04a00009
03-21-2000
Edna Gatewood, Complainant, v. Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.
Edna Gatewood, )
Complainant, )
)
v. ) Petition No. 04A00009
Togo D. West, Jr., ) Appeal No. 01953327
Secretary, ) Hearing No. 160-94-8617X
Department of Veterans Affairs, ) Agency No. 94-926
Agency. )
____________________________________)
DECISION ON PETITION FOR ENFORCEMENT
The Equal Employment Opportunity Commission (hereinafter, EEOC or
Commission) has docketed a petition for enforcement (PFE) from Edna
Gatewood (hereinafter, petitioner) requesting enforcement of the
Commission's Order in Gatewood v. Department of Veterans Affairs, EEOC
Appeal No. 01953327 (May 30, 1997).<1> This petition is accepted by the
Commission in accordance with EEOC Regulation 29 C.F.R. � 1614.503(a).
The issue presented in this petition is whether the agency has fully
complied with the Order of the Commission set forth in EEOC Appeal
No. 01953327.
In EEOC Appeal No. 01953327 (May 30, 1997), the Commission found that
the petitioner prevailed on her allegation of being discriminatorily
denied a GS-8 promotion, the Commission reversed the FAD and ordered
the agency to take the following remedial action:
(1) Within thirty (30) calendar days of the date this decision becomes
final, the agency shall make the [petitioner's] promotion to a GS-8
dental technician position retroactive to April 15, 1991, with full
seniority, back pay, interest and all other benefits incident thereto.
Within sixty (60) calendar days of the date this decision becomes final,
the agency shall determine the appropriate amount of back pay, interest
and other benefits due petitioner, pursuant to 29 C.F.R. � 1614.501.
The [petitioner] shall cooperate in the agency's efforts to compute
the amount of back pay and benefits due, and shall provide all relevant
information requested by the agency. If there is a dispute regrading the
exact amount of back pay and/or benefits, the agency shall issue a check
to [petitioner] for the undisputed amount within sixty (60) calendar days
of the date the agency determines the amount it believes to be due.
The agency shall provide training to the chief of dental services and
[petitioner's] former supervisor in the law against discrimination.
Within thirty (30) calendar days of the date the training is completed,
the agency shall submit to the Compliance Officer appropriate
documentation evidencing completion of such training.
The agency shall post at its dental labs in New York which received,
during the 1992 reorganization, the functions of the lab where
[petitioner] had worked in 1991, copies of the attached notice.
In addition, the Commission ordered the agency to pay petitioner's
attorney reasonable attorney's fees and to submit a compliance report
to the Commission within thirty (30) calendar days of the completion of
all ordered corrective action. The agency was also required to include
with its report all supporting documentation, which it was also ordered
to send to the petitioner.
On September 11, 1997, the agency submitted its compliance report to the
Commission's Office of Federal Operations. In this report, the agency
indicated that it had (1) upgraded petitioner to a GS-8, Dental Technician
effective May 2, 1993; (2) made payments of back pay and interest; (3)
provided special supervisory training on the EEO Laws and regulations
to the chief of dental services and petitioner's former supervisor;
(4) posted the violation notice at six locations within the Medical
Center from July 8, 1997 to September 6, 1997; and (5) paid petitioner's
attorney the required attorney's fees. The agency provided the Commission
with documentation to establish that it had taken the stated actions.
The agency documented that the petitioner was retroactively promoted to
the GS-8 dental technician position effective May 3, 1993. The agency
showed its back pay calculations started on April 15, 1991 and included
documentation as to the method it used to calculate the back pay award.
There is no evidence, however, that the agency gave petitioner the
opportunity to provide relevant information with regard to the agency's
calculations. In addition, the agency failed to provide evidence that
it gave petitioner a copy of its compliance report or other supporting
documentation used in calculating the back pay award. The agency,
however, did provide sufficient evidence to establish that the EEO
training was conducted, the attorney's fees were paid, and the violation
notice was posted.
In her PFE, petitioner states that she has not received the required
compliance report from the agency and challenges the agency's calculation
of back pay and benefits (TSP and other benefits). In addition,
petitioner claims that she should also be promoted to a GS-9 position
for which she was not selected on March 1993. Specifically, petitioner
claims that had the agency not discriminated against her by non-selecting
her for the GS-8 position on April 15, 1991, she would have met the
time-in-grade requirements for the GS-9 position when it was announced
on March 11, 1993. Petitioner, therefore, requests that she be promoted
retroactively to the GS-9 position with back pay.
In response to complainant's petition, the agency argues that petitioner
is not entitled to a retroactive promotion to the GS-9 level. The agency
states that the GS-8 position for which petitioner was discriminatorily
non-selected was a competitive position that did not have promotion
potential to the next grade. The agency also states that the GS-9
position to which petitioner later applied, and for which she was
determined unqualified by reason of time-in-grade requirements was also
a competitive position that did not have promotion potential to the
next grade. Therefore, the agency argues that petitioner's claim that
she should be promoted to the GS-9 position is too speculative and should
be denied. With regard to petitioner's argument that she never received
a copy of the compliance report and her dispute with the calculations
of back pay and benefits, the agency states that station officials will
provide a copy of the agency's compliance report for petitioner's review.
Furthermore, the agency states that if after reviewing the report, the
petitioner disputes the agency's calculations, the petitioner should
be required to submit another Petition describing, with particularity,
how the agency erred, as well as the specific relief requested.
The Commission's finding of discrimination in EEOC Appeal No. 01953327
requires the agency to make petitioner �whole� by restoring her to
a position where she would have been were it not for the unlawful
discrimination. Franks v. Bowman Transportation Co., 424 U.S. 747,
764 (1976). See also Albermarle Paper Co. v. Moody, 422 U.S. 405, 418
(1975). To do so, the agency was required to accomplish several actions
listed above.
With regard to petitioner's assertion that she should be retroactively
promoted to the GS-9 position for which she was not selected in March
1993, we find that this remedial relief is beyond the scope of the
Commission's underlying finding that she was subjected to a discriminatory
non-selection for promotion to a GS-8 position. Documentation submitted
indicates that promotion to the GS-9 position was accomplished by
competitive promotion procedures in March 1993, through a vacancy
announcement. To determine that petitioner would have received the GS-9
position, but for the discrimination found, would be too speculative.
With regard to petitioner's contention that the agency did not provide
her a copy of the compliance report, we find that the agency has not
complied with the Commission's previous Order. Specifically, the agency
failed to provide petitioner the compliance report or any documentation
as to how it calculated her back pay and benefit awards. As a result
of not having the agency's compliance report, petitioner makes only a
general allegation of noncompliance with regard to back pay and benefits
and does not raise specific allegations regarding back pay and benefit
calculations, thus, the Commission is unable to ascertain petitioner's
exact dispute with the agency's compliance action.
Accordingly, the agency is required to provide petitioner with a copy of
its compliance report, including detailed information on the method used
to calculate back pay, TSP contributions, other benefits, and interest.
CONCLUSION
Based on a review of the record, the submission of the parties, and for
the foregoing reasons, the Commission GRANTS the petition for enforcement
in part. The agency is ORDERED to comply as set forth in this decision
and the Order below.
ORDER
The agency is ORDERED to take and complete the following actions within
thirty (30) calendar days of the date of receipt of this decision:
The agency shall provide petitioner a copy of its compliance report
submitted to the Commission on September 11, 1997, as well as other
documentation used to calculate the back pay, interest, and other benefits
it has awarded petitioner.
Thereafter, if the petitioner still believes that the agency is not
in compliance with the Commission's Order in EEOC Appeal No. 01953327
(May 30, 1997), then she may file a new petition for enforcement with
the Commission. The petition for enforcement must be filed with the
Compliance Officer, at the address referenced in the statement entitled
�Implementation of the Commission's Decision.�
The agency shall submit evidence of compliance to the Compliance Officer
as referenced below.
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 (Q1199)
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:
March 21, 2000
Date
Carlton
M.
Hadden,
Acting
Director
Office of Federal Operations
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.