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.