05a40502
03-19-2004
Deborah J. (Smith) Bridgewater, Complainant, v. R.L. Brownlee, Acting Secretary, Department of the Army, Agency.
Deborah J. (Smith) Bridgewater v. Dept. of the Army
05A40502
March 19, 2004
.
Deborah J. (Smith) Bridgewater,<1>
Complainant,
v.
R.L. Brownlee,
Acting Secretary,
Department of the Army,
Agency.
Request No. 05A40502
Appeal No. 01A30147
Agency No. ANOMFO990350280
Hearing No. 204-99-5199X
DENIAL OF REQUEST FOR RECONSIDERATION
The complainant initiated a request to the Equal Employment Opportunity
Commission (EEOC or Commission) to reconsider the decision in Deborah
J. Smith v. Dept. of the Army, EEOC Appeal No. 01A30147 (January
14, 2004). 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).
By regulation, requests for reconsideration must be filed within thirty
(30) calendar days after the party receives the previous decision.
29 C.F.R. � 1614.405(b). A document is timely if it is received or
postmarked before the expiration of the applicable filing period or,
in the absence of a legible postmark, if it is received by mail within
five days of the expiration of the applicable filing period. 29 C.F.R. �
1614.604(b).
It is noted that the Commission's previous decision included a Certificate
of Mailing indicating that, for purposes of timeliness, the Commission
will presume that the decision was received within five (5) calendar days
of the date on which it was mailed, January 14, 2004. Complainant is
presumed to have received the previous decision no later than Tuesday,
January 20, 2004. As evidenced by the certificate of mailing signed
by the complainant as well as the postal meter mark, the request for
reconsideration was mailed on February 25, 2004, which was beyond the
30-day limit set by regulation. Complainant does not give any reason
for the delay.
For the foregoing reasons, the Complainant's request for
reconsideration is denied. The decision in EEOC Appeal No. 01A30147
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. The agency is directed to comply with the Order as
set forth below.
ORDER (C0900)
The agency is ordered to take the following remedial action, if it has
not already done so:
Within thirty (30) days of the date on which this decision becomes final,
the agency shall revise complainant's 1997-1998 performance appraisal
to reflect a �Level Two Successful� rating.
Within thirty (30) days of the date on which this decision becomes final,
the agency shall pay complainant $3,000 in compensatory damages.
The agency shall post a notice of the finding of discrimination as set
forth in the below-entitled paragraph, �Posting Order.�
If complainant has been represented by counsel, the agency shall pay
complainant's reasonable attorney's fees and costs in accordance with
the below-entitled paragraph, �Attorney's Fees.�
The agency shall provide EEO training to the agency official(s) found
to have discriminated against complainant with regard to her 1997-1998
performance appraisal, paying specific attention to the topic of
reprisal discrimination.
The agency shall consider taking disciplinary action against the
agency official(s) found to have discriminated against complainant
with regard to her 1997-1998 performance appraisal. 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 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 Military Entrance Processing Command,
Fort Knox, Kentucky 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
March 19, 2004
__________________
Date
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, as amended,
42 U.S.C. �2000e et seq., has occurred at this facility.
Federal law requires that there be no discrimination against any
employee or applicant for employment because of that person's RACE,
COLOR, RELIGION, SEX, NATIONAL ORIGIN, AGE, or PHYSICAL or MENTAL
DISABILITY with respect to hiring, firing, promotion, compensation,
or other terms, conditions, or privileges of employment.
The Department of the Army, Military Entrance Processing Command, Fort
Knox, Kentucky, supports and will comply with such Federal law and will
not take action against individuals because they have exercised their
rights under law.
The Department of the Army, Military Entrance Processing Command,
Fort Knox, Kentucky, has been found to have discriminated against the
individual affected by the Commission's finding. The Department of the
Army, Military Entrance Processing Command, Fort Knox, Kentucky, shall
revise the affected individual's performance appraisal, and shall pay
the affected individual's proven compensatory damages and reasonable
attorney's fees and costs. The Department of the Army, Military
Entrance Processing Command, Fort Knox, Kentucky, 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 and will not retaliate against employees
who file EEO complaints.
The Department of the Army, Military Entrance Processing Command, Fort
Knox, Kentucky, 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
1Complainant notes in her request that her new name is Deborah
J. Bridgewater.