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