05A40882
07-21-2004
George Watson, Complainant, v. Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.
George Watson v. Department of Veterans Affairs
05A40882
July 21, 2004
.
George Watson,
Complainant,
v.
Anthony J. Principi,
Secretary,
Department of Veterans Affairs,
Agency.
Request No. 05A40882
Appeal No. 01A33053
Agency No. 200H-0620-2002100516
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 George Watson v. Department of Veterans
Affairs, EEOC Appeal No. 01A33053 (April 28, 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).
In its request for reconsideration, the agency disputes the order
to reassign the managers found to have harassed complainant from
complainant's chain of command. The agency contends that for the
Commission to usurp the agency's discretion in choosing among various
effective corrective actions would be both clearly erroneous and would
have a substantial impact on the policies, practices or operations of
the agency. We remind the agency, however, that remedial measures
should not adversely affect the complainant. See EEOC Enforcement
Guidance on Vicarious Employer Liability for Unlawful Harassment by
Supervisors, No. 915.002, at 28-9 (June 18, 1999) (�[I]f it is necessary
to separate the parties, then the harasser should be transferred (unless
the complainant prefers otherwise). Remedial responses that penalize the
complainant could constitute unlawful retaliation and are not effective
in correcting the harassment.�).
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. 01A33053 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 Commission directs the agency
to take corrective action in accordance with this decision and the
Order below.
ORDER
The agency is ORDERED to take the following remedial actions:
1. No later than thirty (30) calendar days after the date this decision
becomes final, the agency shall reassign the managers found to have
harassed complainant from complainant's chain of command. Only upon
complainant's specific request, should complainant be the employee who
is reassigned. Complainant should not be involuntarily transferred.
2. No later than sixty (60) calendar days after the date this
decision becomes final, the agency is directed to provide training
to the supervisors responsible for the harassment. The agency shall
address these supervisors' responsibilities with respect to prohibiting
and refraining from harassment in the workplace and with respect to
preserving the integrity of the EEO process. Each supervisor shall
receive a minimum of eight (8) hours of EEO training with respect to
their obligations under the statutes enforced by this Commission with
special emphasis on Title VII.
3. No later than sixty (60) calendar days after the date this decision
becomes final, the agency shall review the matter giving rise to this
complaint and determine whether disciplinary action against any of the
responsible individuals discussed herein is appropriate. The agency
shall record the basis for its decision to take or not to take such
actions, and report the same to the Commission in the same manner that
the implementation of the rest of the order is reported.
4. No later than sixty (60) calendar days after the date this decision
becomes final, the agency shall remove the letters of warning issued
between September and November 2001 and any reference to them from
complainant's official personnel file.
5. The agency shall conduct a supplemental investigation on the issue
of complainant's entitlement to compensatory damages and shall afford
complainant an opportunity to establish a casual relationship between the
harassment and any pecuniary or non-pecuniary losses. Complainant shall
cooperate in the agency's efforts to compute the amount of compensatory
damages, and shall provide all relevant information requested by the
agency. The agency shall afford complainant sixty (60) days to submit
evidence in support of his claim for compensatory damages. The agency
shall issue a final decision on the issue of compensatory damages.
29 C.F.R. � 1614.110.
POSTING ORDER (G0900)
The agency is ordered to post at its Hudson Valley Health Care System,
Montrose, New York 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
July 21, 2004
__________________
Date