05970824
03-18-1999
Evelyn J. Watkins Appellant, v. Bruce Babbitt, Secretary, Department of the Interior, Agency.
Evelyn J. Watkins v. Department of the Interior
05970824
March 18, 1999
Evelyn J. Watkins )
Appellant, )
)
v. ) Request No. 05970824
) Appeal No. 01951814
Bruce Babbitt, ) Agency No. LMS-92-022
Secretary, ) Hearing No. 270-93-9088X
Department of the Interior, )
Agency. )
______________________________)
DECISION ON REQUEST FOR RECONSIDERATION
On June 11, 1997, Evelyn J. Watkins (hereinafter referred to as appellant)
timely initiated a request to the Equal Employment Opportunity Commission
(EEOC or Commission) to reconsider the decision in Evelyn J. Watkins
v. Bruce Babbitt, Secretary, Department of the Interior, EEOC Appeal
No. 01951814 (May 6, 1997), received by appellant's attorney on
May 12, 1997. 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 a misapplication
of established policy, 29 C.F.R. �1614.407(c)(2); and the decision is of
such exceptional nature as to have substantial precedential implications,
29 C.F.R. �1614.407(c)(3). Appellant's request is denied; however, the
Commission, on its own motion, will reconsider the previous decision.
ISSUE PRESENTED
The issue presented herein is whether the previous decision provided
appellant with all the relief for which she is entitled.
BACKGROUND
In light of the narrow issue to be decided herein, the Commission will not
repeat the previous decision's narrative. Instead, we note the following
salient facts: pursuant to an administrative hearing, held on August 31,
1992, an EEOC Administrative Judge (AJ) issued a recommended decision
(RD) finding, among other things, that appellant had been retaliated
against for engaging in prior EEO activity when on July 23, 1992, her
performance appraisal was downgraded from a rating of Outstanding to
Fully Successful (hereinafter allegation 1).<1>
The record indicates that in May 1992, appellant's immediate supervisor,
A-1, prepared her annual performance appraisal for the period covering
April 1, 1991 to March 31, 1992. A-1 rated appellant as being outstanding
on all five elements of the appraisal. Appellant's overall summary
rating for the period was Outstanding. On or about May 29, 1992,
A-1, pursuant to the agency's regulations, forwarded the performance
appraisal to appellant's second-level supervisor, A-2, who had to review
the appraisal and indicate her concurrence or nonconcurrence with the
assigned rating.
A-2 disagreed with the rating that A-1 had provided appellant. In a
June 1992 memorandum to A-1, she took issue with certain comments made
in the narrative section of appellant's performance appraisal. A-1 was
also asked to provide statistics and documentation to support the rating
of Outstanding that she gave appellant. A-1 refused to provide any
additional information. A-1, who was subsequently removed for, among
other reasons, unsatisfactory work performance, violated the agency's
regulations by providing appellant a copy of the performance appraisal
before any action was taken by A-2.
On July 14, 1992, appellant was notified that she would be reporting to
A-2 as her new first line supervisor. On July 22, 1992, A-2 issued a new
performance appraisal to appellant for the subject period. Appellant was
rated Fully Successful on all elements and received an overall rating of
Fully Successful. For each performance element, A-2 wrote that A-1 had
not provided any documentation or information that would have justified
any rating other than Fully Successful. A-3, Chief, Program Services
Office, signed the new performance appraisal as the Reviewing Official.
The AJ found that A-2's justification for disregarding A-1's recommended
rating, and her evaluation of appellant as being Fully Successful,
i.e., A-1's refusal to provide documentation that would have supported
an Outstanding rating, was a pretext for reprisal based discrimination.
According to the AJ, A-2 "[f]ailed to avail herself of an obvious and
available source of documentation -- the complainant." (RD at p.21).
In accordance with the agency's regulations, the AJ found that A-2
should have held a preappraisal meeting with appellant in order to get
information about her performance; reevaluate appellant; remove A-1's
remarks from the appraisal; and return the revised appraisal to A-1 for
her signature before presenting it to appellant. Since these measures
were not taken, the AJ recommended, in pertinent part, that the agency:
Hold a preappraisal meeting with the complainant in connection with
the performance appraisal period April 1, 1991 to March 31, 1992 and
permit the complainant to provide documentation concerning her work
and performance prior to completing a written performance appraisal.
In accordance with agency policy, the agency may remove the comments
which were made by [A-1] relating to staffing and work environment in
the library, after which the agency shall evaluate the complainant,
and award a new summary rating, effective on July 22, 1992.
In its final decision (FAD) dated November 10, 1994, the agency adopted
the findings of the AJ. The FAD also adopted the above corrective action
recommended by the AJ. Appellant filed an appeal with the Commission.
Appellant, in addition to contesting the findings of no discrimination
previously mentioned, argued that the agency and the AJ erred in not
finding that she was entitled to a rating of Outstanding rather than
merely a re-evaluation of her performance. The previous decision,
without addressing appellant's contention that she was entitled to a
rating of Outstanding, affirmed the FAD. Among the remedies ordered by
the previous decision, the agency was directed to:
[h]old a pre-appraisal meeting with appellant in connection with the
performance appraisal period April 1, 1991 to March 31, 1992, and permit
appellant to provide documentation concerning her work and performance
prior to completing a new written performance appraisal. Thereafter,
the agency shall issue appellant a new performance appraisal, effectively
issued on July 22, 1992. Neither the rating nor reviewing official
for appellant's original performance appraisal shall be involved in
the issuance of the new appraisal. The new appraisal shall be issued
to appellant within forty-five (45) days of the date this decision
becomes final.
In appellant's request for reconsideration (RTR), she maintained that
the previous decision erred in not directing the agency to provide her
with a rating of Outstanding. The agency did not respond to appellant's
RTR.
ANALYSIS AND FINDINGS
After a careful review of the record, the Commission finds that
appellant's request for reconsideration fails to meet the criteria of 29
C.F.R. �1614.407(c). It is therefore the decision of the Commission to
deny her request. On its own motion, however, the Commission offers the
following comments in order to directly address appellant's contention
that the agency and the AJ erred in not finding she was entitled to a
rating of Outstanding rather than a re-evaluation.
Where discrimination is found, the injured party is to be placed, as
near as may be, in the situation they would have occupied if the wrong
had not been committed. Albemarle Paper Company v. Moody, 422 U.S. 405,
418-19 (1975). We note at the outset that throughout the processing of
her complaint, appellant has incorrectly maintained that the agency's
internal regulations mandate that if a Reviewing Official fails to
take action on an appraisal within fifteen (15) days of its receipt,
the Rater's assessment becomes final. Since A-2 did not act within the
said time period, appellant argued that A-1's original rating must stand.
A review of the pertinent section of the agency's Performance Management
System Timetable, however, indicates that although the Reviewing Official
does have fifteen (15) days to review an appraisal, there is nothing that
indicates the Rater's assessment becomes the official rating if no action
is taken within the period. (Report of Investigation, Exhibit 8, p.230).
Based on a review of the record, the Commission finds that appellant
was not entitled to relief beyond that which was ordered by the previous
decision. We find that placing appellant in the position she would have
occupied had she not been discriminated against does not necessarily
mean that she is entitled to a rating of Outstanding. As the record
indicates, appellant's entitlement to such a rating was never established.
We agree with the AJ that, at this point, the agency's regulations only
entitle appellant to a reevaluation of her performance. Consequently,
we find no discernable reason to overturn the AJ's determination.
CONCLUSION
After a review of appellant's request to reconsider, the previous
decision, and the entire record, the Commission finds that appellant's
request does not meet the criteria of 29 C.F.R. �1614.407(c). It is
therefore the decision of the Commission to DENY appellant's request.
The Commission, however, has decided to reconsider the previous decision
on our own motion, for the reasons provided. The decision in EEOC
Appeal No. 01951814 (May 6, 1997), as MODIFIED above, remains the
Commission's final decision. The agency is directed to comply with the
previous decision's Order as restated below. There is no further right
of administrative appeal on a decision of the Commission on a Request
to Reconsider.
ORDER
The agency is ORDERED to take the following remedial action:
(1) The agency shall hold a pre-appraisal meeting with appellant
in connection with the performance appraisal period April 1, 1991
to March 31, 1992, and permit appellant to provide documentation
concerning her work and performance prior to completing a new written
performance appraisal. Thereafter, the agency shall issue appellant a
new performance appraisal, effectively issued on July 22, 1992. Neither
the rating nor reviewing official for appellant's original performance
appraisal shall be involved in the issuance of the new appraisal.
The new appraisal shall be issued to appellant within forty-five (45)
days of the date this decision becomes final.
(2) The agency shall provide appellant with all awards or fringe
benefits accruing from the new appraisal within thirty (30) days of the
date the new appraisal is issued.
(3) The agency shall conduct a supplemental investigation pertaining to
appellant's entitlement to any compensatory damages incurred as result
of the agency's retaliatory actions toward her. The agency shall afford
appellant sixty (60) days to submit additional evidence in support of
her claim for compensatory damages. Within thirty (30) days of its
receipt of appellant's evidence, the agency shall issue a final decision
determining appellant's entitlement to compensatory damages, if any,
together with appropriate appeal rights.
(4) The agency shall post at its facilities in New Orleans, Louisiana
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.
(5) The agency is encouraged to provide training in the obligations
and duties imposed by the anti-discrimination laws to all the managerial
officials responsible for agency actions in this case.
(6) 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.
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:
March 18, 1999
_______________ ______________________________
Date Frances M. Hart
Executive Officer
Executive Secretariat
1The AJ found no discrimination with regard to two other allegations
raised by appellant. We will not address these allegations in this decision,
because appellant's request for reconsideration only concerns the relief
that she was provided with respect to allegation 1.