05a00069
04-17-2000
Richard Brooks, Complainant, v. Lawrence H. Summers, Secretary, Department of the Treasury, Agency.
Richard Brooks v. Department of the Treasury
05A00069
April 17, 2000
Richard Brooks, )
Complainant, )
) Request No. 05A00069
v. ) Appeal No. 01975008
) Agency No. 95-2230
Lawrence H. Summers, )
Secretary, )
Department of the Treasury, )
Agency. )
____________________________________)
DENIAL OF REQUEST FOR RECONSIDERATION
On October 15, 1999, the Department of the Treasury (agency) initiated
a request to the Equal Employment Opportunity Commission (Commission)
to reconsider the decision in Richard Brooks v. Department of the
Treasury, EEOC Appeal No. 01975008 (September 16, 1999).<1> EEOC
Regulations provide that the Commissioners may, in their discretion,
reconsider any previous Commission decision. 64 Fed. Reg. 37,644, 37,656
(1999)(to be codified and hereinafter referred to as EEOC Regulation 29
C.F.R. � 1614.405(b)). The party requesting reconsideration must submit
written argument or evidence which tends to establish one or more of
the following two criteria: the appellate decision involved a clearly
erroneous interpretation of material fact or law; or the decision will
have a substantial impact on the policies, practices or operations of
the agency. The agency's request is denied.
ISSUE PRESENTED
The issue presented herein is whether the previous decision properly
reversed the agency's final decision finding no discrimination with
regards to complainant's transfer and performance evaluation.
BACKGROUND
The record reflects, that for the relevant time period, complainant
was a special agent for the Department of the Treasury. In September
1994, complainant contacted the agency's ombudsman claiming that he
was being unlawfully discriminated against because of his age when he
was consistently denied promotions for which he applied. Following his
complaint to the agency's ombudsman, complainant was transferred to the
West Palm Beach office, he was issued a performance evaluation which was
lower than he received in previous years, complainant did not receive
the monetary awards he was recommended, and the agency refused to restore
leave complainant lost while involved in the prosecution of a case.
Believing that he was being continually discriminated against, complainant
initiated contacted with an EEO Counselor. Thereafter, he filed a formal
complaint based on age, race, gender and retaliation in April 1995. The
formal complaint was comprised of the following matters: complainant was
transferred to the West Palm Beach office; complainant received a low
performance evaluation in February 1995; his request for leave restoration
was being delayed and subsequently denied; and he did not receive the
monetary awards for which he was recommended. At the conclusion of
the investigation, complainant requested that the agency issue a final
decision on the merits of his case. The final agency decision found
that complainant was not discriminated against based on his age, race,
gender or retaliation. Moreover, the agency decision dismissed the claim
for restoration of leave and for the monetary awards complainant did
not receive. The previous decision reversed the agency's final decision
with respect to complainant's transfer and his performance evaluation.
In addition, since the previous decision was issued, complainant has
subsequently retired and is no longer employed by the agency.
In the agency's request for reconsideration, the agency argues that
the previous decision erred when it found retaliation in regards to the
transfer and the performance appraisal because the responsible agency
officials were not aware of any prior EEO activity.
The complainant did respond to the agency's request for reconsideration.
In his opposing statement, he claims the agency has failed to meet
the requirement's under 29 C.F.R. � 1614.405 to reopen the decision.
Furthermore, complainant requests that the Commission consolidate the
final decision in case No. 96-2125 with the current request and adjudicate
on both cases simultaneously.
ANALYSIS AND FINDINGS
As discussed above, the Commission may, in its discretion, reconsider
any previous decision when the party requesting reconsideration submits
written argument or evidence which tends to establish that any of
the criteria of 29 C.F.R. � 1614.405 is met. In order for a case to
be reconsidered, the request must contain specific information which
meets the requirements of this regulation. It should be noted that the
Commission's scope of review on a request to reconsider is limited.
Lopez v. Department of the Air Force, EEOC Request No. 05890749
(September 28, 1989).
After a review of the agency's request for reconsideration, the
previous decision, and the entire record, the Commission finds that
the agency's request does not meet the criteria of 29 C.F.R. � 1614.405.
Specifically, the agency has failed to present persuasive evidence to show
that the previous decision, finding retaliation and age discrimination,
was improper.
With regards to the claim of retaliation, on request, the agency proffers
that the responsible agency officials were not aware of any prior EEO
activity, thus there cannot be retaliation. However, the record reflects
that out of the three responsible officials, two did not respond to the
question of whether they were aware of the any prior EEO activity by
the complainant. And the third, answered that he was, in fact, aware
of complainant's prior EEO activity. In response to this admission,
the agency now argues that the official was confused and thought the
question referred to the filing of the instant complaint and not to
complainant's contact with the agency ombudsman concerning his assertion
of age discrimination.
The Commission has consistently held that "[t]he anti-reprisal provision
of Title VII protects those who participate in the EEO process and also
those who oppose discriminatory employment practices. Participation occurs
when an employee has made a charge, testified, assisted, or participated
in any manner in an investigation, proceeding or hearing. Participation
also occurs when an employee files a labor grievance, if the employee
raised issues of unlawful employment discrimination in the grievance.... A
variety of activities has been found to constitute opposition .... Because
the enforcement of Title VII depends on the willingness of employees to
oppose unlawful employment practices or policies, courts have interpreted
section 704(a) of Title VII as intending to provide 'exceptionally broad
protection to those who oppose such practices'...." Whipple v. Department
of Veterans Affairs, EEOC Request No. 05910784 (February 21, 1992)
(citations omitted).
In this case, the Commission considers complainant's contact with the
ombudsman a protected activity constituting prior involvement in the EEO
process. The Commission also finds that the responsible agency official
who admitted he was aware of complainant's prior EEO activity knew
that the question included his protected contact with the agency
ombudsman. Thus, the agency has failed to provide evidence to establish
that the previous decision involved a clearly erroneous interpretation
of material fact or law. Furthermore, with respect to the agency
officials who failed to address the question as to whether they knew of
complainant's prior EEO activity, the Commission finds no justification
to disturb the previous decision finding them to have knowledge of such.
The Commission further finds that the agency has failed to provide
sufficient evidence to disturb the previous decision's finding of age
discrimination in relation to the transfer to the West Palm Beach office.
On request, the Commission notes that the previous decision erred when
it granted complainant compensatory damages and attorney's fees.
We note that the Commission has previously determined that neither
compensatory damages nor attorney's fees are available in federal sector
administrative complaints brought under the ADEA, and therefore neither
of these remedies are available to complainant in the administrative
process in the instant case. Taylor v. Department of the Army, EEOC
Request No. 05930633 (January 14, 1994); Patterson v. Department of
Agriculture, EEOC Request No. 05940079 (October 21, 1994). Therefore,
the complainant is not entitled to any compensatory damages or attorney's
fee in connection with the instant case.
Furthermore, the complainant, in response to the agency's request for
reconsideration, has requested that the Commission consolidate and
review the final decision rendered in agency case 96-2125. Since the
complainant has not appealed the decision rendered in case 96-2125,
it is the Commission's decision not to consolidate and review the two
cases together. The Commission also finds that the complainant has
retired thus altering the awards due to him under the prior decision.
CONCLUSION
After a review of the agency's request for reconsideration, the previous
decision, and the entire record, the Commission finds that the agency's
request does not meet the criteria of 29 C.F.R. � 1614.405(b), and
it is the decision of the Commission to deny the agency's request.
The decision of the Commission in EEOC Appeal No. 01975008 remains the
Commission's final decision. There is no further right of administrative
appeal from a decision of the Commission on a request for reconsideration.
ORDER
The agency is ORDERED to take the following remedial action:
1. The agency shall retroactively increase the "overall" rating on
complainant's February 15, 1995 annual performance evaluation to "Exceeds
Fully Successful". Complainant shall also be awarded any appropriate
cash or performance award(s) that would have accompanied that rating,
pursuant to 29 C.F.R. � 1614.501, no later than sixty (60) calendar days
after the date this decision becomes final.
2. The agency is also further directed to submit a report of compliance,
as provided in the statement entitled "Implementation of the Commission's
Decision".
POSTING ORDER (G1092)
The agency is ORDERED to post at its 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.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K1199)
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
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 64
Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter
referred to as 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)(Supp. V 1993). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 64 Fed. Reg. 37,644, 37,659 (1999)
(to be codified and hereinafter referred to as 29 C.F.R. � 1614.409).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (P1199)
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:
April 17, 2000
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing. I certify that
the decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
_______________ __________________________
Date Equal Employment Assistant
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 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at WWW.EEOC.GOV.