04A30014
03-19-2003
Barbara R. Rosenthal, Petitioner, v. John Ashcroft, Attorney General, Department of Justice, Agency.
Barbara R. Rosenthal v. Department of Justice
04A30014
March 19, 2003
.
Barbara R. Rosenthal,
Petitioner,
v.
John Ashcroft,
Attorney General,
Department of Justice,
Agency.
Petition No. 04A30014
Request No. 05981166
Appeal No. 01960791
Agency No. I-93-6268
DECISION ON A PETITION FOR ENFORCEMENT
On December 18, 2002, the Equal Employment Opportunity Commission (EEOC or
Commission) docketed a petition for enforcement to examine the enforcement
of an order set forth in Barbara R. Rosenthal v. Department of Justice,
EEOC Appeal No. 05981166 (July 14, 2000). This petition for enforcement
is accepted by the Commission pursuant to 29 C.F.R. � 1614.503.
Petitioner filed a complaint in which she alleged that the agency
discriminated against her on the basis of disability. In EEOC Appeal
No. 01960791, the Commission found disability discrimination but awarded
petitioner relief which included neither reinstatement nor back pay
and benefits. Petitioner requested reconsideration, and in EEOC Request
No. 05981166, the Commission expanded the relief awarded to petitioner to
include reinstatement and back pay and benefits. The matter was assigned
to a Compliance Officer and docketed as Compliance No. 06A01596 on July
14, 2000.
On May 3, 2002, petitioner submitted the petition for enforcement at
issue, amended by a second filing dated May 31, 2002. Petitioner contends
that the agency has failed to take the following actions with regard to
back benefits:
Petitioner states that she has never been provided with adequate
documentation from which to determine whether her retroactive
contributions to the Thrift Savings Plan (TSP) have been properly
credited, or that she has been properly credited for lost earnings.
Petitioner states that she has been advised by the National Finance
Center (NFC) that her agency payroll office must directly request such
corrections to be made, and must submit the calculations showing what
amounts are to be credited. Petitioner states that the agency payroll
office has persisted in merely forwarding her requests for correction
to the NFC, despite the fact that doing so will not accomplish the
corrections to petitioner's account.
Petitioner states that when she was reinstated, she elected to pay
retroactive health insurance premiums, as a result of which her date of
benefit entitlement is January 1993. Petitioner further states that while
the NFC payroll system reflects the correct date, the Blue Cross/Blue
Shield (BCBS) Federal Enrollment Center shows an entitlement date of
July 2000, when petitioner acquired coverage through her interim employer.
Petitioner states that she spoke with a BCBS representative, who advised
her that only her agency payroll office can request a correction,
because only the payroll office has proof that the required premiums
have been paid.
Petitioner states that she has never been provided with adequate
documentation from which to determine whether her Civil Service Retirement
System (CSRS) account has been properly credited for the years 1993
through 2000. Petitioner states that her pay slips do not reflect any
contributions to CSRS prior to December 31, 2000.
The agency did not reply to the petition for enforcement.
Discrimination having been found, the agency must place petitioner as
near as possible to the status she would have but for the discrimination.
See, e.g., Franks v. Bowman Transportation Co., 424 U.S. 747, 764 (1976);
Adesanya v. U.S. Postal Service, 01933395 (July 21, 1994). In furtherance
of that goal, the Commission ordered the agency to tender back pay and
benefits to petitioner. Upon review of the petition for enforcement and
the compliance file, The Commission finds that the agency has failed
to take the steps required to secure petitioner's back benefits with
regard to TSP and CSRS contributions and lost earnings, and with regard
to her health benefits status, despite petitioner's repeated requests
for assistance. The petition for enforcement therefore is GRANTED.
ORDER
The agency is ORDERED to take the following remedial action:
Within fifteen (15) calendar days of the date it receives this decision,
the agency shall contact the National Finance Center to request
corrections to complainant's Thrift Savings Plan account, including both
retroactive contributions and lost earnings. The agency shall have at
hand the necessary calculations to assist the National Finance Center
in this matter.
Within fifteen (15) calendar days of the date it receives this decision,
the agency shall contact the Blue Cross/Blue Shield Federal Enrollment
Center to request correction of petitioner's health benefits entitlement
status. The agency shall have at hand the necessary proof to establish
that petitioner has paid her premiums for the period in question.
Within fifteen (15) calendar days of the date it receives this decision,
the agency shall ascertain the status of petitioner's CSRS account,
and shall provide petitioner with documentation showing that appropriate
corrections to contributions and earnings have been made in accordance
with the Commission's order in EEOC Request No. 05981166.
ATTORNEY'S FEES (H0900)
If complainant has been represented by an attorney (as defined by
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 (K0501)
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)
(1994 & Supp. IV 1999). 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.
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
March 19, 2003
__________________
Date