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.