05990372
04-11-2000
Stan Laber, Complainant, Louis Caldera, Secretary, Department of the Army, Agency.
Stan Laber v. Department of the Army
05990372
April 11, 2000
Stan Laber, )
Complainant, ) Request No. 05990372
)
) Appeal No. 01973838
)
Louis Caldera, ) Agency No. 0793061E
Secretary, )
Department of the Army, ) Hearing No. 100-94-7118X
Agency. )
______________________________)
DECISION ON REQUEST FOR RECONSIDERATION
The complainant initiated a request to the Equal Employment Opportunity
Commission (EEOC or Commission) to reconsider the decision in Stan
Laber v. Department of the Army, EEOC Appeal No. 01973838 (December
22, 1998).<1> 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 64 Fed. Reg. 37,644,
37,659 (1999) (to be codified and hereinafter referred to as 29 C.F.R. �
1614.405(b)). For the reasons set forth herein, complainant's request
is denied.
In the previous decision, the Commission affirmed the Administrative
Judge's finding of discrimination in this matter. The Administrative
Judge (AJ) had found that complainant was subject to unlawful religious
discrimination when he was not selected for the position of Industrial
Specialist, GS-1150-11. The position was located in Tel Aviv, Israel.
To remedy the established discrimination, the Commission ordered
the agency to offer complainant immediate placement in an Industrial
Specialist GS-11 position in Israel, or a substantially equivalent
position even if such position is at a GS-12 or 13 level providing that
complainant was qualified for such position.
On request for reconsideration, complainant contends that the Commission's
remedy order was insufficient. Complainant first states that the order
failed to provide him with return rights after the completion of his
assignment. Complainant explains that this provision was a part of the
AJ's recommended remedy and a benefit that he would have received but
for the discrimination. Additionally, complainant contends that the
order failed to provide for grade retention upon return as described
in the AJ's recommended remedy. Complainant also asserts that the
Commission unnecessary restricted his opportunity to obtain a position
in Israel by limiting the agency's inquiry to an Industrial Specialist
or equivalent position. Last, complainant requests that the Commission
make the following revisions to the order: (1) require the agency to
comply with 29 C.F.R. � 1614.501(b); (2) state that the duration of the
assignment shall be five years; (3) reduce the time allowed for the agency
to determine backpay, interest, and other benefits; (4) state that for
the purposes of calculating backpay the discrimination occurred in 1989;
and (5) take official notice of overseas benefits, entitlements and
other considerations provided under DOD Directive 1400.25. The agency
did not file a response to complainant's request for reconsideration.
After a review of complainant's request to reconsider, 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. 01973838 (December 22, 1998) remains the Commission's final
decision. Considering complainant's request for reconsideration,
we find that the concerns raised are speculative and anticipate
noncompliance by the agency. The previous decision directed the agency
to place complainant into the position he would have filled but for
discrimination and also to provide him with "other benefits" denied due
to the discrimination. The agency shall comply with the ORDER in the
previous decision, as reprinted below. If complainant believes that
the agency has not complied with the ORDER, he can file a "petition
for enforcement" with the Commission at the appropriate time. See 29
C.F.R. � 1614.503(a). There is no further right of administrative appeal
on the decision of the Commission on this request for reconsideration.
ORDER (D1199)
The agency is ORDERED to take the following remedial action:
(A) Within thirty (30) calendar days of the date this decision becomes
final, the agency is directed to offer complainant immediate placement
in an Industrial Specialist GS-11 position in Israel, or a substantially
equivalent position even if such position is at a GS-12 or 13 level
providing that complainant is qualified for such position.
(B) The agency shall determine if complainant is due any back pay,
interest and other benefits, pursuant to 29 C.F.R. �1614.501, no later
than sixty (60) calendar days after the date this decision becomes
final. In conjunction with its back pay determination, the agency shall
determine if complainant would have been entitled to retain pay at the
GS-13 level, if he had been selected in 1990.<2> 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 complainant for the
undisputed amount within sixty (60) calendar days of the date the agency
determines the amount it believes to be due. 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."
(C) The agency shall provide training in the obligations and duties
imposed by the Title VII to the management officials responsible for
the actions at issue.
(D) The agency shall post at the appropriate site in the Israel
Contracting Center 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.
(E) 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,
including evidence that the corrective action has been implemented.
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.
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).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (P1199)
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:
April 11, 2000
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
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.
2Complainant requests that the agency compensate him for back pay at
the GS-13 grade level because if he had been selected for the position
in 1990, he would have retained his grade level. However, the AJ
determined that the evidence was insufficient to make this determination.
Therefore, the AJ recommended that issue be remanded to the agency to
determine if complainant would have been entitled to a grade retention.
The Commission agrees with the AJ in that the evidence is insufficient
to resolve the grade retention issue and orders the agency to determine
if complainant would have been entitled to pay retention if selected
for the Industrial Specialist position in 1990.