) Request No. 05980180

Equal Employment Opportunity CommissionFeb 29, 2000
04990008 (E.E.O.C. Feb. 29, 2000)

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.