01965243
01-20-1999
Elizabeth Donnelly, Appellant, v. Bill Richardson, Secretary, Department of Energy, Agency.
Elizabeth Donnelly v. Department of Energy
01965243
January 20, 1999
Elizabeth Donnelly, )
Appellant, ) Appeal No. 01965243
) Agency Nos. DOE 94(118)NV;
) 94(125)NV; 94(142)NV;
v. ) 95(67)NV; 95(68)NV;
) 95(69)NV
) Hearing Nos. 370-95-X2619
) 370-95-X2620
Bill Richardson, ) 370-95-X2621
Secretary, ) 370-95-X3429
Department of Energy, ) 370-95-X3431
Agency. )
DECISION
Appellant timely initiated an appeal to this Commission from a final
agency decision ("FAD") concerning her complaint of unlawful employment
discrimination in violation of Title VII of the Civil Rights Act of
1964, as amended, 42 U.S.C. �2000e et seq.; and the Age Discrimination
in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. Section 621
et seq. The appeal is accepted pursuant to the provisions of EEOC Order
No. 960.001.
The issue presented is whether appellant was discriminated against
based on her sex, national origin (German-American), religion (Jewish),
age (42) or reprisal for protected EEO activity when, in July 1994:
(1) she was reassigned to a position as Management Analyst, GS-13, in
Financial Compliance and Review (DOE No. 94(125)NV); and (2) she received
a performance rating of "highly successful" rather than "outstanding"
(DOE No. 94(142)NV).
Appellant filed six formal EEO complaints which were accepted and
processed by the agency. Thereafter, the complaints were brought
before an EEOC Administrative Judge ("AJ") who issued two recommended
decisions. In the first recommended decision ("RD") issued, the AJ
determined that there were no material facts in dispute with respect to
three of appellant's complaints and found no discrimination. See 29
C.F.R. �1614.109(e).<1> After a hearing was held on the remaining
three complaints, the AJ issued a second RD finding that appellant
had not been subjected to discrimination when she was reassigned to a
position as Management Analyst (Agency No. DOE 94(125)NV). However,
the AJ found that appellant had been subjected to discrimination on the
basis of reprisal when, in July 1994, she received a performance rating
of "highly successful" rather than the rating of "outstanding" which
was given to appellant's three coworkers (Agency No. DOE 94(142)NV).<2>
As relief for this act of reprisal, the AJ recommended that the agency
change appellant's 1993-94 performance rating to reflect a rating of
"outstanding;" grant appellant any performance award to which she may been
entitled because of such a rating; take all necessary steps to eliminate
retaliatory practices against persons engaging in EEO activities;
and post a notice. The AJ reviewed appellant's claim for compensatory
damages, and specifically found that appellant failed to demonstrate any
nexus between the compensatory damages sought and her performance rating.
In this regard, the AJ noted that the alleged injuries for which appellant
sought damages either predated the July 1994 appraisal by several years or
related to the reassignment, which the AJ found not to be discriminatory,
and not to her receipt of the performance rating.
In its FAD, the agency adopted in its entirety the first RD's finding
of no discrimination; however, the FAD rejected the second RD insofar
as it found that appellant's performance rating constituted reprisal
for appellant's prior EEO complaints.
On appeal, appellant argues that the AJ properly determined that she
was issued a lower performance rating than her coworkers because of
reprisal. (She does not, however, dispute the AJ's finding that she failed
to establish a nexus between the compensatory damages sought and her
performance ratings.) She objects that the AJ erroneously found that her
reassignment did not constitute discrimination. Appellant contends that
other persons were capable of acting in the Competition in Contracting
Act position; that the other thirteen reassignments made during this
period due to recommendations made by the "streamlining committees" were
less significant than hers; and that one other employee who protested
her reassignment, as did appellant, was not reassigned. She does not,
however, dispute the AJ's finding that she failed to establish a nexus
between the compensatory damages sought and her performance ratings.
However, after a careful review of the record, the Commission is
unpersuaded by either the agency's or appellant's criticisms of the RD.
See also Wrenn v. Gould, 808 F.2d 493, 499 (6th Cir. 1987); Universal
Camera Corp. v. National Labor Relations Board, 346 U.S. 474 (1951)(In
general, the credibility determinations of an AJ are entitled to great
weight and deference).
Accordingly, after a thorough review of the record and the arguments
on appeal (including argument and evidence not specifically addressed
herein), it is the decision of the Commission to REVERSE the FAD and
find that appellant established that she was subjected to reprisal
when she was issued a lower performance rating than her coworkers.
Accordingly, the agency is directed to comply with the following ORDER.
The remainder of the FAD, adopting the AJ's findings of no discrimination
with respect to appellant's other allegations, is AFFIRMED.
ORDER (D1092)
The agency is ORDERED to take the following remedial actions:
(1) The agency shall change appellant's 1993-94 performance rating
to reflect a rating of "outstanding;" if such a performance rating
would entitle appellant to a performance award of any kind, she shall
be granted such an award retroactively, with interest if applicable.
See 29 C.F.R. �1614.501. If there is a dispute regarding the exact
amount of any such award, the agency shall issue a check to appellant
for the undisputed amount within sixty (60) calendar days of the date
the agency determines the amount it believes to be due. Appellant may
petition for enforcement or clarification of the amount in dispute.
The petition for clarification or enforcement must be filed with the
Compliance Officer, at the address referenced in the statement entitled
"Implementation of the Commission's Decision."
(2) The agency shall conduct training for its supervisory personnel at
its Nevada Operations Office, regarding their obligations under Title VII
of the Civil Rights Act of 1964, as amended, 42 U.S.C. �2000e et seq.
(3) 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 verifying
that the foregoing corrective actions have been implemented.
POSTING ORDER (G1092)
The agency is ORDERED to post at its Nevada Operations Office, 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.
STATEMENT OF RIGHTS-ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request
containing arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and be submitted to the Director, Office of
Federal Operations, Equal Employment Opportunity Commission, P.O. Box
19848, Washington, D.C. 20036. In the absence of a legible postmark,
the request to reconsider shall be deemed filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and any supporting documentation must be submitted with your
request for reconsideration. The Commission will consider requests
for reconsideration filed after the deadline only in very limited
circumstances. See 29 C.F.R. �1614.604(c).
RIGHT TO FILE A CIVIL ACTION (T0993)
This decision affirms the agency's final decision in part, but it also
requires the agency to continue its administrative processing of a
portion of your complaint. You have the right to file a civil action
in an appropriate United States District Court on both that portion of
your complaint which the Commission has affirmed AND that portion of the
complaint which has been remanded for continued administrative processing.
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 your appeal with the
Commission, until such time as the agency issues its final decision
on your complaint. 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. If you
file a request to reconsider and also file a civil action, 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:
Jan 20, 1999
________________ ___________________________
DATE Frances M. Hart
Executive Officer
Executive Secretariat
1 On appeal, appellant states that she is not appealing the FAD
insofar as it accepted the AJ's findings that she was not subjected to
discrimination with respect to these three complaints, which had alleged
discrimination when appellant: (1) learned that another employee was to be
transferred to the position of Chief of the Contracts Management Branch
in May 1994 (DOE No. 94(118)NV); (2) was rated "qualified" rather than
"highly qualified" for a position as Program Manager, GS-14, in May 1994
(DOE No. 95(67)NV); and (3) was rated "unqualified" for the positions of
Contract Specialist, GS-14, and Procurement Analyst, GS-14, in October
1994 (DOE No. 95(69)NV). Accordingly, these issues are not addressed.
2 The hearing also addressed the issue of whether appellant had
been discriminated against when she received a "Supervisor's Rating
of Potential" of "good." (Agency No. DOE 95(68)NV). However, appellant
specifically states that she is not seeking review of the FAD's adoption
of the AJ's finding of no discrimination on this issue. Accordingly,
this issue also is not addressed.