Edna Gatewood, Complainant,v.Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity CommissionMar 21, 2000
04a00009 (E.E.O.C. Mar. 21, 2000)

04a00009

03-21-2000

Edna Gatewood, Complainant, v. Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.


Edna Gatewood, )

Complainant, )

)

v. ) Petition No. 04A00009

Togo D. West, Jr., ) Appeal No. 01953327

Secretary, ) Hearing No. 160-94-8617X

Department of Veterans Affairs, ) Agency No. 94-926

Agency. )

____________________________________)

DECISION ON PETITION FOR ENFORCEMENT

The Equal Employment Opportunity Commission (hereinafter, EEOC or

Commission) has docketed a petition for enforcement (PFE) from Edna

Gatewood (hereinafter, petitioner) requesting enforcement of the

Commission's Order in Gatewood v. Department of Veterans Affairs, EEOC

Appeal No. 01953327 (May 30, 1997).<1> This petition is accepted by the

Commission in accordance with EEOC Regulation 29 C.F.R. � 1614.503(a).

The issue presented in this petition is whether the agency has fully

complied with the Order of the Commission set forth in EEOC Appeal

No. 01953327.

In EEOC Appeal No. 01953327 (May 30, 1997), the Commission found that

the petitioner prevailed on her allegation of being discriminatorily

denied a GS-8 promotion, the Commission reversed the FAD and ordered

the agency to take the following remedial action:

(1) Within thirty (30) calendar days of the date this decision becomes

final, the agency shall make the [petitioner's] promotion to a GS-8

dental technician position retroactive to April 15, 1991, with full

seniority, back pay, interest and all other benefits incident thereto.

Within sixty (60) calendar days of the date this decision becomes final,

the agency shall determine the appropriate amount of back pay, interest

and other benefits due petitioner, pursuant to 29 C.F.R. � 1614.501.

The [petitioner] 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 regrading the

exact amount of back pay and/or benefits, the agency shall issue a check

to [petitioner] for the undisputed amount within sixty (60) calendar days

of the date the agency determines the amount it believes to be due.

The agency shall provide training to the chief of dental services and

[petitioner's] former supervisor in the law against discrimination.

Within thirty (30) calendar days of the date the training is completed,

the agency shall submit to the Compliance Officer appropriate

documentation evidencing completion of such training.

The agency shall post at its dental labs in New York which received,

during the 1992 reorganization, the functions of the lab where

[petitioner] had worked in 1991, copies of the attached notice.

In addition, the Commission ordered the agency to pay petitioner's

attorney reasonable attorney's fees and to submit a compliance report

to the Commission within thirty (30) calendar days of the completion of

all ordered corrective action. The agency was also required to include

with its report all supporting documentation, which it was also ordered

to send to the petitioner.

On September 11, 1997, the agency submitted its compliance report to the

Commission's Office of Federal Operations. In this report, the agency

indicated that it had (1) upgraded petitioner to a GS-8, Dental Technician

effective May 2, 1993; (2) made payments of back pay and interest; (3)

provided special supervisory training on the EEO Laws and regulations

to the chief of dental services and petitioner's former supervisor;

(4) posted the violation notice at six locations within the Medical

Center from July 8, 1997 to September 6, 1997; and (5) paid petitioner's

attorney the required attorney's fees. The agency provided the Commission

with documentation to establish that it had taken the stated actions.

The agency documented that the petitioner was retroactively promoted to

the GS-8 dental technician position effective May 3, 1993. The agency

showed its back pay calculations started on April 15, 1991 and included

documentation as to the method it used to calculate the back pay award.

There is no evidence, however, that the agency gave petitioner the

opportunity to provide relevant information with regard to the agency's

calculations. In addition, the agency failed to provide evidence that

it gave petitioner a copy of its compliance report or other supporting

documentation used in calculating the back pay award. The agency,

however, did provide sufficient evidence to establish that the EEO

training was conducted, the attorney's fees were paid, and the violation

notice was posted.

In her PFE, petitioner states that she has not received the required

compliance report from the agency and challenges the agency's calculation

of back pay and benefits (TSP and other benefits). In addition,

petitioner claims that she should also be promoted to a GS-9 position

for which she was not selected on March 1993. Specifically, petitioner

claims that had the agency not discriminated against her by non-selecting

her for the GS-8 position on April 15, 1991, she would have met the

time-in-grade requirements for the GS-9 position when it was announced

on March 11, 1993. Petitioner, therefore, requests that she be promoted

retroactively to the GS-9 position with back pay.

In response to complainant's petition, the agency argues that petitioner

is not entitled to a retroactive promotion to the GS-9 level. The agency

states that the GS-8 position for which petitioner was discriminatorily

non-selected was a competitive position that did not have promotion

potential to the next grade. The agency also states that the GS-9

position to which petitioner later applied, and for which she was

determined unqualified by reason of time-in-grade requirements was also

a competitive position that did not have promotion potential to the

next grade. Therefore, the agency argues that petitioner's claim that

she should be promoted to the GS-9 position is too speculative and should

be denied. With regard to petitioner's argument that she never received

a copy of the compliance report and her dispute with the calculations

of back pay and benefits, the agency states that station officials will

provide a copy of the agency's compliance report for petitioner's review.

Furthermore, the agency states that if after reviewing the report, the

petitioner disputes the agency's calculations, the petitioner should

be required to submit another Petition describing, with particularity,

how the agency erred, as well as the specific relief requested.

The Commission's finding of discrimination in EEOC Appeal No. 01953327

requires the agency to make petitioner �whole� by restoring her to

a position where she would have been were it not for the unlawful

discrimination. Franks v. Bowman Transportation Co., 424 U.S. 747,

764 (1976). See also Albermarle Paper Co. v. Moody, 422 U.S. 405, 418

(1975). To do so, the agency was required to accomplish several actions

listed above.

With regard to petitioner's assertion that she should be retroactively

promoted to the GS-9 position for which she was not selected in March

1993, we find that this remedial relief is beyond the scope of the

Commission's underlying finding that she was subjected to a discriminatory

non-selection for promotion to a GS-8 position. Documentation submitted

indicates that promotion to the GS-9 position was accomplished by

competitive promotion procedures in March 1993, through a vacancy

announcement. To determine that petitioner would have received the GS-9

position, but for the discrimination found, would be too speculative.

With regard to petitioner's contention that the agency did not provide

her a copy of the compliance report, we find that the agency has not

complied with the Commission's previous Order. Specifically, the agency

failed to provide petitioner the compliance report or any documentation

as to how it calculated her back pay and benefit awards. As a result

of not having the agency's compliance report, petitioner makes only a

general allegation of noncompliance with regard to back pay and benefits

and does not raise specific allegations regarding back pay and benefit

calculations, thus, the Commission is unable to ascertain petitioner's

exact dispute with the agency's compliance action.

Accordingly, the agency is required to provide petitioner with a copy of

its compliance report, including detailed information on the method used

to calculate back pay, TSP contributions, other benefits, and interest.

CONCLUSION

Based on a review of the record, the submission of the parties, and for

the foregoing reasons, the Commission GRANTS the petition for enforcement

in part. The agency is ORDERED to comply as set forth in this decision

and the Order below.

ORDER

The agency is ORDERED to take and complete the following actions within

thirty (30) calendar days of the date of receipt of this decision:

The agency shall provide petitioner a copy of its compliance report

submitted to the Commission on September 11, 1997, as well as other

documentation used to calculate the back pay, interest, and other benefits

it has awarded petitioner.

Thereafter, if the petitioner still believes that the agency is not

in compliance with the Commission's Order in EEOC Appeal No. 01953327

(May 30, 1997), then she may file a new petition for enforcement with

the Commission. The petition for enforcement must be filed with the

Compliance Officer, at the address referenced in the statement entitled

�Implementation of the Commission's Decision.�

The agency shall submit evidence of compliance to the Compliance Officer

as referenced below.

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).

COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (Q1199)

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:

March 21, 2000

Date

Carlton

M.

Hadden,

Acting

Director

Office of Federal Operations

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.