01994471_r
05-31-2001
Arnett Hardnick, Complainant, v. Lawrence J. Delaney, Acting Secretary, Department of the Air Force, Agency.
Arnett Hardnick v. Department of the Air Force
01994471
May 31, 2001
.
Arnett Hardnick,
Complainant,
v.
Lawrence J. Delaney,
Acting Secretary,
Department of the Air Force,
Agency.
Appeal No. 01994471
Agency No. AR000960612
DECISION
Complainant filed a timely appeal with this Commission from an agency
decision dated April 13, 1999, dismissing her complaint of unlawful
employment discrimination in violation of Title VII of the Civil Rights
Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq. In her
complaint, complainant alleged that she was subjected to discrimination
on the bases of race, color, and in reprisal for prior EEO activity when
she was separated from nonappropriated fund employment as a Purchasing
Agent, NF-1105-III, through a reduction-in-force (RIF).
The record indicates that after the agency accepted and investigated
the above-stated complaint, complainant was provided a copy of
the investigative report and requested a hearing before an EEOC
Administrative Judge (AJ). After a hearing, the AJ found that although
complainant failed to establish discrimination based on race or color,
the preponderance of the evidence showed that the agency action was taken
based on retaliatory animus for complainant's prior EEO activity. In an
October 28, 1996 decision, the agency concurred and found discrimination
based on reprisal in that the agency failed to offer complainant another
position in connection with the RIF. As relief, the agency ordered
that the agency �reaccomplish� the RIF with regard to complainant,
and if upon reaccomplishment complainant accepted a placement offer,
she should then be placed retroactive to January 16, 1995, with back pay
and interest. The Order also stated that �complainant shall provide any
information requested by management as reasonably necessary to determine
the amount of relief due.� After the agency received what it deemed an
inadequate response from complainant from five attempts (from November
1996 to March 1998) to comply with the Order, all of which specifically
included a request for information related to calculating complainant's
relief, the agency dismissed the complaint for failure to cooperate
under 29 C.F.R. � 1614.107(a)(7). On appeal, complainant contends that
she should be offered a number of positions as placement other than the
one offered by the agency in its attempts to comply with the Order.
Upon review, we find that complainant's complaint was improperly
dismissed. In the present case, the record shows that the agency's
October 28, 1996 decision made a finding of discrimination related to
complainant's reprisal claim, making it improper for the agency to later
dismiss the complaint under the provisions of 29 C.F.R. � 1614.107(a).
For this reason we reverse the agency's decision and remand the matter to
the agency for further action as ordered in the agency's October 28, 1996
decision. We note that only if complainant makes a claim pursuant to EEOC
Regulation 29 C.F.R. � 1614.504 that the agency is not in compliance with
the relief granted in its final decision may the Commission appropriately
address compliance related issues. As there is no indication in the
record that complainant has made such a claim under EEOC Regulations,
we do not address agency compliance in the present appeal.
Accordingly, the agency's April 13, 1999 dismissal of complainant's
complaint is hereby REVERSED. The complaint is REMANDED to the agency for
further processing in accordance with this decision and the Order below.
ORDER
Within sixty (60) calendar days from the date this decision becomes final,
the agency shall implement the relief ordered in the agency's October
28, 1996 decision. A copy of evidence of agency compliance with that
decision must be sent to the Compliance Officer referenced herein.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0900)
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 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 29 C.F.R. � 1614.409.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
The Commission may, in its discretion, reconsider the decision in this
case if the complainant or the agency submits a written request containing
arguments or evidence which tend to establish 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.
Requests to reconsider, with supporting statement or brief, must be filed
with the office of federal operations (OFO) within thirty (30) calendar
days of receipt of this decision or within twenty (20) calendar days of
receipt of another party's timely request for reconsideration. See 29
C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for
29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999). All requests
and arguments must be submitted to the Director, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. In the absence of a legible postmark, the
request to reconsider shall be deemed timely filed if it is received by
mail within five days of the expiration of the applicable filing period.
See 29 C.F.R. � 1614.604. The request or opposition must also include
proof of service on the other party.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely, unless extenuating circumstances
prevented the timely filing of the request. Any supporting documentation
must be submitted with your request for reconsideration. The Commission
will consider requests for reconsideration filed after the deadline only
in very limited circumstances. See 29 C.F.R. � 1614.604(c).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (R0900)
This is a decision requiring the agency to continue its administrative
processing of your complaint. However, if you wish to file a civil
action, you have the right to file such action in an appropriate United
States District Court within ninety (90) calendar days from the date
that you receive this decision. 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, Director
Office of Federal Operations
May 31, 2001
__________________
Date