05980886
08-12-1999
Jacqueline Sherwood Appellant, Lawrence H. Summers, Secretary, Department of Treasury (Internal Revenue Service), Agency.
Jacqueline Sherwood v. Department of Treasury
05980886
August 12, 1999
Jacqueline Sherwood )
Appellant, )
)
) Request No. 05980886
) Appeal No. 01970047
Lawrence H. Summers, ) Agency No. 94-2145R
Secretary, )
Department of Treasury )
(Internal Revenue Service), )
Agency. )
______________________________)
DENIAL ON REQUEST FOR RECONSIDERATION
On June 23, 1998, the Department of Treasury (agency) timely initiated
a request to the Equal Employment Opportunity Commission (Commission)
to reconsider the decision in Jacqueline Sherwood v. Department of
Treasury, Internal Revenue Service, EEOC Appeal No. 01970047 (May
27, 1998). 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 which 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 misapplication
of established policy, 29 C.F.R. �1614.407(c)(2); and the previous
decision is of such exceptional nature as to have substantial precedential
implications, 29 C.F.R. �1614.407(c)(3). For the reasons stated below,
the agency's request is denied.
As set forth in the previous decision, appellant was employed as an
Employee Relations Assistant, GS-203-7, the agency's Labor Relations
Section, Personnel Branch, Resources Management Division. In 1988,
appellant was acting as a retirement coordinator and began to receive
additional duties. Thereafter, appellant sought a promotion and requested
a desk audit of duties in 1989, 1990, and 1991. The 1991 desk audit
of her duties was granted and the agency issued a report in September
of 1991 recommending that appellant's position receive a GS-8 grade.
Although appellant's supervisor (S1) prepared a memorandum to request the
upgrade, the request was never acted on. A series of delays occurred,
and appellant was continually told that the upgrade had not gone forward.
Ultimately, appellant was informed that budgetary constraints precluded
appellant's position from being upgraded.
Believing she was the victim of discrimination, appellant filed an EEO
complaint alleging that she was discriminated against on the bases of race
(Black), sex (female), and reprisal when the agency failed to upgrade
her position from GS-7 to GS-8. Following the procedural prerequisites,
which included a hearing, an EEOC administrative judge (AJ) issued
a twenty-seven page Recommended Decision (RD) finding discrimination
on all the bases alleged save reprisal. The AJ found that appellant
failed to establish a prima facie case of reprisal because she failed to
establish that she engaged in protected EEO activity. Nonetheless, the
AJ concluded that the record did not support the agency's articulated
legitimate nondiscriminatory reason for failing to timely upgrade
appellant's position after a desk audit of the position supported the
upgrade and appellant was advised that her position would be upgraded.
The agency stated that budgetary constraints precluded appellant's
position from being upgraded. The AJ noted, however, that contrary to
the agency's assertions that there were various budgetary freezes at
the time of appellant's requested upgrade, two supervisors (Caucasian)
were given grade increases from GS-12 to GS-13, and GS-13 to GS-14,
respectively, during the time in question. The AJ also noted that there
were significant contradictions in the testimony of agency officials with
regard to whether appellant's position would be upgraded. For instance,
the Chief of the Resources Management Division (C2) testified that the
Division Chief (C1) was against the upgrade. However, C1 testified
that she supported the upgrade. Following the hearing, the agency
issued a FAD adopting the AJ's decision with regard to reprisal and
rejecting the AJ's decision with regard to race and sex discrimination.
Appellant appealed and the previous decision affirmed the FAD with regard
to reprisal, and reversed with regards to race and sex discrimination.
The previous decision affirmed the AJ's finding that appellant met
her burden of establishing a prima facie case of discrimination in the
absence of named comparative employees. The previous decision noted
that under the circumstances of the case, appellant raised an inference
of discrimination, that in the absence of any legitimate explanation,
inferred discriminatory animus. See Furnco Construction Co. v. Waters,
438 U.S. 567, 576 (1978).
In this request for reconsideration, the agency raised many of the
same arguments previously raised and addressed on appeal. The only new
argument raised in this request is the agency's assertion that the AJ
erroneously concluded that the desk audit recommending that appellant's
position be upgraded raised a rebuttable presumption that the upgrade
should have occurred resulting in the AJ inverting the burden of proof
from appellant to the agency.
As discussed above, the Commission may, in its discretion, reconsider
any previous decision when the party requesting reconsideration
submits written argument or evidence which tends to establish that
any of the criteria of 29 C.F.R. �1614.407 are met. In order for a
case to be reconsidered, the request must contain specific information
which meets the requirements of this regulation. It should be noted
that the Commission's scope of review on a request to reconsider is
limited. Lopez v. Department of the Air Force, EEOC Request No. 05890749
(September 28, 1989). Furthermore, a request to reconsider is not
"a form of second appeal." Regensberg v. United States Postal Service,
EEOC Request No. 05900850 (September 7, 1990); Spence v. Department of the
Army, EEOC Request No. 05880475 (May 31, 1988). Instead, the request for
reconsideration is an opportunity for a party to submit newly discovered
evidence, not previously available; to establish substantive legal
error in a previous decision; or to explain how the previous decision
is of such an exceptional nature as to have effects beyond the case at
hand. Lyke v. United States Postal Service, EEOC Request No. 05900769
(September 27, 1990).
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. All of the agency's arguments raised in this
request were fully and correctly addressed by the previous decision
save the agency's assertion that the AJ inverted the burden of proof,
as alleged above. We find, however, that the AJ merely stated in dicta
that appellant's desk audit was probative of the fact that her promotion
was improperly withheld.
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 does not meet the criteria of 29 C.F.R. �1614.407(c), and it is
the decision of the Commission to DENY the agency's request. The decision
of the Commission in Appeal No. 01970047 remains the Commission's final
decision. The agency shall comply with the provisions of the Order set
forth below. There is no further right of administrative appeal from
the decision of the Commission on this request for reconsideration.
ORDER (D1092)
The agency is ORDERED to take the following remedial actions:
1. The agency shall take corrective, curative and preventive action to
ensure that discrimination based on race and sex does not recur, including
but not limited to providing training to the Responsible Official(s)
at the Internal Revenue Service, Labor Relations Section, Personnel
Branch, Resources Management Division, Atlanta, Georgia (hereinafter
"IRS Atlanta"), in the law against employment discrimination. Within
thirty (30) calendar days of the date the training is completed, the
agency shall submit to the Compliance Officer appropriate documentation
evidencing completion of such training.
2. The agency shall retroactively upgrade the appellant and determine the
appropriate amount of back pay (with interest) and other benefits due,
appellant, pursuant to 29 C.F.R. �1614.501, no later than sixty (60)
calendar days after the date this decision becomes final. The appellant
shall cooperate in the agency's efforts to compute the amount of back pay
and benefits due, and shall provide all relevant information requested by
the agency. If there is a dispute regarding the exact amount of back pay
and/or benefits, the agency shall issue a check to the appellant for the
undisputed amount within sixty (60) calendar days of the date the agency
determines the amount it believes to be due. The appellant may petition
for enforcement or clarification of this decision. The petition for
clarification or enforcement must be filed with the Compliance Officer,
at the address referenced in the statement entitled "Implementation of
the Commission's Decision."
3. 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 of the
agency's calculation of back pay and other benefits due appellant,
including evidence that the corrective action has been implemented.
POSTING ORDER (G1092)
The agency is ORDERED to post at its IRS Atlanta 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 insure 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 (H1092)
If appellant 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 (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.
RIGHT TO FILE A CIVIL ACTION (R0993)
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. 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:
Aug. 12, 1999
________________ __________________________________
Date Frances M. Hart
Executive Officer
Executive Secretariat
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, 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 the 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 Internal Revenue Service, Labor Relations Section, Personnel
Branch, Resources Management Division, Atlanta, Georgia (hereinafter
"IRS Atlanta"), supports and will comply with such Federal law and will
not take action against individuals because they have exercised their
rights under law.
The IRS Atlanta, has been found to have discriminated on the bases of race
and sex when an African-American female employee was not upgraded from a
GS-7 to a GS-8. The IRS Atlanta has been ordered to take corrective action
in the form of training for the responsible official(s), and retroactive
upgrade and back pay to the individual discriminated against. The IRS
Atlanta, 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 IRS Atlanta 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