Susanna Leon-Guerrerov.Department of Transportation 05990127 August 11, 2000 . Susanna Leon-Guerrero, Complainant, v. Rodney E. Slater, Secretary, Department of Transportation, Agency.

Equal Employment Opportunity CommissionAug 11, 2000
05990127 (E.E.O.C. Aug. 11, 2000)

05990127

08-11-2000

Susanna Leon-Guerrero v. Department of Transportation 05990127 August 11, 2000 . Susanna Leon-Guerrero, Complainant, v. Rodney E. Slater, Secretary, Department of Transportation, Agency.


Susanna Leon-Guerrero v. Department of Transportation

05990127

August 11, 2000

.

Susanna Leon-Guerrero,

Complainant,

v.

Rodney E. Slater,

Secretary,

Department of Transportation,

Agency.

Request No.05990127

Appeal No. 01965192

Agency No.2-94-0260

DECISION ON REQUEST FOR RECONSIDERATION

INTRODUCTION

On November 2, 1998, the agency timely initiated a request to the Equal

Employment Opportunity Commission (the Commission) to reconsider the

decision in Susanna Leon-Guerrero v. Department of Transportation, EEOC

Appeal No. 01965192 (September 30, 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 64 Fed. Reg. 37,644, 37,659 (1999) (to be codified and

hereinafter referred to as 29 C.F.R. � 1614.405(b)). For the reasons

set forth below, the previous decision is modified.

ISSUE PRESENTED

The issue presented is whether the previous decision properly reversed the

agency's final decision regarding a portion of complainant's complaint.

BACKGROUND

Complainant filed an EEO complaint on January 18, 1994, alleging that she

had been discriminated against on the bases of her color (dark-skinned),

sex (female), national origin (Mexican), and in reprisal for prior EEO

activity in violation of Title VII of the Civil Rights Act of 1964,

as amended, 42 U.S.C. �2000e et seq. Complainant alleged that she

was discriminated against when: (1) she was not permitted to attend

the Federal Aviation Administration's (FAA) National Labor Relations

Conference in September 1993; (2) she was not nominated to the Executive

Potential Program (EPP); (3) she was not given guidelines on how to

achieve an outstanding rating and her level of performance was not

properly reflected in her �Meritorious� rating of September 10, 1993;

(4) she was denied materials and information she felt were critical to

the performance of her duties; (5) she was rarely assigned to �acting�

capacity as Division Manager and not being contacted to discuss contract

interpretations; and (6) a coworker filed a grievance against her.

In its final agency decision (FAD), the agency found no discrimination

with regard to complainant's complaint. The agency found that claim (2)

was moot on the grounds that complainant was selected for and completed

EPP in 1996. Further, the agency found that complainant failed to

establish a prima facie case of discrimination on the bases alleged in

issues (1) and (3)-(5) and failed to establish pretext with respect to

claim (6).

The previous decision upheld the agency's finding of no discrimination

with respect to claims (1), (3), (4), and (6). It reversed the FAD's

finding of no discrimination in claim (5) and ordered the agency to afford

the average number of acting Division Manager assignments afforded the

two comparative employees. The previous decision also found that claim

(2) was not moot for complainant sought compensatory damages and that

the agency failed to include any information which would otherwise

articulate a legitimate nondiscriminatory reason for its failure

to nominate complainant. Hence, the decision found that the agency

discriminated against complainant and directed the agency to conduct

a supplemental investigation pertaining to complainant's entitlement

to compensatory damages and to issue a final decision determining

complainant's entitlement to the award with appropriate appeal rights.<2>

In its Request to Reconsider (RTR), the agency argues that the previous

decision erroneously found discrimination with regard to claim (5)

and should have remanded this issue to the agency for a new FAD.

It further argued that the remedy ordered in the previous decision was

not appropriate since complainant accepted a voluntary reassignment at

another facility. The agency also alleges that the previous decision

should have remanded claim (2) for further investigation and should

not have concluded that the agency discriminated in this circumstance.

Finally, the agency seeks to have this case dismissed because it alleges

that complainant has filed this same complaint in civil court.

In complainant's response to the agency's RTR, she argues that the

Commission was given ample evidence when it found discrimination.

Further, complainant asserts that the Commission's remedy was appropriate

and that she would return to her prior position if it was needed for

the Commission's order to be carried out by the agency.<3>

ANALYSIS AND FINDINGS

Upon review of the record, the Commission finds that complainant has

filed a complaint in civil court. After review of the complaint, we find

that complainant has only alleged the claims affirmed by the previous

decision and not claims (2) and (5). Therefore, the Commission retains

jurisdiction over claims (2) and (5). The agency has not provided

the Commission with any new argument which was not raised during the

previous decision. Therefore, after a careful review of the record and

the previous decision, the Commission finds that the agency's argument

for finding no discrimination regarding claims (2) and (5) fails.

The agency, however, also argues that the remedy ordered by the Commission

in the previous decision was incorrect. Upon review of the record, the

Commission finds that the agency is unable to comply with a portion of the

order proscribed in the previous decision. The previous decision directed

the agency to afford complainant acting assignments. The record indicates

that complainant accepted a voluntary reassignment and is no longer at

the same facility. The Commission notes that complainant is seeking

reinstatement to her previous position in her complaint in civil court.

If complainant is awarded such relief, then the ordered relief of the

previous decision will be applicable. Therefore, the Commission finds

that the previous order is a proper remedy only if complainant returns

to her previous position. Until that event occurs, the agency is not

required to implement such an order. Notwithstanding, we find that the

remaining orders were proper. The agency is directed to supplement

the record and issue a final decision determining the appropriate

compensatory damages it shall award complainant in the Commission's

finding of discrimination with regard to claims (2) and (5).

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 meet the criteria of 29 C.F.R. �1614.405(b), and it is the

decision of the Commission to modify the previous decision. There is no

further right of administrative appeal from a decision of the Commission

on a request for reconsideration.

ORDER

In the event complainant is reinstated to her previous position,

the agency is directed to afford complainant the average number of

acting Division Manager assignments afforded to the two comparative

employees named herein during the time period from the date of the

Division Manager's assignment to the unit until January 18, 1994.

The assignments shall be made as opportunities arise in the unit where

complainant is employed. They shall be granted in addition to the number

of acting supervisory assignments complainant would otherwise receive

in the normal course of business.

The agency shall conduct a supplemental investigation pertaining to

complainant's entitlement to compensatory damages. The agency shall

afford complainant sixty (60) days to submit evidence in support

of her claim for compensatory damages. Within thirty (30) days of

its receipt of complainant's evidence, the agency shall issue a final

decision determining complainant's entitlement to compensatory damages,

together with appropriate appeal rights. A copy of the final decision

must be submitted to the Compliance Officer, as referred below.

The agency shall post at its facilities in Washington, D.C., 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,

nad shall remain posted for sixty (60) consecutive dates, 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 (H1199)

If complainant has been represented by an attorney (as defined by 64

Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter

referred to as 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 (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).

COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (Q0400)

This decision affirms the agency's final decision/action 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 WITHIN NINETY (90) CALENDAR

DAYS from the date that you receive this decision 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 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 (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, Acting Director

Office of Federal Operations

August 11, 2000

__________________

Date

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 Department of Transportation, Federal Aviation Administration, Office

of Labor and Employee Relations, Washington, D.C., supports and will

comply with such Federal law and will not take action against individuals

because they have exercised their rights under law. It has remedied the

employee affected by the Commission's finding by affording her acting

supervisory assignments and an opportunity to prove compensatory damages.

The Department of Transportation, Federal Aviation Administration,

Office of Labor and Employee Relations, Washington, D.C., will ensure

that officials responsible for all Federal equal employment opportunity

laws and will not subject employees to color, national origin, or sex

discrimination in the future.

The Department of Transportation, Federal Aviation Administration,

Office of Labor and Employee Relations, Washington, D.C., 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

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.

2The determination of compensatory damages is related to the finding of

discrimination with regard to claims (2) and (5).

3 Complainant argues that she left the facility because of the alleged

discrimination and harassment. In her complaint, complainant failed to

allege and prove a hostile work environment.