01A33426_r
12-02-2003
Calvin O. Lawrie, Complainant, v. Dr. James G. Roche, Secretary, Department of the Air Force, Agency.
Calvin O. Lawrie v. Department of the Air Force
01A33426
December 2, 2003
.
Calvin O. Lawrie,
Complainant,
v.
Dr. James G. Roche,
Secretary,
Department of the Air Force,
Agency.
Appeal No. 01A33426
Agency No. 9V1M00547
Hearing No. 310-A1-5314X
DECISION
Complainant initiated an appeal dated May 13, 2003, seeking a
determination as to whether the agency has fully complied with its
final order dated March 21, 2003.. Complainant's appeal is accepted in
accordance with 29 C.F.R. � 1614.504(b) and (c).
On March 21, 2003, the final order fully implemented a decision by an
EEOC Administrative Judge (AJ) finding discrimination following a hearing
pursuant to a complaint of discrimination in which complainant alleged
that he was subjected to discrimination on the bases of race (Black),
color (black), disability (asthma and sinus), and in reprisal for prior
protected activity when he received a Notice of Decision to Terminate
during his probationary period on January 14, 2000.
The agency's final order implemented the following remedies:
Complainant is entitled to backpay from the time of his termination,
January 14, 2000, through June 5, 2001, the date complainant was approved
for disability retirement by the Office of Personnel Management (OPM).
If complainant is no longer receiving such benefits and is able to
return to work, then the agency shall reinstate him to the position he
would have held but for the discrimination. This is to be completed
no later than sixty (60) calendar days after the date this decision or
any appellate decision becomes final.
The agency shall pay complainant $1,500.00 for emotional distress.
The agency shall post the attached notice (after being signed by a duly
authorized representative).
Complainant filed an appeal with the Commission alleging that the agency
failed to fully implement the AJ's February 6, 2003 decision.
In response to complainant's appeal, the agency claims that it has
fully implemented the AJ's decision. Specifically, the agency states
that the request for backpay was forwarded to the Defense Finance and
Accounting Agency (DFAS) on April 28, 2003. The agency states that it
received notification from DFAS on May 12, 2003, that it had completed
the action and was processing the payment for complainant. The agency
claims that the backpay computation worksheet, required for computation
of backpay, was not received from complainant until April 21, 2003,
thus delaying the submission of the request to DFAS. With regard to
backpay, the agency notes that complainant has not submitted evidence
that he is not still receiving disability retirement benefits; thus,
the agency explains that his backpay was limited to the time from his
termination, January 14, 2000, until June 5, 2001. Additionally, the
agency avers that the $1,500.00 awarded to complainant for emotional
distress was scheduled for payment on April 18, 2003. Finally, the
agency states the posting of the required notice began on April 2, 2003,
and will remain posted until July 2, 2003.
The record contains a May 21, 2003 memorandum from Person A, Employee
Relations, stating that voucher #130038247 was prepared on April 18,
2003 in the amount of $1,500.00, scheduled to be paid on April 18, 2003.
Person A also stated that the initial request for payment of complainant's
backpay was forwarded to DFAS on April 28, 2003. Person A stated that
notification was received from DFAS on May 12, 2003, that they had
completed the action and were processing his payment. Finally, Person
A stated that the requisite notice was posted on April 2, 2003 and will
remain posted until July 2, 2003.
The record contains an IAPS computer printout showing that a check for
$1,500.00 was prepared for complainant to be paid on April 18, 2003.
Additionally, the record contains a copy of a Backpay Computation
Worksheet completed and signed by complainant on April 21, 2003.
Upon review, we find that complainant failed to show that the agency is
in non-compliance with its March 21, 2003 agency decision. Complainant
acknowledges, in an untimely submission, that he has received the
backpay award. The Commission further agrees with the agency's position
that since complainant has not presented evidence that he is not still
receiving disability retirement benefits, the agency is not required to
reinstate complainant. Additionally, the agency has demonstrated that it
processed a voucher in the amount of $1,500.00 for payment to complainant
on April 18, 2003, in accordance with the AJ's decision awarding that
amount for compensatory damages. Complainant has not claimed that he did
not receive the compensatory damage award. Finally, the agency provides
a statement from an Employee Relations specialist that the requisite
notice was posted beginning April 2, 2003. Complainant does not argue
that the required notice was not posted. Complainant failed to note
a specific remedy required by the agency's March 21, 2003 decision that
the agency has not implemented.
Therefore, we find that complainant failed to show that the agency has
not complied with the March 21, 2003 agency decision.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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 (S0900)
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. If you
file a request to reconsider and also file a civil action, 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
December 2, 2003
__________________
Date