Howard Tripp, Complainant,v.F. Whitten Peters, Secretary, Department of the Air Force, (Kelly Air Force Base), Agency.

Equal Employment Opportunity CommissionDec 21, 2000
05990293 (E.E.O.C. Dec. 21, 2000)

05990293

12-21-2000

Howard Tripp, Complainant, v. F. Whitten Peters, Secretary, Department of the Air Force, (Kelly Air Force Base), Agency.


Howard Tripp v. Dept. of the Air Force

05990293

December 21, 2000

.

Howard Tripp,

Complainant,

v.

F. Whitten Peters,

Secretary,

Department of the Air Force,

(Kelly Air Force Base),

Agency.

Request No. 05990293

Appeal No. 01974396

Agency No. KHOF900222

Hearing No. 360-96-8566X

DENIAL OF REQUEST FOR RECONSIDERATION

The agency has initiated a request to the Equal Employment Opportunity

Commission (EEOC or Commission) to reconsider the decision in Howard

Tripp v. Dept. of the Air Force, EEOC Appeal No. 01974396 (November

24, 1998).<1> 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).

In the Commission's previous decision, we initially noted that it

appeared that the agency had received the Administrative Judge's (AJ)

Recommended Decision on February 14, 1997, and the agency's final

agency decision (FAD), was issued on April 21, 1997. Accordingly, the

previous decision queried whether the agency issued its FAD within the

sixty day time period provided by 29 C.F.R. � 1614.110. Nonetheless,

the previous decision continued to consider the merits of the case.<2>

The previous decision concluded that as the AJ's Recommended Decision

summarized the relevant facts and referenced the appropriate regulations,

policies and laws, there was no basis upon which to disturb the AJ's

findings of discrimination on the bases of race, color and age. As a

result, the Commission's decision affirmed the FAD's conclusion that

complainant was not discriminated against on the basis of reprisal,

and reversed the FAD to the extent that it concluded that complainant

was not discriminated against on the bases of race, color and age.

In its request, the agency contends that the previous decision involved

clearly erroneous interpretations of facts and laws. The agency argues,

for example, that complainant failed to provide credible evidence

establishing that the agency's articulated reasons for decertifying him

as a Team Chief and demoting him to a lower grade were a pretext for age,

race and color discrimination. We find, however, that the agency has

not presented any evidence or argument not already considered by the

Commission inasmuch as the agency's request essentially restates the

arguments previously made before the AJ and the Commission.

Thus, after a review of the contentions in the agency's request for

reconsideration regarding the merits of the claim, the previous decisions,

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. 01974396

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.

ORDER (D1199)

To the extent it has not already done so, the agency is ORDERED to take

the following remedial action:

1. The agency shall retroactively reinstate complainant to an Electronics

Mechanic Foreman, WS-2604-09, or a substantially equivalent position

should such a position no longer exist at Kelly Air Force Base, effective

October 22, 1989, the date he was demoted from the Electronics Mechanic

Foreman position. Complainant shall also be awarded back pay from October

22, 1989, until the day complainant either returns to work for the agency,

or turns down an offer of employment from the agency. Complainant

shall also receive applicable seniority, within grade increases,

cost of living increases, restoration of vacation and sick leave,

and other leave benefits, and other employee benefits (including any

required recalculation of pension and other retirement benefits) from

the relevant dates complainant is retroactively reinstated.

The agency shall determine the appropriate amount of back pay (with

interest, if applicable) and other benefits due complainant, pursuant to

29 C.F.R. � 1614.501, no later than sixty (60) calendar days after the

date this decision becomes final. 5 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 sixty (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."

2. To the extent that any of the responsible management officials

are still employed with the agency, the agency is directed to conduct

training for such management officials. The agency shall address these

employees' responsibilities with respect to eliminating discrimination

in the workplace.

3. 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.

POSTING ORDER (G0900)

The agency is ordered to post at its Kelly Air Force Base, Texas,

facility 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.

IMPLEMENTATION OF THE COMMISSION'S DECISION (K0900)

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)(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 29 C.F.R. � 1614.409.

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

December 21, 2000

__________________

Date

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 Title VII of the Civil Rights Act of 1964, as amended, 42

U.S.C. � 2000e et seq. and the Age Discrimination in Employment Act of

1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. has occurred at Kelly

Air Force Base, Texas (hereinafter "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 PHYSICAL or MENTAL DISABILITY with respect

to hiring, firing, promotion, compensation, or other terms, conditions

or privileges of employment.

The facility supports and will comply with such Federal law and will

not take action against individuals because they have exercised their

rights under law.

The facility was found to have unlawfully discriminated against the

individual affected by the Commission's findings on the bases of race

(Black), color (black) and age (59), after unlawfully demoting and

forcing this individual to retire. The agency shall therefore remedy the

discrimination by reinstating his employment retroactive to October 22,

1989, the date he was demoted, providing him with back pay (and applicable

interest), from October 22, 1989, until the date he either recommences

employment with the agency, or turns down an offer of employment;

restoring and providing applicable benefits (including any required

recalculation of pension and other retirement benefits); and providing

training on equal employment opportunity law in the federal workplace to

relevant management officials who are still employed with the agency. The

facility will ensure that officials responsible for personnel decisions

and terms and conditions of employment will abide by the requirements

of all Federal equal employment opportunity laws.

The 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

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 29 C.F.R. Part 1614 in deciding the

present appeal. The regulations, as amended, may also be found at the

Commission's website at www.eeoc.gov.

2 In its request for reconsideration, the agency initially contends

that its FAD was issued in a timely manner. A review of the record

now establishes that the agency received the Administrative Judge's

Recommended Decision on February 20, 1997, and the agency's FAD, issued

on April 21, 1997, was issued on the sixtieth day following its receipt.

Thus, contrary to our previous statement that the FAD appeared to have

been issued in an untimely manner, the Commission finds that it was

timely issued. See 29 C.F.R. � 1614.110. Nonetheless, as noted above,

the previous decision addressed the merits of this matter and, thus, the

agency's initial contentions regarding timeliness are not dispositive.