Dawn McGuire, Appellant,v.Bruce Babbitt, Secretary, Department of the Interior, Agency.

Equal Employment Opportunity CommissionOct 28, 1999
05980301 (E.E.O.C. Oct. 28, 1999)

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).