.
See West v. Gibson, 527 U.S. 212 (1999). Specifically, she shall be
afforded an opportunity to establish a causal relationship between the
discrimination and any pecuniary or non-pecuniary losses. Thereafter, the
agency shall issue a final decision on the amount of compensatory damages
owed to complainant, if any. 29 C.F.R. �1614.110. The supplemental
investigation and issuance of the final decision must be completed
within 120 calendar days of the date this decision becomes final. A
copy of the final decision must be submitted to the Compliance Officer,
as referenced below.
(3) The agency shall conduct EEO training for the responsible management
officials at the Harry S. Truman Memorial Veterans Hospital with respect
to eliminating discrimination in the Federal workplace.
(5) 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 evidence that the corrective action
has been implemented.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K1199)
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 64
Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter
referred to as 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 64 Fed. Reg. 37,644, 37,659 (1999)
(to be codified and hereinafter referred to as 29 C.F.R. � 1614.409).
POSTING ORDER (G1092)
The agency is ORDERED to post at its Harry S. Truman Memorial Veterans
Hospital 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 (H1199)
If complainant has been represented by an attorney (as defined by 64
Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter
referred to as 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.
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (R0400)
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:
April 28, 2000
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
1 On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply to all
federal sector EEO complaints pending at any stage in the administrative
process. Consequently, the Commission will apply the revised regulations
found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.