Jesse A. Edwards, Complainant,v.Bruce Babbitt, Secretary, Department of the Interior, Agency.

Equal Employment Opportunity CommissionNov 17, 2000
05980336 (E.E.O.C. Nov. 17, 2000)

05980336

11-17-2000

Jesse A. Edwards, Complainant, v. Bruce Babbitt, Secretary, Department of the Interior, Agency.


Jesse A. Edwards v. Department of the Interior

05989336

November 17, 2000

.

Jesse A. Edwards,

Complainant,

v.

Bruce Babbitt,

Secretary,

Department of the Interior,

Agency.

Request No. 05989336

Appeal No. 01955486

Agency No. LMS-93-050

DENIAL OF REQUEST FOR RECONSIDERATION

The complainant initiated a request to the Equal Employment Opportunity

Commission (EEOC or Commission) to reconsider the decision in Jesse

A. Edwards v. Department of the Interior, EEOC Appeal No. 01955486

(January 5, 1998).<1> EEOC Regulations provide that the Commission may,

in its discretion, 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 his original complaint, complainant alleged that he was discriminated

against on the bases of race (Black), age (born in 1929), physical

disability (hearing impairment), and reprisal (prior EEO activity) when

he was not selected, nor permitted to compete, for the positions of Deputy

Program Director for Indian Royalty Assistance (DPD), and Program Analysis

Officer (PAO). This was done by the Associate Director of the Royalty

Management Program (AD), who was the selecting official, utilizing the

management development program (MDP), under which complainant was not an

eligible candidate, rather than the competitive announcement procedure,

under which he would have been.

In his request to reconsider, complainant includes new and material

evidence which he contends was not readily available when the appeal

decision was issued, notably, an affidavit by a fellow employee which

alleges that there was no managerial emergency requiring the use of the

MDP procedure rather than the competitive announcement procedure for the

DPD position. The affidavit contends that the emergency was �contrived�

so that the AD could noncompetitively promote the candidate of his choice,

who was an MDP graduate, into the DPD position.

According to a prior Consent Decree entered into by complainant and

the agency, the agency was to competitively fill all higher graded

positions by the �full merit selection process� except, among other cases,

�emergency situations as determined by the Associate Director of Royalty

Management, acting in good faith.� The relevant emergency situation

was the determination by the AD of mismanagement by the Program Director

(PD), Office of Indian Royalty Assistance, and his improper treatment

of subordinate employees. His proposed solution was to restructure the

Office so that the PD would continue to provide general oversight of the

Office activities but have no direct subordinates other than the DPD,

who would be responsible for day-to-day management. Since the AD found

that the acting DPD to be weak in management skills, however, he arranged

to have his original position as an senior staff auditor eliminated,

thus forcing him to either retire or be transferred. The AD then chose

his preferred candidate, who was a trained facilitator with excellent

proven skills in process consultation, to be the new DPD.

As evidence that the management emergency was contrived by the AD,

who was not acting in good faith as required by the Consent Decree,

the affidavit points out that after the AD's candidate was placed in

the DPD position effective April 4, 1993, the PD continued to be the

first-level supervisor to all subordinate supervisors in the Office,

not allowing the new DPD any of these duties until the PD left the

Office in mid-1994. This happened despite the fact that the AD had

written in the new DPD position description that �[t]he incumbent is

the first-level supervisor over the subordinate supervisors in the

OIRA.� In addition, the affidavit proffers as evidence that there was

no management emergency requiring the swift noncompetitive approval of

a new DPD of proven competence the fact that the ST went on a two-week

vacation less than 90 days after he was noncompetitively promoted.

The Commission finds conclusive evidence that a management emergency

did exist, however, from the objective report of the organizational

psychologist hired by the AD to assess the situation. She found that

�[t]he chaotic and disruptive and disruptive work environment� at the

Office was �primarily� the result of the management style of the PD.

While this finding pointed to the need to replace the PD, the AD credibly

testified that approvals for such a change would have taken months

to accomplish, since it would have required action at the most senior

levels of the agency. A quick remedy was available, however, by simply

replacing the acting DPD with a person of proven interpersonal skills and

management ability to be placed as a buffer between the PD and the staff.

Such a person would be readily available from the list of MDP graduates.

As to the affidavit's contention that the so-called �acting� DPD was

actually in a permanent position, and that his removal was additional

evidence that the management emergency was contrived, we note that if

his position were indeed permanent, he could not have been removed

by abolishing his former position of senior staff auditor, which

is what actually happened. Furthermore, while the psychologist did

not make any reference to his weak management skills in her report,

the affidavit provides no positive evidence that the acting DPD was,

in fact, satisfactorily performing his supervisory duties such that his

removal would be unjustified.

As to the fact that when the new DPD was moved into the position, the PD

did not permit him to be the first-level supervisor of all subordinate

employees, as intended by the AD, we do not see this as additional

evidence that the management emergency was contrived, for the following

reason: The AD had testified in District Court in connection with a

civil suit by the author of the affidavit that although the normal

role of the DPD was not to be a supervisor, he had hoped that the PD

would allow the DPD to supervise the direct reports to the Office.

When the PD chose not to do so, he was sent off on a 30-day detail for

a�cooling-off� period, which allowed the new DPD to provide the needed

buffer between the PD and the staff. In this regard, the new DPD provided

a communication link so some of the staff, who would not work directly

with the PD, could get needed direction and work assignments, and so

greatly reduced the tension that had existed in the Office. We note

that this was accomplished before the new DPD went off on his vacation,

which the affidavit proffered as additional evidence of pretext.

After a review of the complainant's request for reconsideration, the

previous decision, and the entire record, the Commission therefore 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.

The decision in EEOC Appeal No. 01955486 remains the Commission's

final decision. There is no further right of administrative appeal on

the decision of the Commission on this request for reconsideration.

COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (P0900)

This decision of the Commission is final, and there is no further right

of administrative appeal from the Commission's decision. 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. 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.

RIGHT TO REQUEST COUNSEL (Z1199)

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:

______________________________

Carlton M. Hadden, Director

Office of Federal Operations

November 17, 2000

Date

1On November 9, 1999, revised regulations governing the EEOC's federal

sector complaint process went into effect. These regulations apply

to all federal sector EEO complaints pending at any stage in the

administrative process. Consequently, the Commission will apply

the revised regulations found at 29 C.F.R. Part 1614 in deciding the

present appeal. The regulations, as amended, may also be found at the

Commission's website at www.eeoc.gov.