04A20015
05-13-2003
Ruth D. Williams, Petitioner, v. Hector V. Barreto, Administrator, Small Business Administration, Agency.
Ruth D. Williams v. Small Business Administration
04A20015
05-13-03
.
Ruth D. Williams,
Petitioner,
v.
Hector V. Barreto,
Administrator,
Small Business Administration,
Agency.
Petition No. 04A20015
Appeal No. 01996635
Agency No. 01-97-585
DECISION ON A PETITION FOR ENFORCEMENT
On March 22, 2002, the Equal Employment Opportunity Commission (EEOC or
Commission) docketed a petition for enforcement of the order set forth
in Ruth D. Williams v. Small Business Administration, EEOC Appeal
No. 01996635 (January 30, 2002). This petition for enforcement is
accepted by the Commission pursuant to 29 C.F.R. � 1614.503. Petitioner
alleged that the agency failed to fully comply with the Commission's
order to implement remedial relief.
Petitioner filed a complaint, Agency No. 01-97-585, in which she
alleged that the agency discriminated against her on the basis of in
reprisal for prior EEO activity. On August 27, 1999, petitioner filed a
timely appeal of the agency's final decision finding 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
complainant's 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 a supplemental investigation on the issue of compensatory damages.
Petitioner filed this petition arguing that the agency failed to implement
the remedial relief ordered by the Commission.
However, 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. Said submission was erroneously
docketed as a new appeal, EEOC Appeal No. 01A00711. Complainant filed
one complaint with the agency which was assigned Agency No. 01-97-585.
Notwithstanding, when complainant filed a second appeal based on the same
claims, the agency number was incorrectly entered into the Commission's
computer system as Agency No. 01-94-585, thereby creating a separate
appeal that was assigned Appeal No. 01A00711. EEOC Appeal No. 01A00711,
was consequently dismissed as untimely filed as it was submitted
approximately four months after the issuance of the final agency decision.
Thereafter, the agency filed a request for reconsideration, Request
No. 05A20606, of the decision issued in Appeal No. 01996635, which
found discrimination requesting, in essence, clarification as to which
decision was binding on the agency inasmuch as the agency received two
different Commission decisions. Specifically, one finding discrimination
(Appeal No. 01996635) and the second (Appeal No. 01A00711) procedurally
dismissed for being untimely filed.
After a careful review of the record, the Commission finds that
based on clerical error, two decisions were issued on complainant's
complaint. However, complainant's appeal was timely filed and the
decision issued by the Commission in Appeal No. 01996635 (January 30,
2002), which found discrimination, is binding on the agency. A separate
decision is being issued simultaneously on the agency's request for
reconsideration stating that due to clerical error, the appeal docketed
as 01A00711 was in error and is vacated. The decision in EEOC Request
No. 05A20606 will further inform the agency that is must comply with
the Order for relief set forth in EEOC Appeal No. 01996635, which will
be restated in that decision.
Discrimination having been found, the agency must place petitioner as near
as possible to the status she would have but for the discrimination. See,
e.g., Franks v. Bowman Transportation Co., 424 U.S. 747, 764 (1976);
Adesanya v. U.S. Postal Service, 01933395 (July 21, 1994). The petition
for enforcement therefore is GRANTED. The agency shall comply with the
relief ordered in EEOC Request No. 05A20606 as set forth in that decision.
ORDER
The agency is ORDERED to implement the relief ordered in EEOC Appeal
No. 01996635 (January 30, 2002) as restated in EEOC Request No. 05A20606.
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
__05-13-03________________
Date