04980038
03-15-2000
) Request No. 05980251
Hunter Timmons, Jr. v. Department of the Army
04980038
March 15, 2000
Hunter Timmons, Jr., )
Petitioner, )
)
v. ) Petition No. 04980038
) Request No. 05980251
Louis Caldera, ) Appeal No. 01961926
Secretary, ) Agency No. 94-07-0073
Department of the Army,)
Agency. )
)
DECISION ON PETITION FOR ENFORCEMENT
The Equal Employment Opportunity Commission (EEOC or Commission) docketed
a Petition for Enforcement from Hunter Timmons, Jr., (petitioner),
requesting enforcement of the Commission's order in Hunter Timmons, Jr.,
v. Department of the Army, EEOC Request No. 05980251 (April 30, 1998).
The Petition for Enforcement was properly filed in accordance with 29
C.F.R. �1614.503(a). For the reasons set forth herein, the petition
is GRANTED.
ISSUE PRESENTED
The issue presented in this petition is whether the agency has fully
complied with the Order of the Commission set forth in EEOC Request
No. 05980251.
BACKGROUND
In a decision on an appeal filed by petitioner, the Commission found that
the Department of the Army (agency) had discriminated against petitioner
based on physical disability in violation of the Rehabilitation Act
of 1973, as amended, 29 U.S.C. �791 et seq. As relief, the Commission
ordered, in relevant part, that the agency "correct [petitioner's] records
to show that his temporary Materials Handler, WG-4, position was extended
for the same period as that of the Comparative [employee]," and that
the agency provide petitioner with appropriate back pay and benefits.
Hunter Timmons, Jr., v. Dept. of the Army, EEOC Appeal No. 01961926
(December 12, 1997). The agency subsequently filed a request for
reconsideration, which was denied. Hunter Timmons, Jr., v. Dept. of
the Army, EEOC Request No. 05980251 (April 30, 1998).
The record reveals that the agency corrected petitioner's records to
reflect that his position was extended through mid-September 1994, as the
comparative employee's position had been, and that the agency tendered
to petitioner a lump-sum amount representing the value of petitioner's
back pay and benefits for the period of the extension (mid-September
1993 through mid-September 1994), plus interest.
Petitioner filed the instant petition, in which he argued that the
agency had not properly calculated the amount owing to him, specifically
with regard to payment for unused annual leave and lost overtime;
that the agency was required to appoint him to a term position, as
it had done for the comparative employee; and that the agency had
not provided him with a copy of its compliance report. In its reply,
the agency acknowledged that it had erred in its initial calculations,
and that it had since determined that petitioner was entitled to payment
for 160 hours of unused annual leave and 47 hours of lost overtime (the
amount of overtime worked by the comparative prior to his resignation),
plus interest. The agency indicated that payment would be mailed to
petitioner at the end of the current pay period (about one week later).
However, the record reflects that petitioner did not receive the promised
check, and was told that it was "hung up" somewhere because his file was
closed. The agency noted that the Commission had not ordered the agency
to appoint petitioner to a term position. The agency did not address
its failure to provide petitioner with a copy of its compliance report.
ANALYSIS and FINDINGS
The Commission notes at the outset that the agency has acknowledged that
it was not in compliance with the Commission's order in EEOC Request
No. 05980251, in that it had not properly calculated the amount owing
to petitioner for unused annual leave and lost overtime. Although the
agency made certain corrections to its calculations in this regard,
the Commission finds that the agency still has not fully complied with
its Order.
The first area in which the agency is not in compliance is in the
calculation of lost overtime. The agency stated that it would tender
payment for 47 hours of overtime, basing this amount on the number of
hours of overtime worked by the comparative employee during the year
that his position was extended. The record reflects, however, that the
comparative employee resigned his position about two and one-half months
after receiving his extension. The Commission has already made clear that
petitioner's remedy is not limited because of the comparative employee's
resignation. Timmons, EEOC Request No. 05980251, n.2. The agency is
therefore obliged to estimate the amount of overtime petitioner would
have worked during the full year of his extension rather than rely on
the number of hours actually worked by the comparative employee prior
to his resignation.
The second area in which the agency is not in compliance is in its failure
to actually tender payment for the supplemental amount of back pay and
benefits due. Correspondence of record from petitioner reflects that the
agency did not issue his check as scheduled, did not offer any explanation
beyond the check being "hung up" somewhere, and addressed the situation
by referring petitioner from one employee to another until he ended up
back with the first employee he contacted, who had no answer for him.
There is no indication that petitioner has ever received the payment
owing to him.
Regarding petitioner's contention that the agency failed to provide a
copy of its compliance report, the Commission notes that, although it may
not have been labeled as such, the agency has provided petitioner with
copies of the documentation showing what actions it has taken thus far
and how it calculated the amounts previously paid. petitioner submitted
copies of this documentation along with his petition.
Regarding petitioner's argument that he is entitled to promotion to a
term position, the Commission notes that no such remedy was ordered in
its previous decisions in this case. Petitioner may not now seek to
expand his remedy beyond that which was already ordered by the Commission.
CONCLUSION
Based upon the foregoing, the Commission finds that the agency is not in
compliance with the Order of the Commission in EEOC Request No. 05980251.
Accordingly, the petition for enforcement is GRANTED.
ORDER
The agency is ORDERED to take the following action:
(1) Within thirty (30) days of its receipt of this decision, if it has
not already done so the agency shall tender to petitioner a check in
payment of the 160 hours annual leave and 47 hours overtime the agency
has already acknowledged that it owes to petitioner, plus interest.
(2) Within sixty (60) days of its receipt of this decision, the agency
shall calculate the amount of overtime petitioner would have worked
during the one-year extension of his position, and shall tender to
petitioner a check in that amount, plus interest.
(3) The agency shall submit a report of compliance to the Compliance
Officer, as set forth below, and shall provide a copy of the compliance
report to petitioner.
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).
STATEMENT OF RIGHTS - PETITION FOR ENFORCEMENT
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (R1199)
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:
March 15, 2000
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
Date Equal Employment Assistant