05980864
06-11-1999
Theodore L. Ames, Appellant, v. Louis Caldera, Secretary, Department of the Army, Agency.
Theodore L. Ames v. Department of the Army
05980864
June 11, 1999
Theodore L. Ames, )
Appellant, )
)
v. ) Request No. 05980864
) Appeal No. 01960985
Louis Caldera, ) Agency No. 93-11-0079
Secretary, )
Department of the Army, )
Agency. )
)
DENIAL OF REQUEST FOR RECONSIDERATION
On June 3, 1998, the Department of the Army (agency) timely initiated
a request to the Equal Employment Opportunity Commission (EEOC or
Commission) to reconsider the decision in Theodore L. Ames v. Department
of the Army, EEOC Appeal No. 01960985 (May 15, 1998). EEOC regulations
provide that the Commissioners may, in their discretion, reconsider
any previous Commission decision. 29 C.F.R. �1614.407(a). The party
requesting reconsideration must submit written argument or evidence
which tends to establish one or more of the following three criteria:
new and material evidence is available that was not readily available
when the previous decision was issued, 29 C.F.R. �1614.407(c)(1);
the previous decision involved an erroneous interpretation of law,
regulation, or material fact, or misapplication of established
policy, 29 C.F.R. �1614.407(c)(2); or the previous decision is of such
exceptional nature as to have substantial precedential implications,
29 C.F.R. �1614.407(c)(3).
Upon review of the agency's request for reconsideration, the previous
decision, and the entire record, the Commission finds that the agency's
request does not meet any of the criteria of 29 C.F.R. �1614.407(c).
Accordingly, it is the decision of the Commission to DENY the agency's
request for reconsideration. The decision in Appeal No. 01960985
remains the Commission's final decision. There is no further right
of administrative appeal from the decision of the Commission on this
request for reconsideration.
ORDER (C1092)
The agency is ORDERED to take the following remedial action:
The agency is to change the relevant job elements of appellant's rating
to "Exceeded," raise his overall rating to "Exceptional," and award any
lost benefits or cash awards appellant may have been entitled to had he
not been discriminated against.
As appellant has claimed compensatory damages, within thirty (30)
days after receipt of this decision if he has not already done so,
appellant is to provide the agency with evidence in support of his claim
as outlined in Carle v. Department of the Navy, EEOC Appeal No. 01922369
(January 5, 1993). Within sixty (60) days of receipt of appellant's
evidence, the agency shall notify appellant of the amount, if any, of
compensatory damages it has determined is due. If there is a dispute
regarding the exact amount of damages, the agency shall issue a check to
appellant for the undisputed amount within sixty (60) days of the date
the agency determines the amount it believes to be due. Appellant 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 entitled,
"Implementation of the Commission's Decision."
The responsible agency officials who discriminated against appellant
are to receive EEO training.
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 verifying
that the corrective action has been implemented.
POSTING ORDER (G1092)
The agency is ORDERED to post at its Fort Huachuca, Arizona, 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 (H1092)
If appellant has been represented by an attorney (as defined by
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.
RIGHT TO FILE A CIVIL ACTION (P0993)
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.
It is the position of the Commission that 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.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from
the date that you receive this decision. To ensure that your civil
action is considered timely, you are advised to file it WITHIN THIRTY
(30) CALENDAR DAYS from the date that you receive this decision or
to consult an attorney concerning the applicable time period in the
jurisdiction in which your action would be filed. 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 (Z1092)
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:
June 11, 1999
Date Frances M. Hart
Executive Officer
Executive Secretariat
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 Department of the Army, Fort Huachuca, Arizona, supports and will
comply with such Federal law and will not take action against individuals
because they have exercised their rights under law.
The Department of the Army, Fort Huachuca, Arizona, has remedied the
employee affected by the Commission's finding of discrimination by
correcting the employee's performance appraisal and awarding any lost
benefits or cash awards. The Department of the Army, Fort Huachuca,
Arizona, 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 Department of the Army, Fort Huachuca, Arizona, 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