05A20606
05-13-2003
Ruth D. Williams, Complainant, v. Hector V. Barreto, Administrator, Small Business Administration, Agency.
Ruth D. Williams v. Small Business Administration
05A20606
05-13-03
.
Ruth D. Williams,
Complainant,
v.
Hector V. Barreto,
Administrator,
Small Business Administration,
Agency.
Request No. 05A20606
Appeal No. 01996635
Agency No. 01-97-585
DECISION ON REQUEST FOR RECONSIDERATION
On March 19, 2002, the Small Business Administration (agency) timely
initiated a request to the Equal Employment Opportunity Commission
(the Commission or EEOC) to reconsider the decision in Ruth D. Williams
v. Small Business Administration, EEOC Appeal No. 01996635 (January
30, 2002).<1> EEOC regulations provide that the Commissioners may,
in their discretion, reconsider any previous Commission decision.
29 C.F.R. � 1614.405(b). The party requesting reconsideration must
submit written argument or evidence which tends to establish one or
more of the following two criteria: the appellate decision involved a
clearly erroneous interpretation of material fact or law; or the decision
will have a substantial impact on the policies, practices or operations
of the agency. Id. For the reasons set forth herein, we issue this
decision in order to clarify a matter raised by the agency's request.
Complainant filed a complaint, Agency No. 01-97-585, in which she alleged
that the agency discriminated against her in retaliation for engaging
in prior EEO activity. On August 27, 1999, she filed a timely appeal
from the agency's June 30, 1997 final decision (FAD), which found
no discrimination. In EEOC Appeal No. 01996635, the Commission found
that complainant was discriminated against when: (1) she received a
lower performance rating than she deserved on November 5, 1996, and
consequently was denied monetary awards and/or performance awards for
fiscal year 1996; and (2) she was excluded from receiving an on-the-spot
cash award, which other team members received.
The Commission ordered various forms of relief, including changing
complainant's performance rating; expunging her previous performance
evaluation, as well as any records which made reference to any
disciplinary actions found to have been retaliatory, such as negative
performance memoranda; awarding complainant an on-the-spot award in the
same amount issued to the other employees; training for the Responsible
Management Official; posting of a notice; and conducting a supplemental
investigation on the issue of compensatory damages.
An investigation has revealed that, on October 28, 1999, complainant
submitted a two page statement, a copy of the June 30, 1997 FAD and a new
Notice of Appeal form. Due to a clerical error, complainant's submission
was erroneously docketed as a new appeal and was assigned the number
EEOC Appeal No. 01A00711. On March 9, 2000, EEOC Appeal No. 01A00711
was dismissed on the grounds that it was filed in an untimely manner.
This was due to the fact that it was submitted approximately four months
after the issuance of the final agency decision.
As noted above, on January 30, 2002, the Commission issued the decision
in EEOC Appeal No. 01996635. In a letter dated March 11, 2002, the agency
notified the Commission that there appeared to be duplicate appeals issued
in this matter. This letter was docketed as a request for reconsideration
of the decision issued in Appeal No. 01996635. Consequently, the
Commission must now clarify which decision is binding on the agency.
Complainant did not respond to the agency's request for reconsideration.
EEOC Regulation 29 C.F.R. � 1614.503(c) provides that on behalf of the
Commission, the Office of Federal Operations may, on its own motion or
in response to a petition for enforcement or in connection with a timely
request for reconsideration, issue a clarification of a prior decision.
After a careful review of the record, the Commission finds that based on
a clerical error, two decisions were issued on complainant's complaint.
We find that the decision issued by the Commission in EEOC Appeal
No. 01996635 (January 30, 2002), which found discrimination, is binding
on the agency, and is therefore the final decision of the Commission
inasmuch as the agency failed to submit any further arguments in its
request for reconsideration. This determination is based on the fact
that complainant's appeal in EEOC Appeal No. 01996635 was filed first.
Furthermore, absent a mistake by the Commission, EEOC Appeal No. 01A00711
should never have been docketed. Accordingly, EEOC Appeal No. 01A00711
is hereby VACATED. The agency is directed to comply with the ORDER set
forth in EEOC Appeal No. 01996635, as restated below. There is no further
right of administrative appeal on the decision of the Commission on this
request for reconsideration.
ORDER
The agency is ORDERED to take the following remedial action, within 60
calendar days unless otherwise specified:
1. The agency is directed to change complainant's performance rating for
the rating period October 1, 1995 through September 30, 1996 to Exceeds
Fully Successful;
2. The agency is directed to expunge complainant's previous performance
rating for the 1996 fiscal year and replace it with the one directed in
ORDER (1), as well any records which make reference to any disciplinary
actions found to have been retaliatory, such as negative performance
memoranda, etc;
3. The agency is directed to award complainant an on-the-spot award in
the same amount issued to the other employees on complainant's former
team. If different amounts were awarded, complainant's award will be
the average of the three other employee awards issued;
4. The agency is directed to provide EEO training for the Responsible
Management Official addressing her responsibilities with respect to
eliminating discrimination in the workplace with an emphasis on race
and the current state of law on employment discrimination.
5. The agency shall consider taking disciplinary action against
the management officials identified as being responsible for the
discrimination perpetrated against complainant. 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.
6. The agency shall take appropriate preventative steps to ensure that
no employee is subjected to reprisal;
7. The issues of compensatory damages, attorney's fees and costs
are REMANDED to the agency. The agency shall conduct a supplemental
investigation of the compensatory damages issue. If the complainant is
seeking attorney's fees she shall, through counsel, submit a request for
attorney's fees and costs in accordance with the Attorney's Fees paragraph
set forth below. No later than sixty (60) days after the agency's
receipt of the attorney's fees statement and supporting affidavit,
the agency shall issue a final agency decision addressing the issues
of attorney's fees, costs, and compensatory damages. The agency shall
submit a copy of the final decision to the Compliance Officer at the
address set forth below.
8. The agency shall post a notice on its premises as described below.
9. 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 complainant,
and the above referenced final decision, including evidence that the
corrective action has been implemented.
POSTING ORDER (G0900)
The agency is ordered to post at its Washington District Office 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 (R0900)
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 within ninety (90) calendar days from the date
that you receive this decision. 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 (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
____05-13-03______________
Date
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 (Title VII),
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 DISABILITY with respect to hiring, firing,
promotion, compensation, or other terms, conditions or privileges of
employment. The Small Business Administration, Washington District
Office confirms its commitment to comply with these statutory provisions.
The Small Business Administration, Washington District Office supports
and will comply with such Federal law and will not take action against
individuals because they have exercised their rights under law.
The Small Business Administration, Washington District Office was found
to have discriminated against an employee by retaliating against her
for engaging in EEO activity by lowering her performance appraisal
and denying her monetary awards. The Small Business Administration,
Washington District Office has been ordered to expunge her previous
performance evaluation and issue the employee a higher rating, award
the employee any monetary awards that are due, provide training to the
management officials involved, pay reasonable attorney's fees, and pay
compensatory damages if applicable. The Small Business Administration,
Washington District Office 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.
The Small Business Administration, Washington District Office 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
1The record indicates that the agency did not receive the previous
decision until February 25, 2002.