04990008
02-29-2000
) Request No. 05980180
Debra DiCamillo v. Department of the Treasury
04990008
February 29, 2000
Debra DiCamillo, )
Petitioner, )
)
v. ) Petition No. 04990008
) Request No. 05980180
Lawrence H. Summers, ) Appeal No. 01960462
Secretary, ) Agency Nos. 924136, 934032
Department of the Treasury,)
Agency. )
)
DECISION ON PETITION FOR CLARIFICATION
On October 28, 1998, the Equal Employment Opportunity Commission (EEOC
or Commission) docketed a Petition for Clarification from the Department
of the Treasury requesting clarification of the Commission's order in
Debra DiCamillo v. Department of the Treasury, EEOC Request No. 05980180
(July 30, 1998). The Petition for Clarification was properly filed in
accordance with 29 C.F.R. �1614.503(c). 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. 05980180.
BACKGROUND
On November 5, 1997, the Commission issued its decision in Debra DiCamillo
v. Department of the Treasury, Appeal No. 01960462. That decision
adopted the recommended decision of the administrative judge finding
that the agency had discriminated against petitioner based on race,
mental disability, and reprisal with regard to a "check point" review,
reimbursement of expenses to attend training, time and attendance
records, reassignment to a new duty station, and a charge of absence
without leave. The agency's request for reconsideration of the appeal
decision was denied in Debra DiCamillo v. Department of the Treasury,
EEOC Request No. 05980180 (July 30, 1998). However, the Commission
granted reconsideration on its own motion, modifying the previous
decision to clarify that if petitioner were unable to return to work,
she was not entitled to an award of front pay, but could instead claim
future pecuniary damages for wage loss.
The Commission's decision in Request No. 05980180 provided the following
relief:
1. The agency shall reimburse [petitioner] for expenses incurred in
conjunction with the training session on June 24, 1992; and shall change
[petitioner]'s time sheets to reflect the time she spent at work on the
12 dates in question. The agency shall also tender back pay for all wages
lost when, beginning on or about June 28, 1992, [petitioner] was placed in
leave-without-pay status and, beginning on or about September 30, 1992,
she was placed in absent-without-leave status, offset by the amount of
any wage-replacement benefits [petitioner] received from the Office of
Workers' Compensation claims or disability retirement benefits.***
2. If [petitioner] has recovered from her disabling medical condition
sufficiently to return to work, the agency shall reinstate her to the
position she held prior to being transferred to its Washington, D.C.,
office. Such position shall not be under the authority of or in close
proximity to [petitioner]'s former manager.
3. The agency shall determine the exact amount of compensatory damages,
both pecuniary and non-pecuniary, payable to [petitioner]. [Petitioner]
shall cooperate in the agency's efforts to compute the amount of
the award due her, and shall provide all relevant information and
evidence requested by the agency, following the guidelines referenced
in the previous decision. If there is a dispute regarding the exact
amount of the award, the agency shall issue a check to [petitioner]
for the undisputed amount within sixty (60) days of the date the agency
determines the amount it believes to be due. [Petitioner] may petition
for clarification or enforcement 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, "Implementation of
the Commission's Decision."
4. The agency is directed to conduct training for [petitioner]'s former
manager who was found to have discriminated against [petitioner].
The training shall address this employee's responsibilities with respect
to eliminating discrimination in the workplace and all other supervisory
and managerial responsibilities under equal employment opportunity law.***
The Commission also ordered the agency to post a notice of the finding
of discrimination, and to pay petitioner's reasonable attorney fees
and costs.
Correspondence received during the pendency of these proceedings reflects
that the agency has proffered the awarded relief, with two exceptions:
the agency has not offered petitioner reinstatement, nor tendered
compensatory damages. The record reflects that the parties disagree
whether petitioner is first obligated to submit medical evidence to
the agency that she is able to return to work, or the agency is first
obligated to tender an offer of reinstatement. Further, the agency states
that it is unable to determine appellant's entitlement to compensatory
damages until such time as the question of petitioner's reinstatement
is resolved. In a compliance report dated July 13, 1999, the agency
demonstrated that it had complied with the Order of Commission except
for the provisions regarding reinstatement and compensatory damages.
Accordingly, the Commission will limit its discussion to these two
provisions.
ANALYSIS and FINDINGS
The Commission finds no ambiguity in the provision of its Order regarding
the offer of reinstatement. That provision reads: "If [petitioner]
has recovered from her disabling medical condition sufficiently to
return to work, the agency shall reinstate her ...." According to
the plain language of this provision, the agency's obligation to offer
petitioner reinstatement as opposed to compensating her for future wage
loss is not triggered unless petitioner has recovered from her disabling
medical condition sufficiently to return to work. Of necessity, then,
it is petitioner's obligation first to submit medical evidence to the
agency demonstrating that she is able to return to work. With regard
to petitioner's argument that she cannot do so without knowing what the
demands of the offered position would be,<1> the Commission notes that
petitioner may submit medical evidence delineating whatever remaining
limitations, if any, she may have; the agency would then be obliged to
offer petitioner reinstatement with due regard for whether petitioner
might require reasonable accommodation.
With regard to the determination of petitioner's entitlement to
compensatory damages, the Commission acknowledges that the agency
cannot fully determine such entitlement until it knows whether and when
petitioner will return to work. However, the record reflects that
petitioner's claim for compensatory damages is not limited to future
pecuniary damages. In this regard, the Order of the Commission provides
that "[i]f there is a dispute regarding the exact amount of the award,
the agency shall issue a check to [petitioner] for the undisputed amount
within sixty (60) days of the date the agency determines the amount it
believes to be due." The agency has not yet done so. Accordingly, the
Commission will order the agency to calculate and pay the uncontested
portion of petitioner's claim for compensatory damages.
CONCLUSION
Upon review of petitioner's Petition for Clarification, and the entire
record, the Commission finds that the agency is not in full compliance
with the Order of the Commission in EEOC Request No. 05980180.
The Petition for Clarification therefore is GRANTED.
ORDER
The agency is ordered to take the following actions:
Upon its receipt of this decision, the agency shall solicit from
petitioner evidence regarding her current medical restrictions, if any.
The agency shall afford petitioner thirty (30) days to submit such
evidence. If petitioner fails to submit such evidence, the agency's
obligation to offer petitioner reinstatement, and petitioner's entitlement
to compensation for wage loss, whether in the form of back pay, front pay,
or compensatory damages, shall cease.
If petitioner submits the requested medical evidence, and the evidence
shows that petitioner has recovered from her disabling condition
sufficiently to return to work, then the agency shall locate a suitable
position for petitioner, with due regard for whether petitioner
might require reasonable accommodation, and shall offer petitioner
reinstatement. The agency shall afford petitioner no fewer than five (5)
business days to determine whether to accept the offer. If petitioner
rejects the offer, her entitlement to wage-loss compensation shall cease
on the date of rejection.
If petitioner submits the requested medical evidence, and the evidence
shows that petitioner has not recovered from her disabling condition
sufficiently to return to work, or if the agency is unable to locate a
suitable position for her, then the agency shall proceed to determine
petitioner's entitlement to compensatory damages for future wage loss.
The agency shall immediately determine and tender to petitioner the
uncontested portion of compensatory damages claimed; that is, damages
not related to future wage loss.
The agency shall submit a report of compliance to the Compliance Officer,
as indicated below.
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.
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:
February 29, 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 of mailing. I certify that
the decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
________________________
Date
_________________________
Equal Employment Specialist
1The record reflects that the petitioner's former position no longer
exists, and that another position therefore must be offered.