04980032
05-02-2000
) Request No. 05970944
Heidi S. Hamby v. Department of the Army
04980032
May 2, 2000
Heidi S. Hamby, )
Petitioner, )
)
v. ) Petition No. 04980032
) Request No. 05970944
Louis Caldera, ) Appeal No. 01955808
Secretary, ) Agency No. T-0464-FL-A-01-94-GO
Department of the Army )
(Army National Guard Bureau),)
Agency. )
)
DECISION ON PETITIONS FOR ENFORCEMENT AND CLARIFICATION
On July 14, 1998, the Equal Employment Opportunity Commission (EEOC
or Commission) docketed a Petition for Enforcement from Heidi S. Hamby
(petitioner) requesting enforcement of the Commission's Order in Heidi
S. Hamby v. Department of the Army, EEOC Request No. 05970944 (May
21, 1998). The Department of the Army (agency) subsequently filed a
cross-petition for clarification of the same order. The Petitions were
properly filed in accordance with 29 C.F.R. �1614.503(a).<1> For the
reasons set forth herein, both Petitions are 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 Appeal
No. 05970944.
BACKGROUND
The salient facts of this case are as follows: On an appeal filed
by petitioner, the Commission found that the agency had discriminated
against petitioner in violation of Title VII of the Civil Rights Act
of 1964, as amended, 42 U.S.C. �2000e et seq., and ordered the agency,
inter alia, to reinstate petitioner to her former position with the
Florida Army National Guard. Heidi S. Hamby v. Department of the Army,
EEOC Appeal No. 01955808 (June 30, 1997). The agency's request for
reconsideration of this decision was denied. Heidi S. Hamby v. Department
of the Army, EEOC Request No. 05970944 (May 21, 1998). Subsequently,
petitioner filed a petition for enforcement of the Commission's Order,
arguing that the agency had not reinstated her to her former position,
and had not tendered the amount of back pay which was due and owing.
The agency filed a petition for clarification stating that, while it
would comply with the remaining provisions of the Commission's Order
(retroactive back pay and benefits, posting order, and attorney fees), it
could not comply with the portion of the Order directing it to reinstate
petitioner to her former position with the agency. The agency explained
that effective July 15, 1998, petitioner's "federal recognition as a
military officer" had been withdrawn, and that without such recognition,
petitioner was statutorily ineligible to return to her former position
with the Army National Guard.<2>
ANALYSIS and FINDINGS
The record in the instant case reflects that petitioner's federal
recognition as a military officer was, in fact, withdrawn effective
July 15, 1998, and that as of that date, petitioner no longer meets
the statutory qualifications for her former position with the agency.
The Commission notes that the decision to withdraw petitioner's
federal recognition as a military officer is outside of the Commission's
jurisdiction, and is not subject to review in this forum. The Commission
therefore clarifies its Order in Request No. 05970944 to reflect that
the agency is obliged to tender back pay and benefits through July 15,
1998, the date on which petitioner became ineligible for reinstatement,
but is not obliged to reinstate petitioner to a position for which she
is no longer statutorily qualified.
However, the record in this case contains no report of compliance or other
form of documentary evidence showing that the agency has complied with
the remaining portion of the Commission's Order in Request No. 05970944.
Accordingly, the Commission finds that the agency is not in compliance
with that Order. The agency is admonished that it must comply with
the Order of the Commission set forth below, or face sanctions for its
failure to do so.
CONCLUSION
Based upon a careful review of the record, and for the foregoing reasons,
it is the decision of the Commission to GRANT both the petition for
enforcement and the petition for clarification.
ORDER (D1199)
The agency is ORDERED to take the following remedial actions:
(1) The agency shall tender to petitioner back pay and benefits for
the period July 27, 1994, through July 15, 1998, in accordance with the
directions set forth below.
(2) The agency shall post a notice of the finding of discrimination in
accordance with the below-entitled paragraph, "Posting Order."
(3) The agency shall pay petitioner's reasonable attorney fees and costs
in accordance with the below-entitled paragraph, "Attorney's Fees."
The agency shall determine the appropriate amount of back pay (with
interest, if applicable) and other benefits due petitioner, pursuant to
29 C.F.R. � 1614.501, no later than sixty (60) calendar days after the
date this decision becomes final. The petitioner shall cooperate in the
agency's efforts to compute the amount of back pay and benefits due,
and shall provide all relevant information requested by the agency.
If there is a dispute regarding the exact amount of back pay and/or
benefits, the agency shall issue a check to the petitioner for the
undisputed amount within sixty (60) calendar days of the date the
agency determines the amount it believes to be due. The petitioner may
petition for enforcement or clarification 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 entitled
"Implementation of the Commission's Decision."
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 petitioner,
including evidence that the corrective action has been implemented.
POSTING ORDER (G1092)
The agency is ORDERED to post at its Army National Guard Bureau,
St. Augustine, Florida, 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.
ATTORNEY'S FEES (H1199)
If petitioner 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.
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
petitioner. If the agency does not comply with the Commission's order,
the petitioner may petition the Commission for enforcement of the order.
29 C.F.R. � 1614.503(a). The petitioner 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 petitioner 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 petitioner 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
PETITIONER'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:
May 2, 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 petitioner, petitioner's representative
(if applicable), and the agency on:
______________________________________ __________________
Equal Opportunity Specialist Date
This Notice is posted pursuant to an Order by the United States Equal
Employment Opportunity Commission dated _____________ which found that
a violation of Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. �2000e et seq., has occurred at this facility.
Federal law requires that there be no discrimination against any
employee or applicant for employment because of that person's RACE,
COLOR, RELIGION, SEX, NATIONAL ORIGIN, AGE, or PHYSICAL or MENTAL
DISABILITY with respect to hiring, firing, promotion, compensation,
or other terms, conditions, or privileges of employment.
The Army National Guard Bureau, St. Augutsine, Florida, supports and
will comply with such Federal law and will not take action against
individuals because they have exercised their rights under law.
The Army National Guard Bureau, St. Augutsine, Florida, has been
found to have discriminated against the individual affected by the
Commission's finding. The Army National Guard Bureau, St. Augutsine,
Florida, shall tender back pay and benefits to the affected individual,
and shall pay the affected individual's reasonable attorney fees
and costs. The Army National Guard Bureau, St. Augutsine, Florida,
will ensure that officials responsible for personnel decisions and
terms and conditions of employment will abide by the requirements of
all Federal equal employment opportunity laws and will not retaliate
against employees who file EEO complaints.
The Army National Guard Bureau, St. Augutsine, Florida, will not in any
manner restrain, interfere, coerce, or retaliate against any individual
who exercises his or her right to oppose practices made unlawful by,
or who participates in proceedings pursuant to, Federal equal employment
opportunity law.
_________________________
Date Posted: ____________________
Posting Expires: _________________
29 C.F.R. Part 1614
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 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.
2It is noted that petitioner's federal recognition initially was
withdrawn prior to the issuance of the Commission's decision in Request
No. 05970944; the withdrawal was subsequently rescinded and reissued on
account of a procedural defect.