Beverly Friend, Complainant,v.Louis Caldera, Secretary, Department of the Army, Agency.

Equal Employment Opportunity CommissionNov 21, 2000
05990745 (E.E.O.C. Nov. 21, 2000)

05990745

11-21-2000

Beverly Friend, Complainant, v. Louis Caldera, Secretary, Department of the Army, Agency.


Beverly Friend v. Department of the Army

05990745

11-21-00

.

Beverly Friend,

Complainant,

v.

Louis Caldera,

Secretary,

Department of the Army,

Agency.

Request No. 05990745

Appeal No. 01984226

Agency No. 09603G0090

Hearing Nos. 110-97-8100X; 110-97-8122X

DENIAL OF REQUEST FOR RECONSIDERATION

The agency initiated a request to the Equal Employment Opportunity

Commission (EEOC or Commission) to reconsider the decision in Beverly

Friend v. Department of the Army, EEOC Appeal No. 01984226 (May 13,

1999).<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 29 C.F.R. � 1614.405(b).

After a review of the agency's request for reconsideration, the previous

decision, and the entire record, the Commission finds that the request

fails to meet the criteria of 29 C.F.R. � 1614.405(b), and it is the

decision of the Commission to deny the request. The decision in EEOC

Appeal No. 01984226 remains the Commission's final decision. Then agency

shall comply with that Order, as restated below. There is no further

right of administrative appeal on the decision of the Commission on this

request for reconsideration.

ORDER (D1199)

The agency is ORDERED to take the following remedial action:

1. The agency shall offer to retroactively promote the complainant into

one of the GM-1750-14 positions at issue or an equivalent position from

the effective date of the initial selection. The complainant shall

also be awarded back pay, seniority and other employee benefits from the

effective date of the selection, along with any incurred and reasonable

attorney's fees.

The agency shall determine the appropriate amount of back pay (with

interest, if applicable) and other benefits due complainant, pursuant

to 29 C.F.R. � 1614.501, no later than sixty (60) calendar days after

the date this decision becomes final. The complainant 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 regarding the exact amount of back pay and/or

benefits, the agency shall issue a check to the complainant for the

undisputed amount within sixty (60) calendar days of the date the

agency determines the amount it believes to be due. The complainant

may petition for enforcement or clarification of the amount in dispute.

The petition for clarification or enforcement must be filed with the

Compliance Officer, at the address referenced in the statement entitled

"Implementation of the Commission's Decision."

2. The agency shall provide the complainant with the opportunity to

attend the Armed Forces Management College as initially approved.

3. The agency shall conduct a supplemental investigation on the issue of

the complainant's entitlement to compensatory damages and shall afford the

complainant an opportunity to establish a causal relationship between the

incidents of discrimination and any pecuniary or non-pecuniary losses. See

Cobey Turner v. Department of the Interior, EEOC Appeal Nos. 01956390

and 01960518 (April 27, 1998). The complainant shall cooperate in

the agency's efforts to compute the amount of compensatory damages,

and shall provide all relevant information requested by the agency.

The agency shall issue a final decision on the issue of compensatory

damages. 29 C.F.R. � 1614.110. The supplemental investigation and

issuance of the final decision shall be completed within one hundred and

twenty (120) calendar days of the date this decision becomes final. A

copy of the final decision must be submitted to the Compliance Officer,

as referenced below.

4. The agency is directed to conduct training for the selecting

officials who were found to have discriminated against the complainant.

The agency shall address these employees' responsibilities with respect

to eliminating discrimination in the workplace.

5. The agency shall take appropriate preventative steps to ensure that

no employee is subjected to discrimination or reprisal and to ensure that

appropriate steps are taken immediately after management is notified of

any actions.

6. The agency is further directed to submit a report of compliance, as

provided in the statement entitled "Implementation of the Commission's

Decision." The report shall include supporting documentation of the

agency's calculation of back pay and other benefits due the complainant,

including evidence that the corrective action has been implemented.

POSTING ORDER (G1092)

The agency is ORDERED to post at Fort Gordon 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, and shall

remain posted for sixty (60) consecutive days, 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, Director

Office of Federal Operations

__11-21-00________________

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 the Army, Fort Gordon, supports and will comply with

such Federal law and will not take action against individuals because

they have exercised their rights under law.

The Department of the Army, Fort Gordon, has been found to have

discriminated against an employee by not selecting her for two positions

and denying her training, and, as relief, has been ordered to offer

her placement into one of the positions with back pay, provide her

the training in question, and pay provable compensatory damages.

The Department of the Army, Fort Gordon, will ensure that officials

responsible for personnel decisions and terms and conditions of employment

will abide by the requirements of all Federal equal employment opportunity

laws and will not retaliate against employees who file EEO complaints.

The Department of the Army, Fort Gordon, 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.