04a00002
12-21-2000
Linda Mozell, Petitioner, v. Bruce Babbitt, Secretary, Department of the Interior, Agency.
Linda Mozell v. Department of the Interior
04A00002
12-21-00
.
Linda Mozell,
Petitioner,
v.
Bruce Babbitt,
Secretary,
Department of the Interior,
Agency.
Petition No. 04A00002
Appeal No. 01981521
Agency No. LLM-95-071
Hearing No. 320-96-8293X
DECISION ON A PETITION FOR ENFORCEMENT
On November 17, 1999, the Equal Employment Opportunity Commission (EEOC or
Commission) docketed a petition for enforcement to examine the enforcement
of the Order set forth in Linda Mozell v. Department of the Interior, EEOC
Appeal No. 01981521 (August 12, 1999).<1> This petition for enforcement
is accepted by the Commission pursuant to 29 C.F.R. � 1614.503.
ISSUE PRESENTED
The issue presented herein is whether the agency has complied fully
with the Commission's Order for relief in EEOC Appeal No. 01981521.
BACKGROUND
By decision dated August 12, 1999, the Commission found that the
petitioner had been discriminatorily harassed based on sex when two
officials sought to undermine her performance and integrity between August
1994 and July 1, 1995. As relief, the decision ordered the agency to
restore and credit the petitioner with any sick and annual leave used
as a result of the discrimination and pay compensatory damages in the
amount of $1,000.
The record reveals that there is no dispute concerning the payment of
the compensatory damages, and the agency has paid the amount in question.
It also reveals, however, that the parties disagree as to the restoration
of sick and annual leave. By letter dated May 8, 1998, the agency
requested that the complainant provide �a written account of all annual
and sick leave used ... as a result of the harassment� consisting of
�an account of dates, hours used, type of leave used and any available
supporting documentation.�<2> In response, the complainant submitted a
letter dated May 15, 1998, in which she asserted that all of the leave
she took between August 1994 and July 1, 1995, was due to stress caused
by the harassment. This leave, which totaled 210.25 hours, consisted
of annual and sick leave, compensatory time, and credit hours.
The agency thereafter reviewed the complainant's leave records for
1993 and 1996 and compared them to the period at issue �to determine
whether there were any similarities in leave usage.� In this regard,
the agency's compliance report states, in relevant part:
Based upon the review, the agency excluded lengthy absences taken
around the holidays; absences taken in connection with a weekend; and
absences that [the complainant's] testimony verified as illnesses that
were unrelated to the work environment. Based upon the remaining leave
usage the agency determined that 40.5 hours was a reasonable amount of
leave to restore.
In July 1998, the complainant declined the offer to restore the 40.5
hours. Although the complainant indicated that she was willing to
negotiate the matter further, the parties were never able to arrange a
meeting to discuss the situation. The agency thereafter credited the
complainant's sick leave balance with 40.5 hours.
In her petition for enforcement, the complainant reiterates that she is
entitled to reimbursement
for over 200 hours of leave. The petitioner also claims that the agency
has breached an agreement reached with regard to two of the issues raised
in her original complaint.<3>
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. � 1614.503(a) provides that a petitioner may
petition the Commission for enforcement of a decision issued under the
Commission's appellate jurisdiction. In the case herein, the Commission
sought 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,
Albemarle Paper Co. v. Moody, 422 U.S. 405, 418 (1975). At issue is
whether the agency has fully complied with the Commission's prior Order.
The Commission notes, initially, that the prior decision's Order
required the agency to restore all the sick and annual leave related to
the agency's discrimination. Because this provision did not encompass
either credit hours or compensatory time, the Commission finds that the
petitioner is not entitled to reimbursement for the use of that leave.
Furthermore, we find no support for the conclusion that the petitioner
is entitled to reimbursement for all the sick and annual leave she
used between August 1994 and July 1, 1995. Specifically, although the
petitioner asserts that all of this leave was necessitated by the agency's
discrimination, she has offered no evidence to support her position,
e.g., an explanation as to why particular absences were attributable to
the discrimination. Absent such an explanation, and to the extent the
complainant's use of sick and annual leave during the period in question
was seemingly not atypical of her normal leave usage,<4> the Commission
finds nothing inappropriate or erroneous about the agency's decision
to reimburse the petitioner 40.5 hours of sick leave. Accordingly,
it is the decision of the Commission to deny the petitioner's request.
CONCLUSION
Based upon a review of the record herein, and the submissions of the
parties, the Commission finds that the agency has complied with the
previous Order set forth in Linda Mozell v. Department of the Interior,
EEOC Appeal No. 01981521 (August 12, 1999). It is the decision of the
Commission to DENY the petitioner's petition for enforcement.
STATEMENT OF PETITIONER'S RIGHTS - PETITION FOR CLARIFICATION
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (P0400)
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
_12-21-00_________________
Date
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.
2Although this predates the Commission's prior decision, we note that
the restoration of leave was a remedy that had been set forth in the
underlying final agency decision issued in November 1997. As such,
the parties had already addressed the question of leave restoration at
the time we issued our decision.
3The Commission shall not entertain this allegation at this juncture.
The complainant is advised that, if she wishes to pursue her breach
allegation, she should follow the procedures set forth at 29 C.F.R. �
1614.504.
4The petitioner used 183.5 hours of leave (120 annual, 63.5 sick) during
that period, and 186.5 hours (122.5 annual, 64 sick) during the eleven
months prior to that period.