Linda Mozell, Petitioner,v.Bruce Babbitt, Secretary, Department of the Interior, Agency.

Equal Employment Opportunity CommissionDec 21, 2000
04a00002 (E.E.O.C. Dec. 21, 2000)

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.