05A30794
07-16-2003
Ronald L. Porter, Complainant, v. Hansford T. Johnson, Acting Secretary, Department of the Navy, Agency.
Ronald L. Porter v. Department of the Navy
05A30794
July 16, 2003
.
Ronald L. Porter,
Complainant,
v.
Hansford T. Johnson,
Acting Secretary,
Department of the Navy,
Agency.
Request No. 05A30794
Appeal No. 07A20080
Agency No. 9360530015
Hearing No. 340-97-3900X
DENIAL OF REQUEST FOR RECONSIDERATION
Ronald L. Porter (complainant) timely initiated a request to the Equal
Employment Opportunity Commission (EEOC or Commission) to reconsider
the decision in Ronald L. Porter v. Department of the Navy, EEOC Appeal
No. 07A20080 (April 24, 2003). 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). However, we remind complainant that a �request
for reconsideration is not a second appeal to the Commission.� Equal
Employment Opportunity Management Directive for 29 C.F.R. Part 1614
(rev. Nov. 9, 1999), at 9-17. In his request for reconsideration,
complainant, through his attorney, alleges that the Commission's decision
should provide him with additional damages and corrective action, some
of which he requests for the first time.
This Commission carefully considered all of the record evidence at the
time it rendered the initial decision in question, and complainant
has offered no persuasive reason why this decision should be
reconsidered now. Therefore, after a review of complainant'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. 07A20080
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.<1>
ORDER
To the extent that it has not already done so, the agency is ordered to
undertake the following remedial action:
The agency shall rewrite complainant's narrative that accompanied his
less than fully successful performance rating; if that is not possible
because of the lengthy time period involved, the agency shall delete
the negative language therein that was offered as justification for
the less than fully successful rating;
2. The agency shall pursue corrective action, including but not limited
to, appropriate EEO training with the discriminating officials found
at fault herein;
The agency shall review its performance appraisal process, and shall
take whatever steps may be deemed appropriate to prevent the recurrence
of retaliatory treatment during the process, e.g., take steps to ensure
that vague evaluation criteria are not used in performance plans and
performance feedback sessions, and that performance feedback consists
of specific details on how an employee can perform his/her job to
meet expectations.
The agency shall consider taking appropriate disciplinary action
against the responsible management officials. The Commission does not
consider training to be disciplinary action. The agency shall report
its decision to the compliance officer. 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. If any of the responsible
management officials have left the agency's employ, the agency shall
furnish documentation of their departure date(s).
POSTING ORDER (G0900)
The agency is ordered to post at its China Lake, California 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 16, 2003
__________________
Date
1 Complainant also alleges
that, in several ways, the agency has not complied with the order in
Ronald L. Porter v. Department of the Navy, EEOC Appeal No. 07A20080
(April 24, 2003). As clearly stated in our order, if the agency fails
to comply with the Commission's order, complainant may petition the
Commission for enforcement of the order. 29 C.F.R. � 1614.503(a).
We additionally draw complainant's attention to the Commission's order,
which specifically describes the procedures to be followed by complainant
if he wishes to recover fees incurred in the processing of the complaint.
29 C.F.R. � 1614.501(e).