05A10178
04-27-2001
Sheila Yarbrough, Complainant, v. John Ashcroft, Attorney General, Department of Justice, (Federal Bureau of Prisons) Agency.
Sheila Yarbrough v. Department of Justice
05A10178
April 27, 2001
.
Sheila Yarbrough,
Complainant,
v.
John Ashcroft,
Attorney General,
Department of Justice,
(Federal Bureau of Prisons)
Agency.
Request No. 05A10178
Appeal No. 01991871
Agency No. P-95-8791
Hearing No. 370-97-X2697
DENIAL OF REQUEST FOR RECONSIDERATION
The agency initiated a request to the Equal Employment Opportunity
Commission (EEOC or Commission) to reconsider the decision in Sheila
Yarbrough v. Department of Justice, EEOC Appeal No. 01991871 (October
18, 2000). Complainant alleged that she was discriminated against on the
bases of her race (Black) and sex (female) when the agency removed her
from the position of Special Investigative Supervisor (SIS) in September
1995 in violation of Title VII of the Civil Rights Act of 1964 (Title
VII), as amended, 42 U.S.C. � 2000e et seq. EEOC Regulations provide that
the Commission may, in its discretion, reconsider any previous Commission
decision where the requesting party demonstrates 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. See 29 C.F.R. �
1614.405(b).
Previously, we affirmed the decision of an EEOC Administrative Judge (AJ)
who concluded that complainant established that she was discriminated
against as referenced above. The agency now requests reconsideration
alleging an erroneous interpretation of material fact. After a review
of the agency's request for reconsideration, the previous decision,
and the entire record, the Commission finds that the request fails to
meet the criteria of 29 C.F.R. � 1614.405(b) and it is the decision of
the Commission to deny the request. The decision in EEOC Appeal No.
01991871 remains the Commission's final decision. There is no further
right of administrative appeal on the decision of the Commission on this
request for reconsideration.
ORDER
The agency is ORDERED to take the following remedial action:
1. Within thirty (30) calendar days of the date this decision becomes
final, the agency shall offer complainant the position of Special
Investigative Supervisor or a substantially equivalent position.
Complainant shall be given a minimum of fifteen days from receipt of the
offer within which to accept or decline the offer. Failure to accept
the offer within the time period set by the agency will be considered a
rejection of the offer, unless complainant can show that circumstances
beyond her control prevented a response within the time limit.
2. Within sixty (60) calendar days of the date this decision
becomes final, the agency is directed to award complainant back pay,
with interest, for all wages and benefits lost between the date she
was removed from the position of Special Investigative Supervisor in
September 1995 and the date complainant accepts or declines the offer.
The agency shall determine the appropriate amount of back pay, interest,
and other benefits due complainant, pursuant to 29 C.F.R. � 1614.501(c).
The complainant 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 complainant for the undisputed amount within sixty (60) calendar
days of the date the agency determines the amount it believes to be due.
The complainant 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."
3. The issues of compensatory damages and attorney's fees and costs
are remanded to the Hearings Unit of the San Francisco District Office.
Thereafter, the Administrative Judge shall issue a decision on these
issues in accordance with 29 C.F.R. � 1614.109, and the agency shall
issue a final action in accordance with 29 C.F.R. � 1614.110 within forty
(40) days of receipt of the Administrative Judge's decision. The agency
shall submit copies of
the Administrative Judge's decision and the final agency action to the
Compliance Officer at the address set forth below.
4. The agency shall provide training to all the management officials
responsible for this matter in their duties and obligations under the
statutes enforced by this Commission.
5. 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, and the agency's decision regarding
compensatory damages, including evidence that the corrective action
has been implemented.
POSTING ORDER (G1092)
The agency is ORDERED to post at its San Francisco, California 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.
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (P0900)
This decision of the Commission is final, and there is no further right
of administrative appeal from the Commission's decision. You have the
right to file a civil action in an appropriate United States District
Court within ninety (90) calendar days from the date that you receive
this decision. 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.
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
April 27, 2001
Date
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
An Agency of the United States Government
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 or retaliation
against any employee or applicant for employment because of that person's
RACE, COLOR, RELIGION, SEX, NATIONAL ORIGIN, AGE, PRIOR EEO ACTIVITYor
PHYSICAL or MENTAL DISABILITY with respect to hiring, firing, promotion,
compensation, or other terms, conditions, or privileges of employment.
The Federal Correctional Institution in Dublin, California, (hereinafter
referred to as �facility�) supports and will comply with such Federal
law and will not take action against individuals because they have
exercised their rights under law.
The facility has been found to have retaliated against an employee by
taking reprisal against her for engaging in protected EEO activity.
The facility has been ordered to give the supervisors involved training
regarding the requirements of the law referred to in this posting and to
ensure that officials responsible for personnel decisions and terms and
conditions of employment will abide by the requirements of all Federal
equal employment laws.
The facility 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