04990035
12-27-2001
James Rael, Petitioner, v. Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.
James Rael v. Veteran's Affairs
04990035
12/27/01
.
James Rael,
Petitioner,
v.
Anthony J. Principi,
Secretary,
Department of Veterans Affairs,
Agency.
Petition No. 04990035
Appeal No. 01972659
Agency No. 95-0856
Hearing No. 350-95-8339X
DECISION ON A PETITION FOR ENFORCEMENT
On May 11, 1999, the Equal Employment Opportunity Commission (EEOC or
Commission) docketed a petition for enforcement to examine the enforcement
of an order set forth in James Rael v. Department of Veteran's Affairs,
EEOC Appeal No. 01972659 (December 10, 1998). This petition for
enforcement is accepted by the Commission pursuant to 29 C.F.R. �
1614.503.
Petitioner filed a complaint in which he alleged that the agency
discriminated against him on the basis of age (DOB: 2/5/30) when he
was not selected for one of two position as Food Service Worker Foreman
on July 12, 1994. Petitioner appealed the agency's final decision to
the Commission. In EEOC Appeal No. 01972659, the Commission found that
complainant established by a preponderance of the evidence that he was
discriminated against on the basis of age when he was not selected for
the position of Food Service Worker Foreman.
As relief, the order specified that the agency offer complainant a Food
Service Worker Foreman position, or a substantially equivalent position,
with full back pay and all benefits owed, retroactive to the effective
date of the selection. The matter was assigned to a Compliance Officer
and docketed as Compliance No. 06990362 on December 12, 1998.
The record reveals complainant retired from the agency on February 28,
1997. In its report to the Compliance Officer, the agency reported
that it had retroactively promoted complainant to the Food Service
Worker position, and paid him back pay from the effective date of the
selection until his retirement. However, the agency contended that
in light of complainant's voluntary retirement during the pendency
of his complaint, as well as his failure to file a complaint alleging
a constructive discharge, to offer complainant a Food Service Worker
Foreman position would be inappropriate and contrary to the principles
of make whole relief.
ANALYSIS AND FINDINGS
As a general proposition, a complainant's retirement serves to limit
an agency's obligation to provide certain forms of relief beyond
the date of retirement. See Harrell v. Department of the Army, EEOC
Request No. 05940652 (May 24, 1995). The primary exception to this
is when the retirement is not voluntary, but is shown to constitute a
constructive discharge. In this case, complainant never challenged his
retirement in the complaint at issue, nor has he presented evidence of
doing so in a separate complaint. The Commission has required that a
complainant provide some notice of a constructive discharge claim at
a reasonable point in the processing of the complaint in order for it
to be considered. See Garcia v. Department of the Navy, EEOC Request
No. 05960023 (July 9, 1997). In this case, complainant never established
that his retirement constituted a constructive discharge. Therefore,
the Commission will treat complainant's decision to retire in February
1997 as having been voluntary.
Based on the foregoing, we find that, even if complainant had been
promoted to Food Service Worker position in 1994, he would have only
served at that level until his voluntary retirement in 1997. For that
reason, we find that the agency was only required to retroactively
reinstate complainant to the Food Service Worker position until his
retirement in 1997, which it has done.
The most relief any successful complainant is entitled to receive is "make
whole" relief. See Albemarle Paper Co. v. Moody, 422 U.S. 405, 418-419
(1975) (defining "make whole" relief as that which places an individual,
as near as may be, in the situation he or she would have been in absent
the discrimination). In this regard, we find that the relief the agency
has provided complainant, constitutes "make whole" relief.
CONCLUSION
Based upon a review of the record herein, and the submissions of the
parties, the Commission finds that the agency has compiled with the
previous Order set forth in James Rael v. Department of Veterans Affairs,
EEOC Appeal NO. 01972659 ( December 10, 1998).
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
12/27/01
Date