05a40219
03-11-2004
Donald G. Gay, Complainant, v. Hansford T. Johnson, Acting Secretary, Department of the Navy, Agency.
Donald G. Gay v. Department of the Navy
05A40219
03-11-04
.
Donald G. Gay,
Complainant,
v.
Hansford T. Johnson,
Acting Secretary,
Department of the Navy,
Agency.
Request No. 05A40219
Appeal No. 07A20089
Agency Nos. 99-44466-002; 99-44466-006
Hearing No. 110-99-8320x
DENIAL OF REQUEST FOR RECONSIDERATION
On November 13, 2003, the Department of the Navy timely initiated a
request to the Equal Employment Opportunity Commission to reconsider
the decision in Donald G. Gay v. Department of the Navy, EEOC Appeal
No. 07A20089 (October 9, 2003). 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. 07A20089 remains the Commission's final decision. There is no
further right of administrative appeal on the decision of the Commission
on this request for reconsideration. The agency is directed to comply
with the Order, below.
ORDER
The agency is ordered to take the following remedial action:
A. The agency shall determine the appropriate amount of back pay,
with interest, and other benefits due complainant, pursuant to 29
C.F.R. � 1614.501, retroactive to August 10, 1998, and continuing
until April 15, 2002, the date the AJ's decision became the agency's
final action. The agency's determination must take place no later
than 60 calendar days after the date this decision becomes final.<1>
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 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."
B. Within 60 calendar days after this decision becomes final, the
agency shall issue a check to complainant for $300,000.00, in payment
for non-pecuniary compensatory damages.
C. Within 60 calendar days after this decision becomes final, the
agency shall issue a check to complainant for $15,093.00 in payment for
attorney fees.
D. The agency shall provide EEO training to the individuals who, in
August 1998, held the following positions: the Director of the Trident
Refit Facility, complainant's first and second level supervisors and
the Light Duty Manager. This training will educate these individuals on
their duties and obligations under Section 501 of the Rehabilitation Act
of 1973. The Commission does not consider training to be a disciplinary
action.
E. The agency shall consider taking disciplinary action against
individuals who, in August 1998, held the following positions: the
Director of the Trident Refit Facility, complainant's first and second
level supervisors and the Light Duty Manager. The agency shall report
its decision. If the agency decides to take disciplinary action, it
shall identify the action taken. If the agency decides not to take
disciplinary action, it shall set forth the reason(s) for its decision
not to impose discipline.
F. 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 complainant,
including evidence that the corrective action has been implemented. The
agency shall copy the report and its supporting documentation to the
complainant.
POSTING ORDER (G0900)
The agency is ordered to post at its Trident Refit Facility, King's Bay,
Georgia, 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 (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.
STATEMENT OF COMPLAINANT'S RIGHTS ON REQUEST TO RECONSIDER
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
____03-11-04______________
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 the Rehabilitation Act of 1973, as
amended, 29 U.S.C. �� 791, 794(c), 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 DISABILITY with respect to hiring, firing,
promotion, compensation, or other terms, conditions or privilege of
employment.
The Department of the Navy's Trident Refit Facility has been found to
have discriminated against an employee when it denied him a reasonable
accommodation and failed to timely process his workers' compensation
forms. The Trident Refit Facility has been directed to remedy the employee
by, among other things, providing him with back pay, compensatory
damages, attorney's fees and other benefits commensurate with what he
would have received had he not been discriminated against. The Trident
Refit Facility will ensure that reasonable accommodations are provided
to qualified individuals with disabilities and that officials responsible
for making personnel decisions and establishing the terms and conditions
of employment will abide by the requirements of the Rehabilitation Act.
The Trident Refit Facility 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.
1We do not order complainant's reinstatement because of the AJ's
determination that complainant would most likely be unable to work again.