05980336
11-17-2000
Jesse A. Edwards, Complainant, v. Bruce Babbitt, Secretary, Department of the Interior, Agency.
Jesse A. Edwards v. Department of the Interior
05989336
November 17, 2000
.
Jesse A. Edwards,
Complainant,
v.
Bruce Babbitt,
Secretary,
Department of the Interior,
Agency.
Request No. 05989336
Appeal No. 01955486
Agency No. LMS-93-050
DENIAL OF REQUEST FOR RECONSIDERATION
The complainant initiated a request to the Equal Employment Opportunity
Commission (EEOC or Commission) to reconsider the decision in Jesse
A. Edwards v. Department of the Interior, EEOC Appeal No. 01955486
(January 5, 1998).<1> 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 his original complaint, complainant alleged that he was discriminated
against on the bases of race (Black), age (born in 1929), physical
disability (hearing impairment), and reprisal (prior EEO activity) when
he was not selected, nor permitted to compete, for the positions of Deputy
Program Director for Indian Royalty Assistance (DPD), and Program Analysis
Officer (PAO). This was done by the Associate Director of the Royalty
Management Program (AD), who was the selecting official, utilizing the
management development program (MDP), under which complainant was not an
eligible candidate, rather than the competitive announcement procedure,
under which he would have been.
In his request to reconsider, complainant includes new and material
evidence which he contends was not readily available when the appeal
decision was issued, notably, an affidavit by a fellow employee which
alleges that there was no managerial emergency requiring the use of the
MDP procedure rather than the competitive announcement procedure for the
DPD position. The affidavit contends that the emergency was �contrived�
so that the AD could noncompetitively promote the candidate of his choice,
who was an MDP graduate, into the DPD position.
According to a prior Consent Decree entered into by complainant and
the agency, the agency was to competitively fill all higher graded
positions by the �full merit selection process� except, among other cases,
�emergency situations as determined by the Associate Director of Royalty
Management, acting in good faith.� The relevant emergency situation
was the determination by the AD of mismanagement by the Program Director
(PD), Office of Indian Royalty Assistance, and his improper treatment
of subordinate employees. His proposed solution was to restructure the
Office so that the PD would continue to provide general oversight of the
Office activities but have no direct subordinates other than the DPD,
who would be responsible for day-to-day management. Since the AD found
that the acting DPD to be weak in management skills, however, he arranged
to have his original position as an senior staff auditor eliminated,
thus forcing him to either retire or be transferred. The AD then chose
his preferred candidate, who was a trained facilitator with excellent
proven skills in process consultation, to be the new DPD.
As evidence that the management emergency was contrived by the AD,
who was not acting in good faith as required by the Consent Decree,
the affidavit points out that after the AD's candidate was placed in
the DPD position effective April 4, 1993, the PD continued to be the
first-level supervisor to all subordinate supervisors in the Office,
not allowing the new DPD any of these duties until the PD left the
Office in mid-1994. This happened despite the fact that the AD had
written in the new DPD position description that �[t]he incumbent is
the first-level supervisor over the subordinate supervisors in the
OIRA.� In addition, the affidavit proffers as evidence that there was
no management emergency requiring the swift noncompetitive approval of
a new DPD of proven competence the fact that the ST went on a two-week
vacation less than 90 days after he was noncompetitively promoted.
The Commission finds conclusive evidence that a management emergency
did exist, however, from the objective report of the organizational
psychologist hired by the AD to assess the situation. She found that
�[t]he chaotic and disruptive and disruptive work environment� at the
Office was �primarily� the result of the management style of the PD.
While this finding pointed to the need to replace the PD, the AD credibly
testified that approvals for such a change would have taken months
to accomplish, since it would have required action at the most senior
levels of the agency. A quick remedy was available, however, by simply
replacing the acting DPD with a person of proven interpersonal skills and
management ability to be placed as a buffer between the PD and the staff.
Such a person would be readily available from the list of MDP graduates.
As to the affidavit's contention that the so-called �acting� DPD was
actually in a permanent position, and that his removal was additional
evidence that the management emergency was contrived, we note that if
his position were indeed permanent, he could not have been removed
by abolishing his former position of senior staff auditor, which
is what actually happened. Furthermore, while the psychologist did
not make any reference to his weak management skills in her report,
the affidavit provides no positive evidence that the acting DPD was,
in fact, satisfactorily performing his supervisory duties such that his
removal would be unjustified.
As to the fact that when the new DPD was moved into the position, the PD
did not permit him to be the first-level supervisor of all subordinate
employees, as intended by the AD, we do not see this as additional
evidence that the management emergency was contrived, for the following
reason: The AD had testified in District Court in connection with a
civil suit by the author of the affidavit that although the normal
role of the DPD was not to be a supervisor, he had hoped that the PD
would allow the DPD to supervise the direct reports to the Office.
When the PD chose not to do so, he was sent off on a 30-day detail for
a�cooling-off� period, which allowed the new DPD to provide the needed
buffer between the PD and the staff. In this regard, the new DPD provided
a communication link so some of the staff, who would not work directly
with the PD, could get needed direction and work assignments, and so
greatly reduced the tension that had existed in the Office. We note
that this was accomplished before the new DPD went off on his vacation,
which the affidavit proffered as additional evidence of pretext.
After a review of the complainant's request for reconsideration, the
previous decision, and the entire record, the Commission therefore 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. 01955486 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.
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
November 17, 2000
Date
1On 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 29 C.F.R. Part 1614 in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.