01984004
05-11-2000
Paul G. King, Complainant, v. F. Whitten Peters, Secretary, Department of the Air Force, Agency.
Paul G. King v. Department of the Air Force
01984004
May 11, 2000
Paul G. King, )
Complainant, )
) Appeal No. 01984004
v. ) Agency No. LYOJ97081F
)
F. Whitten Peters, )
Secretary, )
Department of the Air Force, )
Agency. )
)
DECISION
Complainant, Paul G. King, filed a timely appeal from a final agency
decision concerning his complaint. He alleged unlawful employment
discrimination on the bases of reprisal (prior EEO activity), age
(10/18/36), and physical disability (hearing loss), in violation of Title
VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et
seq.; the Age Discrimination in Employment Act of 1967 (ADEA), as amended,
29 U.S.C. � 621 et seq.; and the Rehabilitation Act of 1973, as amended,
29 U.S.C. � 791, et seq.<1> Complainant alleges he was discriminated
against when: (1) the agency failed to take disciplinary action against
a co-worker for physically assaulting the complainant in August 1995;
and (2) he was removed from his work area on February 9, 1996; (3) the
agency failed to detail him to a WG-13 position in February 1996; (4)
he was demoted to Billeting Clerk GS-3 on July 21, 1996; (5) the agency
refused to give him priority re-promotion consideration in September 1996.
The appeal is accepted pursuant to 64 Fed. Reg. 37,644, 37,659 (1999)(to
be codified at 29 C.F.R. � 1614.405). For the following reasons, the
Commission modifies the relief ordered by the agency's final decision.
The record reveals that during the relevant time, the complainant was
employed as a Model Maker WG -4717-13 at the agency's Luke Air Force Base,
Glendale, Arizona facility. He filed a complaint on or about August 28,
1996 raising the above-referenced issues. The agency investigated the
complaint and offered the complainant the opportunity for a hearing or
an immediate final agency decision. The complainant did not request
either a hearing or a final agency decision and thereafter, the agency
issued its decision finding discrimination.
In its decision, the agency concluded that the complainant was not
substantially limited in a major life activity but was regarded as
disabled because his hearing test results indicated some hearing loss.
The agency found that its managers discriminated against the complainant
by removing him from his job as a model maker and demoting him to
a billeting clerk WG-3. In concluding that it had discriminated, the
agency found that it did not have a legitimate non-discriminatory reason
for removing the complainant from his job. As to all the other issues
and bases of discrimination, the agency found no discrimination.
The agency issued a separate memorandum indicating the remedial action
it would take in response to its findings of discrimination. It is this
aspect of the agency's decision from which the complainant now appeals.
Although the complainant states the agency is not complying with its
final decision because its remedial action does not give "full relief,"
we construe this as an appeal from the agency's decision as to specific
remedies.
The agency's specific remedies for the discrimination that it found were
the following:
(1) reinstatement to the position of Model Maker WG-13 retroactive to
July 21, 1996; (2) backpay of $16,439.16 with interest; ( 3) lathe and
mill training; (4) overtime for 261 hours based on the average overtime
worked by employees in the Model Shop from July 1996 to January 1998;
(5) compensatory damages of $8,000.00; and (6) a commitment to refrain
from reprisal and further disability discrimination.
On appeal, the complainant contends that he should be given four training
courses based on the machinery he is required to use in his job. He was
not specifically aware of the training that was available during his
absence from the Model Shop but he claimed there were at least four
machine schools and several computer classes that he had not attended.
The complainant also argued that the overtime he was awarded was not
correctly calculated because it failed to account for the full length
of his absence from the Model Shop. He claimed he was not allowed to
report back to the Model Shop until March 1998 but that the overtime
was calculated for the time period July 21, 1996 to January 5, 1998.
He also argued that he should be compensated for the full amount of
overtime actually available and not just the average of the overtime
worked by his co-workers.
The agency argued that the overtime awarded to the complainant was based
on 3.6 hours per week or more than twice as much (1.7) as the complainant
worked before he was removed from the Model Shop. The agency explained
that it took the average overtime of those employees who worked overtime.
Those employees who did not work any overtime were excluded from the
calculation. Also excluded from the calculation was the overtime worked
by the Senior Model Maker and the Supervisor who held different positions
than the complainant. The agency did not offer an explanation why it did
not include the additional time period to March 1998 when the complainant
was still not working in the Model Shop.
Analysis and Findings
The United States Supreme Court has held that one of the central purposes
of the anti-discrimination laws is "to make persons whole for injuries
suffered on account of unlawful employment discrimination." Albermarle
Paper Co. v. Moody, 422 U.S. 405, 418 (1975); see also Sanchez
v. U.S. Postal Service, EEOC No. 01975022 ( October 28, 1999) . The
Supreme Court has further held that the attainment of this objective
"requires that persons aggrieved by the consequences and effects of
[an] unlawful employment practice be ... restored where they would have
been were it not for the unlawful discrimination." Franks v. Bowman
Transportation Co., 424 U.S.747, 764 (1976). The Commission specifies
the parameters of full relief which must be given when an agency has
been found to have discriminated against an employee. 29 C.F.R. �1614.501.
In this regard, we find that the agency must include the entire time
period that the complainant was prevented from working overtime when
he was removed from his position in the Model Shop. This time period,
according to the record, was from July 21, 1996 to March 16, 1998.
The agency did not dispute the complainant's contention that he was not
physically returned to his job until March 1998. Therefore, the agency
must re-calculate the overtime lost to the complainant to include the
additional time period from January 5, 1998, when the agency's decision to
reinstate him was issued, to March 16, 1998 when he was actually returned
to his job in the Model Shop. We otherwise find the agency's method of
averaging the amount of overtime worked by employees to be reasonable.
See Merriell v. Department of Transportation, Request No, 05890596
(August 10, 1989); Finlay v. U.S. Postal Service, EEOC No. 01942985
(April 29, 1997). We do not agree with the complainant that he should
be compensated for all available overtime during his absence from the
Model Shop. To do so could result in the complainant being given more
than "make whole relief" based on the presumption that he would have
worked all available overtime hours. Such a presumption is not based on
evidence in the record.
With respect to the complainant's contention that he should be granted
at least four training courses as part of his remedy, we found no
evidence on the record that there were more than two training courses
available to other employees in similar positions as the complainant.
The complainant gave no specific information regarding the dates, or
subject matter of training which was made available to his co-workers
during his absence. Therefore, we find that the agency's award of two
training courses in lathe and mill machinery was sufficient relief for
the agency's admitted discriminatory conduct.
Therefore, after a careful review of the record, including complainant's
contentions on appeal, the agency's response, and arguments and evidence
not specifically addressed in this decision, we MODIFY the agency's
determination regarding the compensation for lost overtime and remand
this case to the agency to take remedial actions in accordance with
this decision and order below. As to the agency's determination of the
training to be given to the complainant, we AFFIRM. We further order the
agency to post notice to its employees as required by our regulations. 29
C.F.R. �1614.501.(a)(1).
ORDER
The agency is ORDERED to take the following additional remedial action:
The agency shall re-calculate the amount of overtime lost to the
complainant as a result of the discriminatory conduct to include the
additional time period of January 5, 1998 to March 16, 1998 using the
same method that it relied on in its decision on remedial action.
The agency will post a notice to its employees pursuant to the Order
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 (G1092)
The agency is ORDERED to post at its Luke Air Force Base 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.
INTERIM RELIEF (F1199)
When the agency requests reconsideration and the case involves a
finding of discrimination regarding a removal, separation, or suspension
continuing beyond the date of the request for reconsideration, and when
the decision orders retroactive restoration, the agency shall comply with
the decision to the extent of the temporary or conditional restoration
of the complainant to duty status in the position specified by the
Commission, pending the outcome of the agency request for reconsideration.
See 64 Fed. Reg. 37,644, 37,660 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. � 1614.502(b)).
The agency shall notify the Commission and the complainant in writing at
the same time it requests reconsideration that the relief it provides
is temporary or conditional and, if applicable, that it will delay
the payment of any amounts owed but will pay interest from the date
of the original appellate decision until payment is made. Failure of
the agency to provide notification will result in the dismissal of the
agency's request. See 29 C.F.R. � 1614.502(b)(3).
IMPLEMENTATION OF THE COMMISSION'S DECISION (K1199)
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 64
Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter
referred to as 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 64 Fed. Reg. 37,644, 37,659 (1999)
(to be codified and hereinafter referred to as 29 C.F.R. � 1614.409).
ATTORNEY'S FEES (H1199)
If complainant has been represented by an attorney (as defined by 64
Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter
referred to as 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.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
The Commission may, in its discretion, reconsider the decision in this
case if the complainant or the agency submits a written request containing
arguments or evidence which tend to establish 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.
Requests to reconsider, with supporting statement or brief, MUST BE FILED
WITH THE OFFICE OF FEDERAL OPERATIONS (OFO) WITHIN THIRTY (30) CALENDAR
DAYS of receipt of this decision or WITHIN TWENTY (20) CALENDAR DAYS OF
RECEIPT OF ANOTHER PARTY'S TIMELY REQUEST FOR RECONSIDERATION. See 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
to as 29 C.F.R. � 1614.405); Equal Employment Opportunity Management
Directive for 29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999).
All requests and arguments must be submitted to the Director, Office of
Federal Operations, Equal Employment Opportunity Commission, P.O. Box
19848, Washington, D.C. 20036. In the absence of a legible postmark, the
request to reconsider shall be deemed timely filed if it is received by
mail within five days of the expiration of the applicable filing period.
See 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. � 1614.604). The request or opposition must
also include proof of service on the other party.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely, unless extenuating circumstances
prevented the timely filing of the request. Any supporting documentation
must be submitted with your request for reconsideration. The Commission
will consider requests for reconsideration filed after the deadline only
in very limited circumstances. See 29 C.F.R. � 1614.604(c).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (R0400)
This is a decision requiring the agency to continue its administrative
processing of your complaint. However, if you wish to file a civil
action, you have the right to file such action in an appropriate United
States District Court WITHIN NINETY (90) CALENDAR DAYS from the date
that you receive this decision. In the alternative, you may file a
civil action AFTER ONE HUNDRED AND EIGHTY (180) CALENDAR DAYS of the date
you filed your complaint with the agency, or filed your appeal with the
Commission. 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. Filing a civil
action will terminate the administrative processing of your complaint.
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:
May 11, 2000
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
1 On 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 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.