05A30341
03-18-2003
Jules O'Laco, Complainant, v. Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.
Jules O'Laco v. Department of Veterans Affairs
05A30341
March 18, 2003
.
Jules O'Laco,
Complainant,
v.
Anthony J. Principi,
Secretary,
Department of Veterans Affairs,
Agency.
Request No. 05A30341
Appeal No. 07A10089
Agency No. 961032
Hearing No. 340-97-3452X
DENIAL OF REQUEST FOR RECONSIDERATION
Jules O'Laco (complainant) timely initiated a request to the Equal
Employment Opportunity Commission (EEOC or Commission) to reconsider
the decision in Jules O'Laco v. Department of Veterans Affairs, EEOC
Appeal No. 07A10089 (November 18, 2002). Complainant alleged that he
was discriminated against on the bases of his age (70 years old) and sex
(male) in violation of Title VII of the Civil Rights Act of 1964 (Title
VII), 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. when
he was not converted from temporary to permanent employment in January
1994 and his temporary employment was not renewed in January 1996.
Since the agency accepted the Administrative Judge's finding of sex
and age discrimination, and agreed to provide the relief ordered by the
Administrative Judge with the exception of the amount of the non-pecuniary
damages award, the issue on appeal was limited to the proper amount
of non-pecuniary damages. In our previous decision, we reduced the
Administrative Judge's award of $187,500.00 in non-pecuniary damages to
$80,000.00 in non-pecuniary damages. It is from our previous decision,
that complainant now requests reconsideration. 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 complainant'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. 07A10089 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
The agency is ordered to take the following remedial action, to the
extent it has not already done so:
1. Within 30 days of the date this decision becomes final, the agency
shall pay complainant $80,000.00 in non-pecuniary damages.
Within 30 calendar days of this decision becoming final, the agency
shall make an unconditional offer to place the complainant in the
position he would have occupied absent discrimination or, if justified
by the circumstances, a substantially equivalent position. Complainant
shall be given a minimum of fifteen days from receipt of the offer of
reinstatement within which to accept or decline the offer. Failure
to accept the offer within the time period set by the agency will
be considered a rejection of the offer, unless complainant can show
that circumstances beyond his control prevented a response within the
time limit.
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 January 20, 1994, no later than 60 calendar
days after the date this decision becomes final. 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."
The agency shall pay front pay, provided that there is not another
equivalent position currently available. Front pay shall be paid until
such time and date that such a position becomes available, taking into
consideration any pay increases, bonuses, and other benefits he may
have received.
The agency shall pursue corrective action including, but not limited
to, EEO awareness training for the management officials responsible
for discriminating against complainant. The agency shall also review
its hiring and termination practices, and shall take whatever steps
may be deemed appropriate to prevent the recurrence of discriminatory
treatment during either process;
The agency shall pay complainant $3,700.00 for fees and $63.35 for costs.
The agency shall post the attached notice, as described below.
The agency shall pay reasonable attorney's fees, as described below.
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 Loma Linda, California 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.
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.
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
March 18, 2003
__________________
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 Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. � 2000e et seq., has occurred at the Department of Veterans
Affairs, Loma Linda, California Medical Center (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 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 discriminated against an employee on
the bases of sex and age when he was denied conversion to a permanent
position and terminated. The facility was ordered to: (1) offer to
reinstate complainant; (2) provide complainant with back pay and other
benefits; (3) pay complainant $80,000.00 in non-pecuniary damages; (4)
provide EEO awareness training to the responsible management officials;
(5) review its hiring and termination practices and take action to
ensure that discriminatory treatment does not recur in either process;
(6) pay complainant $3,700.00 for fees and $67.35 for costs, as well
as any other reasonable attorney's fees, if appropriate; and (7) post
this notice.
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