Corinne Zupanick, Petitioner,v.John Ashcroft, Attorney General, Department of Justice, Agency.

Equal Employment Opportunity CommissionApr 14, 2004
04A30024 (E.E.O.C. Apr. 14, 2004)

04A30024

04-14-2004

Corinne Zupanick, Petitioner, v. John Ashcroft, Attorney General, Department of Justice, Agency.


Corinne Zupanick v. Department of Justice

04A30024

04-14-04

.

Corinne Zupanick,

Petitioner,

v.

John Ashcroft,

Attorney General,

Department of Justice,

Agency.

Petition No. 04A30024

Appeal No. 01993393

Agency No. P-96-8906

Hearing No. 360-97-8249X

DECISION ON A PETITION FOR ENFORCEMENT

On March 11, 2003, the Equal Employment Opportunity Commission (EEOC

or Commission) docketed a petition for enforcement to examine the

enforcement of an order set forth in Corinne Zupanick v. Department of

Justice, EEOC Appeal No. 01993393 (January 12, 2001). This petition

for enforcement is accepted by the Commission pursuant to 29 C.F.R. �

1614.503. Petitioner had filed a complaint in which she alleged that the

agency discriminated against her on the bases of race (Caucasian), sex

(Female), disability (regarded as disabled), and in reprisal for prior

EEO activity. In EEOC Appeal No. 01993393, the Commission found that

complainant had been discriminated and retaliated against concerning

her termination from the agency.

Petitioner has alleged that the agency failed to fully comply with the

Commission's order in that it has not (1) based reinstatement and backpay

on complainant's achievement of a grade 14 position in July 1999 (or

at least by the time she was reinstated in 2001); (2) restored all sick

leave and annual leave associated with backpay; (3) paid complainant for

out-of-pocket moving and re-location expenses associated with termination

and reinstatement; (4) immediately verified that required EEO training has

been provided to all supervisors, managers, and human resource personnel

at its FCI - Three Rivers facility; (5) submitted a compliance report

and served a copy of the report on complainant through counsel; and (6)

paid reasonable attorney's fees incurred by complainant's counsel in

the process of obtaining agency compliance.

In its April 15, 2003 certified response to complainant's counsel,

the agency indicates that it articulated, through its March 14, 2001

letter to complainant's counsel, that it had reinstated complainant at

the GS-13 level, effective April 8, 2001, with direction that complainant

report to the Human Resource Department. The agency further indicates

that complainant, then choosing to take extended leave, did not report

April 2001. The agency specifically notes that complainant was reinstated

as a Clinical Psychologist at the GS-13, step 4 pay-level, as of the

effective date of her termination; paid $158,828.20 in backpay and

interest; paid $105,264.09 in attorney's fees on June 12, 2001; paid

pecuniary damages in the amount of $5,826.00; and paid non-pecuniary

damages in the amount of $50,000.00 on April 11, 2001. Further, the

agency asserts that affected managers completed EEO training, consistent

with the order in EEOC Appeal No. 01993393. Also, the agency noted that

it posted the required notice, stating that a Title VII violation had

occurred at the institution at issue.

However, concerning leave restoration, the agency argues that the leave

complainant elected to use between the effective date of reinstatement,

April 8, 2001, and complainant's return to work on October 9, 2001, was

properly deducted from the restored leave balances she had as a result of

the finding of discrimination when terminated. Regarding complainant's

request for out-of-pocket moving and re-location expenses associated with

termination and reinstatement, the agency strongly responds that this goes

well beyond the scope of the order contained in complainant's prior EEOC

decision. Specifically, the agency asserts that the Administrative Judge,

at the time of the hearing, was aware that complainant had relocated

based upon the record in the case. The agency further asserts that this

information would have also been taken into account by the Commission

in our previous decision, affirming the Administrative Judge's award of

pecuniary and non-pecuniary compensatory damages.

With respect to complainant being promoted to a GS-14 position at

the institution, the agency maintains that a promotion to a GS-14 is

"not in the natural line of progression for complainant." The agency

specifically notes that the record does not demonstrate that complainant

had better knowledge, experience, and skills than her chosen comparator;

seniority is not the pivotal reason for promotion to a GS-14 position

at the facility in question; complainant was not readily available to

relocate if she had previously competed and now been selected for a GS-14

at another agency facility; and finally, that promotion to a GS-14 was

not merely perfunctory in this case.

The record reflects that the agency provided documentation affording

petitioner an explanation of its calculations for back pay, with interest,

and benefits due. The agency also submitted a compliance report to

the Commission.

Where discrimination has been found, the Commission orders corrective

action to make a complainant whole, that is, to restore him or her to the

position that she would have been in were it not for the discriminatory

conduct by the agency, through such means as reinstatement, appropriate

back pay, and training for supervisors. Franks v. Bowman Transportation

Co., 424 U.S. 747, 764 (1976); see also Albemarle Paper Co. v. Moody, 422

U.S. 405, 418 (1975). In this case, we find that the record demonstrates

that complainant's comparator is not similarly situated to her such that

complainant would have been promoted to the GS-14 level. The record

reveals that this comparator served as GS-13, Chief Psychologist,

at the FCI - Three Rivers, Texas while complainant was employed as a

Clinical Psychologist by the agency at that very same facility. Further,

complainant's comparator competed and was selected for a GS-14 Chief

Psychologist position for the FCI - Fairton, New Jersey facility.

Also, the record shows that this comparator clearly has broader

work-related experience than complainant. The record shows that no

Clinical Psychologist employed by the agency at its FYI - Three Rivers

facility has achieved a GS-14 grade while stationed at FYI - Three Rivers.

The agency's argument that seniority, alone, is not a determining factor

as to whether complainant could have progressed to a GS-14 position at

the FYI - Three Rivers facility is persuasive.

Concerning leave, the Commission determines that complainant elected

to use extensive leave between the effective date of reinstatement,

April 8, 2001, and the date of complainant's actual return to work on

October 9, 2001. We agree with the agency that the leave requested

for that time was properly deducted from her restored leave balances.

Nor was the leave she used between April and October 2001the result of

the unlawful discrimination and should not be restored to complainant.

Regarding complainant's request for out-of-pocket moving and re-location

expenses associated with termination and reinstatement, we find that

complainant should have requested these expenses much earlier in the

administrative process, that is, when request for pecuniary damages were

assessed by the Administrative Judge and certainly before the issuance

of the Commission's previous decision. In finding that neither the

Administrative Judge nor the Commission (in its previous decision)

specifically ordered out-of-pocket moving and re-location expenses

associated with termination and reinstatement, we, again, will order

no further award of compensatory damages be made by the agency in

this matter. Moreover, we cannot change the result of a prior decision

or enlarge or diminish the relief ordered but may further explain the

meaning or intent of the prior decision. See 29 C.F.R. � 1614.503.

Based on correspondence contained in the record before us as well as

documents submitted to the Compliance Officer, we conclude that the

matters identified, above, by petitioner's counsel have been resolved

and that the agency has fully complied with our Order in EEOC Appeal

No. 01993393.

CONCLUSION

Based upon a review of the record, the Commission finds that the agency

has complied with the Order in Corinne Zupanick v. Department of Justice,

EEOC Appeal No. 01993393 (January 12, 2001) and EEOC Petition No. 04A30024

(February 26, 1999). Accordingly, the Commission denies complainant's

petition for enforcement.

STATEMENT OF PETITIONER'S RIGHTS

PETITIONER'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

____04-14-04______________

Date