05980301
10-28-1999
Dawn McGuire, Appellant, v. Bruce Babbitt, Secretary, Department of the Interior, Agency.
Dawn McGuire v. Department of the Interior
05980301
October 28, 1999
Dawn McGuire, )
Appellant, )
)
v. ) Request No. 05980301
) Appeal No. 01955053
Bruce Babbitt, ) Agency No. WGS-94-018
Secretary, ) WGS-94-021
Department of the Interior, )
Agency. )
___________________________________)
GRANTING OF REQUEST FOR RECONSIDERATION
INTRODUCTION
On January 26, 1998, Dawn McGuire, (hereinafter referred to as the
appellant) timely initiated a request to the Equal Employment Opportunity
Commission (Commission) to reconsider the decision in Dawn M. McGuire
v. Dept. of the Interior,<1> EEOC Appeal No. 01955053 (December 18,
1997) received on December 29, 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 that 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). For the reasons
set forth herein, appellant's request is granted.
ISSUE PRESENTED
Whether the previous decision properly affirmed the agency's final
decision which found that appellant failed to prove that she was subjected
to (1) reprisal discrimination when during a meeting on December 21,
1993, she was accused of responding inappropriately, was not listened
to, and was provided a pamphlet on employee counseling services; and,
(2) on the bases of sex (female) and reprisal (prior EEO activity) when,
on January 24, 1994, she was told that she would not receive data she
requested to complete her projects and two male geologists' projects
were given priority over her work.
BACKGROUND
Appellant filed a complaint asserting that she was discriminated against
(1) in reprisal for her prior EEO activity, when, during a meeting
on December 21, 1993, she was accused of responding inappropriately,
not listened to and provided with a pamphlet on the Employee Assistance
Program (EAP); and (2) on the bases of sex and reprisal when, on January
24, 1994, she was told that she would not receive data she requested
to complete her projects and two male geologists' projects were given
priority over her work. The agency conducted an investigation and,
after appellant failed to request an administrative hearing, issued
a final agency decision (FAD) finding no discrimination. The previous
decision affirmed the holding of the FAD, finding that appellant failed
to prove her claims of sex or reprisal discrimination. In doing so, the
decision noted that there were undoubtably personality conflicts between
appellant and her coworkers and superiors, but found, after reviewing
the testimony of all the individuals involved in the investigation,
that none of it was sufficient to prove an illegal motivation for the
agency's actions with regard to the December 1993 meeting or the course
of events relating to appellant's work projects.
In appellant's request for reconsideration, she submits numerous
affidavits and other materials from investigations completed by the
agency on April 3, 1996 and transmitted to appellant in August 1996,
which addressed 32 related allegations of sex and reprisal discrimination
by the same agency officials. These investigations were consolidated in
one final agency decision which is being addressed separately on appeal
by the Commission in Dawn McGuire v. Dept. of the Interior, EEOC Appeal
No. 01974949. In response to appellant's request, the agency asserts
that appellant filed a civil action on October 12, 1994 which encompassed
the allegations discussed herein, and asserts that the evidence now
submitted by appellant on reconsideration is not new and material in
that it is contained in another agency investigation.<2> Appellant has
responded by indicating that she does not presently have such an action
pending and that the agency was aware of this fact on reconsideration.<3>
ANALYSIS AND FINDINGS
After a careful review of the record, the Commission finds that
the appellant's request for reconsideration meets the criteria of 29
C.F.R. �1614.407(c)(1), in that the appellant has submitted documentation
which we find to be new and material evidence. The documentation
submitted was clearly unavailable to appellant at the time she submitted
her appeal brief herein. Moreover, the affidavits submitted came from an
agency investigation of appellant's complaints concerning other related
events. These affidavits demonstrate a pattern of retaliation against
appellant by the same agency officials and therefore are clearly material
in nature. Moreover, we find this new evidence to be sufficient to prove
retaliatory animus in the actions taken by those agency officials towards
appellant that have been cited in the present complaint. Several coworker
witnesses have testified to the retaliatory atmosphere experienced by
appellant.
Specifically, a Selecting Official (SO) who chose appellant for an
Associate Branch Chief position testified that appellant's third level
supervisor, an official involved herein, (R1) informed her of appellant's
EEO complaints and also unsuccessfully suggested that appellant's
selection to the position might be utilized as part of an attempt to
settle her pending complaints. The SO further testified that in her
opinion, the agency's treatment of appellant was shabby and entirely
unlike anything she had ever witnessed in her career at the agency.
Several of appellant's colleagues have testified to their belief that
agency managers had created a retaliatory work environment for appellant
at the agency based on their animus toward appellant for filing EEO
complaints in which they were involved. These colleagues also expressed
the belief that the adverse employment actions which ensued during the
pendency of appellant's complaints were motivated by such animus toward
appellant.
One colleague who still worked at the agency (C1) stated that appellant
was basically "bad mouthed and run off" by "just about everyone in the
end." He stated that there were a lot of "jokes, sniping, crafty comments,
lots of chuckling" directed at appellant, some of which involved her
EEO activity, and that it was his impression that appellant "got in a
vicious cycle, kind of like a vortex, and then once she filed the EEO
suit, she was no longer on the project, and then she was RIFed." This
witness also indicated his discomfort at providing such testimony during
the investigation. Request for Reconsideration (RFR) Exhibit P.
A former colleague of appellant's (C2), who had retired from agency
employment at the time of his testimony, averred to the following
as an example of what he deemed to be agency management retaliatory
discrimination against appellant. He described how appellant's second
level supervisor, another one of the officials involved herein (R2),
had "captivated groups of people standing around with coffee cups in
hand discussing the so-called [appellant] problem and how much the EEO
activity was costing the Branch." He noted that some of these hallway
sessions lasted 15-20 minutes at a time and that R2's face became
"strained and flushed" after several minutes of talking about the EEO
activity. He asserted that the hallway group discussion substantially
contributed to a "gang hate," mentality about appellant. Finally, he
noted that such discussions about the [appellant] problem were a major
topic of conversation frequently in small groups or offices, resulting in
appellant being "prejudged and convicted by her peers." Appellant's RFR,
Exhibit C. This colleague also averred that he witnessed a confrontation
between appellant and the custodian of supply samples which was later used
by appellant's third level (R1) and appellant's first level supervisor
(R3) to demonstrate appellant's alleged interpersonal problems. He opined
that the custodian had been disrespectful and rude towards appellant
and that R1 and R3 had condoned this behavior.Id.
Another colleague of appellant's (C3) testified that R2 complained to
her about appellant's EEO complaints costing money and that R3 showed
a basic disrespect for female scientists. She also claimed never to
have noticed that appellant had any difficulties with her interpersonal
skills and testified that "people skills" was "a favorite" reason for
managers to utilize in justifying a retaliatory action such as appellant's
nonselection for the Associate Branch Chief position in the Branch of
Geochemistry, for which another less qualified candidate was selected. She
also testified to the following about the retaliatory culture of the
agency towards individuals such as appellant who pursued EEO complaints:
Once an EEO complaint is filed, you become an outsider in the
organization. You're not included in things any more. You're shunned,
particularly it happens with project work. Even people who were friendly
to you before and have nothing to do with management are scared to come
in and talk to you once the word circulates because they know you're a
pariah. And, if they associate with you, it will ruin their chances for
advancement in the Survey too. And, that's underscored by the fact that
they RIFFED every single person who had a pending EEO complaint in the
USGS...Everybody is totally scared to speak out unless they've already
been laid off and they've got nothing to lose.
RFR, Exhibit D.
Witnesses also support the assessment that appellant had been retaliated
against by agency officials in numerous actions cited by appellant. For
example, another coworker alleged that appellant was purposely denied
crucial data support for her project by individuals who could easily
have fulfilled her requests for data processing but were told by agency
managers not to do so. Another witness alleged that another coworker
was preselected for the branch chief position because of appellant's
"interpersonal skills" problem which was clearly related to her pursuit
of her EEO claims. Other witnesses testified that appellant was purposely
excluded from an ad hoc panel formed to look into the reasons for the
number of complaints in the area and was encouraged to resign from a
statistical task force investigating patterns of sex discrimination in
agency hiring based on her status as an EEO complainant.
Moreover, we have also considered, as background evidence, testimony by
numerous witnesses who asserted that they were intimidated by various
actions taken by the agency just prior to a hearing on appellant's
federal district court case. Specifically, they testified that the
agency sent letters to appellant's witnesses one or two days before
the hearing advising them that they did not have approval to testify as
expert witnesses and that they needed to obtain agency advance approval
in order to testify at all on appellant's behalf. These witnesses also
corroborated that the agency allowed approximately 32 employees to attend
the hearing in an attempt to intimidate appellant and her witnesses.
None of these individuals were required to utilize annual leave in order
to attend the hearing, as was appellant.
Based upon the foregoing new and material evidence, the Commission
reconsiders the previous decision to find that appellant has been
subjected to retaliation in the complaint at issue herein.
CONCLUSION
After a review of the appellant's request for reconsideration, the
agency's response thereto, the previous decision, and the entire record,
the Commission finds that appellant's request meets the criteria of 29
C.F.R. �1614.407(c), and it is the decision of the Commission to GRANT
this request. The decision of the Commission in EEOC Appeal No. 01955053
and the agency's final decision are REVERSED in part and AFFIRMED in
part. The agency is directed to comply with the Commission's Order set
forth below. There is no further right of administrative appeal from a
decision of the Commission on a request to reconsider.
ORDER
I. The agency is ORDERED to take the following remedial actions:
(1) The agency shall take whatever actions it deems necessary, including
but not limited to the actions set forth below, to ensure that neither
appellant nor any other employee is subjected to a retaliatory hostile
work environment in the future.
(2) The agency is to review the matter giving rise to this complaint, and
to determine whether disciplinary action against any of the individuals
discussed herein is appropriate. The agency shall record the basis for
its decision to take or not to take such actions, and report the same
to the Commission in the same manner as implementation of the rest of
the Commission decision is reported.
(3) The agency is ORDERED to provide training for all supervisors,
managers and staff in the Branch of Geochemistry of the Geologic Division
in the Central Region of the U.S. Geological Survey, in Lakewood,
Colorado, to fully inform them on the current state of the law regarding
employment discrimination, especially retaliatory harassment and the goals
behind the law requiring equal employment opportunities for all. All
Supervisors and Managers mentioned in this decision shall be required
to attend this training.
(4) The agency is ORDERED to post the attached notice, as described
below.
(5) Unless otherwise specified, the agency shall accomplish each of the
above actions within sixty (60) days of the date this decision becomes
final.
(6) The agency shall conduct a supplemental investigation pertaining
to appellant's entitlement to compensatory damages.<4> The agency
shall afford appellant sixty (60) days to submit evidence in support
of her claim for compensatory damages.<5> 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,
together with appropriate appeal rights. A copy of the final decision
must be submitted to the Compliance Officer, as referenced below.
POSTING ORDER (G1092)
The agency is ORDERED to post, in a conspicuous place at the Branch
of Geochemistry, of the Geologic Division in the Central Region of the
U.S. Geological Survey, in Lakewood, Colorado, 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 (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:
Oct. 28, 1999
__________________ _______________________________
DATE Frances M. Hart
Executive Officer
Executive Secretariat
NOTICE TO EMPLOYEES
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, 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 PHYSICAL or MENTAL
DISABILITY with respect to hiring, firing, promotion, compensation,
or other terms, conditions or privileges of employment.
The Branch of Geochemistry, of the Geologic Division in the Central
Region of the U.S. Geological Survey (USGS), Lakewood, Colorado facility
supports and will comply with such Federal law and will not take action
against individuals because they have exercised their rights under law.
The USGS has been found to have engaged in retaliatory harassment
of one of its employees. As a result, the agency has been ordered
to consider disciplinary action, provide training to the responsible
management officials and to conduct a supplemental investigation into
the employee's claim of compensatory damages. The USGS 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 and will not retaliate against employees
who file EEO complaints.
The USGS 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 previous decision inadvertently referred to appellant as "Dawn M.
McGuire."
2The agency also asserts that one of the affidavits submitted was
previously submitted by appellant with her appeal brief. However, the
copy of the brief in the underlying record herein does not contain this
affidavit.
3Commission inquiries of the Clerk of the relevant Federal District Court
indicate that the cited civil action was dismissed without prejudice by
the Court on June 28, 1996.
4We note that appellant has specifically indicated on several occasions
throughout the processing of her complaint, that she intends to claim
compensatory damages. Therefore, we will remand this matter in part to
allow appellant to produce evidence to demonstrate that such an award
is warranted and to justify the amount of any such award.
5The Commission has found that where a complainant has made a claim for
compensatory damages, the agency should request that the complainant
provide objective evidence of the alleged damages. See, e.g., Carle
v. Department of the Navy, EEOC Appeal No. 01922369 (January 5, 1993);
Benton v. Department of Defense, EEOC Appeal No. 01932422 (December 10,
1993).