0520090115
05-26-2010
Deborah D. Williams, Complainant, v. Gary Locke, Secretary, Department of Commerce, Agency.
Deborah D. Williams,
Complainant,
v.
Gary Locke,
Secretary,
Department of Commerce,
Agency.
Request No. 0520090115
Appeal No. 0120071697
Agency No. 066200078
DENIAL
The agency timely requested reconsideration of the decision in Deborah
D. Williams v. Department of Commerce, EEOC Appeal No. 0120071697
(October 8, 2008). EEOC Regulations provide that the Commission may,
in its discretion, grant a request to reconsider any previous Commission
decision where the requesting party demonstrates that: (1) the appellate
decision involved a clearly erroneous interpretation of material fact
or law; or (2) the appellate decision will have a substantial impact on
the policies, practices, or operations of the agency. See 29 C.F.R. �
1614.405(b).
In the appellate decision, the Commission found complainant was subjected
to discrimination based on disability (visual impairment) when she
was denied cross-training and reassignment into a Library Technician
position. As a remedy for the discrimination, the Commission ordered the
agency to: (1) cross-train complainant and reassign her into a Library
Technician position, GS-6, or a substantially equivalent position; and
(2) pay complainant the appropriate amount of backpay, with interest,
and other benefits due complainant.
In its request for reconsideration, the agency argues that: (1)
complainant failed to comply with the Commission's regulations for
filing her appeal; (2) the Commission denied the agency its right to
respond to complainant's appeal; (3) the Commission improperly based its
decision on an allegation that was never accepted for investigation or
even raised before an EEO Counselor; (4) the decision misstates material
facts; and (5) the decision is incorrect as a matter of law because it
found complainant entitled to a non-competitive promotion although her
position was at "full performance" level.
The agency also asserts that by ordering the agency to promote complainant
from a GS-5 position at the full performance level to a GS-6 position,
it would be bypassing the regulatory requirement for competitive
reassignments contained in 5 C.F.R. � 335.103(c)(v). The agency argues
that the Office of Personnel Management regulations and agency policy
prohibit noncompetitive reassignment to a position with greater promotion
potential. The agency noted that the Library Technician position was
filled by the later transfer of a co-worker (CW1) who was already a GS-6
and claimed that complainant was not eligible for consideration for this
position through lateral reassignment because she was a GS-5.
Regarding contentions (1) and (2), the agency argues that it was
prejudiced when it failed to receive a copy of complainant's appeal
pursuant to 29 C.F.R. � 1614.403(d). We note that the agency admits
it was notified by the Commission that complainant had filed an appeal
on February 26, 2007, six days after the appeal was filed with the
Commission. The record reveals that complainant did not submit a brief
or statement in support of her appeal, but rather, she only submitted
a copy of EEOC Form 573 which is a Notice of Appeal/Petition and a copy
of the agency's final decision.
EEOC regulations provide that any agency statement or brief in opposition
to an appeal must be submitted to the Commission and served on complainant
within 30 days of receipt of the statement or brief supporting the appeal.
If no statement or brief supporting the appeal is filed, the statement
or brief in opposition to the appeal must be filed within 60 days of
the receipt of the appeal. See 29 C.F.R. � 1614.403(f).
In a March 21, 2007 letter, the agency notified the Commission that
complainant failed to provide the agency with a notice of her appeal and
failed to provide a copy of a statement or brief in support of her appeal.
Notwithstanding, the agency stated "that the file and decision speak
for themselves, and we have no further comment at this time." In the
present case, we find the agency has not shown it was prejudiced by
complainant's failure to provide a copy of her appeal.
With regard to contention (3), the agency argues that the Commission
improperly reframed the allegations in complainant's complaint by adding a
denial of reassignment claim. Upon review, we find the record as a whole
reflects that in addition to her claim that she was denied the opportunity
to cross-train as a Library Technician, her complaint encompassed the
claim that she was denied the opportunity for reassignment as a Library
Technician. Specifically, we note the Report of Investigation (ROI)
identifies complainant's remedy requested as placement in the position of
a Library Technician at the GS-7 level, which complainant believed was
the promotion potential for CW1's reassigned position. In addition, we
note that in her affidavit, complainant stated that although she was later
cross-trained and had been performing the duties of a Library Technician,
she was doing so without the title and without promotion potential.
Thus, we find the Commission properly treated complainant's claim as
involving a claim of denial of cross-training for the Library Technician
position and denial of reassignment to the Library Technician position.
With regard to contention (4), the agency argues complainant has not
established a prima facie case of disability-based disparate treatment
since complainant and CW1 were not similarly situated. The agency also
argues that even assuming complainant and CW1 were similarly situated,
complainant cannot show that she suffered an adverse action or was
treated less favorably than CW1. Upon review, we find the previous
decision applied the correct analysis and we note the agency has not
shown that the finding of discrimination was in error.
With regard to contention (5), the agency argues that regulatory
requirements and agency policy prohibit it from reassigning complainant
into a position with greater promotion potential. In our previous
decision we ordered complainant to be reassigned to a GS-6 from her
GS-5 level. In a footnote, we noted that while complainant requested
reassignment into a position with promotion potential to the GS-7 level,
the coworker's position did not have promotion potential to the GS-7
level.
The record reveals CW1 was reassigned from her position of Computer
Operator, GS-0332-06, GS-6, step 8, in Office of Database Capture
and Conversion's (ODCC's) Preprocessing and Digital Imaging Division
to the position of Library Technician, GS-1411-06 in ODCC's Indexing
and Cataloging Division at GS-6, step 8. The effective date of CW1's
reassignment was December 24, 2005, and the record reveals that the
position was at full performance level.
The record contains a September 26, 2005 electronic mail message from
the Human Resources Specialist (HRS) to complainant's supervisor (S1).
The HRS stated that she had received a Request for Personnel Action
(RFP) to reassign CW1 to a Library Technician position. The HRS
inquired whether CW1 had previously held the position or performed the
responsibilities at the grade level 4 which, Person A stated, would have
qualified her for the position. The HRS also stated that the promotion
potential of similar positions in the office was at GS-7.
In a reply electronic mail message dated September 29, 2005, from
S1 to the HRS, S1 stated that CW1 has been helping with Library
Technician duties on an as needed basis for the past few months and was
a Subscription Clerk previously. S1 stated that these duties qualified
CW1 for the Library Technician position. S1 also stated that there was no
promotion potential for CW1 in the Library Technician position. She also
noted that in the past, several positions "capped" at the GS-5 level.
The record contains a list of employees in the agency's Digital Imaging
Division for the period April 1, 2004, to May 31, 2006. The list
identifies two Library Technicians whose grade levels were GS-7.
Neither of the two is CW1.
The record contains an Investigator's Memorandum dated November 6,
2006, noting that the Investigator interviewed the HRS on October 26,
2006. The HRS mentioned that she received paperwork on complainant to
reassign her into a Library Technician position at the GS-5 level with
no promotion potential. The HRS noted that the paperwork had not been
signed to date.
Accompanying its request, the agency submitted a Notice of Personnel
Action approved by the Chief Human Capital Officer on April 6, 2007, with
an effective date of December 23, 2007, indicating that complainant's
reassignment to the Library Technician position, GS-5, occurred as a
result of a position review.
According to 5 C.F.R. � 335.103(c)(v), "[r]eassignment . . . to a position
at a higher grade or with more promotion potential than a position
previously held on a permanent basis" must be effected competitively.
The record contains a statement from the HRS who noted that the policy
on lateral reassignment covers employees that move from their existing
position to a new position in another organization or change to a
new position description within the same organization. The HRS noted
that a reassignment action is a lateral move (at the same grade) and
without an increase in pay. The HRS noted that with regard to CW1 she
was concerned that management wanted to put CW1 into a position where
other Library Technicians were at higher grades. The HRS stated that
management assured her that CW1 would not have any promotion potential.
The HRS noted that she explained to management that if they wanted to
promote an employee they would have to advertise the position, and the
employee would have to apply for the position.
In the present case, the record reveals that the Library Technician
position was held by employees at various grade levels, from GS-5
through GS-7. The record reveals that the agency reassigned CW1, who at
the time held a GS-6 position, to a GS-6, Library Technician position,
with no promotion potential. The record reveals that a reassignment
to a higher grade or with more promotion potential than a position
previously held on a permanent basis must be effected competitively.
At the time the agency discriminatorily denied complainant cross-training
and reassignment, complainant occupied a GS-5 position. Accordingly,
we find the appropriate remedy for the agency's actions is to reassign
complainant to a GS-5, Library Technician position with no promotion
potential. Complainant has not shown that but for the discrimination she
would have been reassigned to a GS-6 level. As a result of our decision,
complainant is not entitled to backpay.
After reconsidering the previous decision and the entire record, the
Commission finds that the request fails to meet the criteria of 29
C.F.R. � 1614.405(b), and it is the decision of the Commission to deny
the request. We find that complainant has not shown that the appellate
decision involved a clearly erroneous interpretation of material fact or
law, or that the appellate decision will have a substantial impact on
the policies, practices, or operations of the agency. Notwithstanding,
the Commission modifies its previous order to require the agency to
reassign complainant into a Library Technician position, GS-5, or a
substantially equivalent position.
The decision in EEOC Appeal No. 0120071697, with a modification of the
Order, remains the Commission's decision. There is no further right of
administrative appeal on the decision of the Commission on this request.
The agency shall comply with the Order as set forth herein.
ORDER
To the extent it has not already done so, the agency shall take the
following remedial actions:
1. Within 60 days of the date this decision becomes final, the agency
shall offer complainant cross-training and a reassignment into the Library
Technician position, GS-5, or a substantially equivalent position.
Complainant shall notify the agency within 30 days from the date she
receives the offer whether she will accept the offer.
2. The agency shall provide no less than 16 hours of EEO training, with
an emphasis on the Rehabilitation Act, for all responsible management
officials.
3. The agency shall consider taking appropriate disciplinary action
against the responsible management officials. The Commission does not
consider training to be disciplinary action. The agency shall report
its decision to the Compliance Officer. 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. If any of the responsible
management officials have left the agency's employ, the agency shall
furnish documentation of their departure date(s).
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 that the
corrective action has been implemented.
POSTING ORDER (G0900)
The agency is ordered to post at its Springfield, Virginia facility
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 (K1208)
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 77960, Washington,
DC 20013. 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 (R0408)
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 (Z1008)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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 with
the Court 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
May 26, 2010
__________________
Date
2
0520090115
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0520090115