Theresa R. Marr, Appellant,v.F. Whitten Peters, Acting Secretary, U.S. Department of the Air Force, Agency.

Equal Employment Opportunity CommissionApr 25, 2000
04990013 (E.E.O.C. Apr. 25, 2000)

04990013

04-25-2000

Theresa R. Marr, Appellant, v. F. Whitten Peters, Acting Secretary, U.S. Department of the Air Force, Agency.


Theresa R. Marr v. U.S. Department of the Air Force

04990013

April 25, 2000

Theresa R. Marr, )

Appellant, )

) Appeal No. 04990013

v. ) Agency No. KJOU92003

) Hearing No. 360-93-8230X

F. Whitten Peters, )

Acting Secretary, )

U.S. Department of the Air Force, )

Agency. )

__________________________________)

DECISION on PETITION FOR ENFORCEMENT

INTRODUCTION

On January 21, 1997, Theresa R. Marr (petitioner) filed a petition

with the Equal Employment Opportunity Commission (EEOC or Commission)

requesting enforcement of an Order issued in Theresa R. Marr v. Department

of the Air Force, EEOC Appeal No. 01941344 (June 27, 1996). In said

Order, the agency was directed to restore any sick and annual leave

petitioner was compelled to take in direct response to the hostile

environment caused by sexual and sex-based harassment in violation of

Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e

et seq. This petition for enforcement is accepted by the Commission

pursuant to 29 C.F.R. � 1614.503.

ISSUE PRESENTED

The issue presented is whether the agency properly calculated petitioner's

annual and sick leave time and restored the hours to appellant's leave

balances in accordance with this Commission's Order.

BACKGROUND

On December 30, 1991, and July 2, 1992, respectively, petitioner

filed an EEO complaint and an addendum to that complaint, alleging

that she was subjected to discrimination based on her sex (female),

and/or reprisal when she was subjected to a hostile work environment,

was nonselected for various promotions, and subjected to interference

with the EEO process when the alleged harassing official intimidated a

witness during EEO counseling. On November 3, 1992, the agency issued a

final agency decision (FAD) rejecting portions of petitioner's complaint

for untimely EEO contact. Petitioner appealed that decision to this

office. Thereafter, the EEOC remanded the complaint to the agency for an

investigation. Following an investigation of her complaint, petitioner

requested a hearing before an EEOC administrative judge (AJ). After the

hearing, the AJ issued a Bench Decision finding no discrimination,

which the agency adopted as its final decision. However, on appeal to

the Office of Federal Operations, the Commission found discrimination

with respect to petitioner's allegations of a hostile environment, and

with respect to her allegations regarding her supervisor's interference

with the EEO process. One of the remedies this Commission ordered was

that the agency "restore any sick and annual leave [petitioner] was

compelled to take in direct response to the hostile environment caused

by sexual and sex-based harassment. Appellant may have also taken sick

or annual leave in avoidance of the hostile work environment, for which

she should be reimbursed."

On December 24, 1996, the agency, in response to the Commission's Order,

devised a process whereby they determined petitioner's "average leave

usage" during her federal service career in order to ascertain the amount

of leave to be restored to petitioner's leave balances. Specifically,

the agency determined how much annual and sick leave petitioner used

prior to the harassment, and then subtracted that average from the actual

amount of leave she used for the periods in question. If the amount

of leave petitioner used was greater than her average leave usage, then

the agency multiplied this difference by her hourly salary at the time.

For instance, the agency determined that petitioner's prior average

annual leave use was 151 hours, and sick leave use was 97.5 hours.

The agency determined that petitioner used 216 hours of annual leave.

Therefore, the agency subtracted her 151 annual leave hours average

from her actual 216 annual leave hours, which yielded 65 hours above

her average annual leave use. Then, the agency multiplied 65 hours

with $20.48, petitioner's hourly rate of pay during 1992, to arrive

at $1331.20. This figure represented the amount of reimbursement for

petitioner's annual leave for the year 1992.

On January 21, 1997, petitioner filed a petition regarding the agency's

restoration and reimbursement of leave. She argued, in essence,

that the agency's use of an average annual leave use rate violated the

Commissions Order and as such, that the agency should be sanctioned for

resorting to such an "unexplained" and unsubstantiated computation.

She also argued that she should be reimbursed at her current rate of

pay, as opposed to her rate of pay during the periods in question.

Petitioner also requested additional attorney's fees for the agency's

failure to comply with the Commission's Order.

ANALYSIS AND FINDINGS

Since a victim of discrimination is entitled to be made whole, this

extends to the restoration of benefits, such as sick and annual leave.

However, a distinction must be made between restoration of sick leave and

a claim for monetary reimbursement for sick leave used. The distinction

was explained in Merriell v. Secretary of Transportation, EEOC Request

No. 05890596 (August 10, 1989):

[T]he Commission has previously determined that a claim for monetary

reimbursement with respect to the use of sick leave is essentially

a claim for compensatory damages arising from medical illnesses, which

thus cannot be recovered in a Title VII action. See [Conrad v. Department

of Interior,] EEOC Request No. 05880821 [December 18, 1988]. However,

a claim for restoration of sick leave hours which were allegedly taken

because of, or as a result of, discriminatory actions has been determined

to be a request for equitable damages which are awardable under Title

VII. See [Hampton v. Department of Air Force,] EEOC Appeal No. 01872448

(September 30, 1987). The restoration of leave is equivalent to an award

of lost benefits or other concomitant of employment which would have

been earned, retained or accrued absent the alleged discrimination. See,

e.g., Walker v. Ford Motor Co., 29 F.E.P. Cases 1259, [at] 1266 (11th

Cir. 1982). Accordingly, if leave was taken in order to avoid or recover

from discriminatory harassment, such leave must be treated as excused

administrative leave in order to make the appellant whole and place her

in the position she would have been in absent the discrimination. See

[Dailey v. Department of Transportation,] EEOC Appeal No. 01841151

(March 6, 1986).

Therefore, "a successful Title VII harassment complainant is entitled

to reimbursement of sick leave taken as a direct result of unlawful

discrimination." Meagher v. Secretary of Defense, EEOC Appeal No. 01923706

(May 19, 1993). The restoration of sick leave taken "for the purpose

of avoiding or recovering from discriminatory harassment was a valid

component of equitable relief under Title VII." As such, it is not part

of compensatory damages under the 1991 Civil Rights Act, but part of the

"make whole" remedy by placing her in the position she would have occupied

absent the discrimination. Albermarle Paper Co. v. Moody, 422 U.S. 405

(1975).

However, in order to be entitled to restoration of the leave, the employee

must demonstrate a causal connection between the harassment and need

to take leave. Velez v. Postmaster General, EEOC Appeal No. 01902746

(November 16, 1990). Petitioner did not indicate what leave time

was taken in response to the harassment. The only evidence of record

provided by petitioner is an eight-page chart entitled,"BEING SUBJECTED

TO A DISCRIMINATORY WORK ENVIRONMENT AFFECTED MY ATTENDANCE AT WORK. MY

ANNUAL LEAVE, SICK LEAVE, AND LEAVE WITHOUT PAY ARE PROVIDED." The chart

listed petitioner's entire annual leave, sick leave, and leave without

pay balances from 1989 through 1996, absent any explanation as to why,

when, or how much time petitioner needed to use as a direct result of

the harassment. Absent some evidence of a nexus between the two, we

find that in this particular case, the agency's "average leave usage"

calculation is a reasonable approach to demonstrating causation, in

other words, the possible effect of harassment upon petitioner during

the time in question. Although petitioner disputes the manner in which

the agency calculated her restored leave, she has provided no details

about what manner would be correct. Therefore, in view of the above,

the Commission finds that the agency's utilization of her "average leave

usage" in order to figure petitioner's annual and sick leave reimbursement

a reasonable place to begin our calculation.

Under the "make whole" remedy enunciated in Albemarle, we need only

place petitioner in the position she would have occupied absent the

discrimination. Absent discrimination, petitioner would not have taken

excess leave. As such, petitioner is entitled only to the restoration

of leave to her current federal employee leave balances. Therefore, we

find that petitioner is entitled to have her sick leave balance restored

with 89.5 hours, and her annual leave balance restored with 204 hours.

These hours were derived from the following figures:

Prior Average Amount Used

Leave Year Leave Used Leave Usage Over Average

1989 149 151 0 Annual Leave

171 97.5 73.5 Sick Leave

1990 251 151 100 Annual Leave

17 97.5 0 Sick Leave

1991 190 151 39 Annual Leave

99 97.5 1.5 Sick Leave

1992 216 151 65 Annual Leave

112 97.5 14.5 Sick Leave

Total Annual Leave = 204 hours

Total Sick Leave = 89.5 hours

Petitioner argued that agency claimed that she took only 17 hours of

sick leave during 1990, but that petitioner's records reflect that she

took 155 hours. If petitioner provides evidence showing that she took

more than 17 hours of sick leave in 1990, the agency shall restore her

sick leave according to average leave usage method discussed above.

Petitioner's claim for attorney's fees with regard to this petition

is denied.

CONCLUSION

Based upon a review of the record, and for the forgoing reasons, this

Petition for Enforcement is denied. However, for the reasons set forth

above, this matter is REMANDED to the agency for further processing in

accordance with this decision.

ORDER

The agency is ORDERED to restore the petitioner's leave balances as

forth in this decision within thirty (30) calendar days. The agency

shall submit the documentation to the Compliance Officer referenced

below within sixty (30) calendar days of the receipt of this decision.

IMPLEMENTATION OF THE COMMISSION'S DECISION (K0595)

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 appellant. If

the agency does not comply with the Commission's order, the appellant

may petition the Commission for enforcement of the order. 29 C.F.R. �

1614.503(a). The appellant 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 29 C.F.R. �� 1614.408,

1614.409, and 1614.503(g). Alternatively, the appellant 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. ��

1614.408 and 1614.409. 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 appellant files a civil

action, the administrative processing of the complaint, including any

petition for enforcement, will be terminated. See 29 C.F.R. � 1614.410.

STATEMENT OF RIGHTS - PETITION FOR ENFORCEMENT

RIGHT TO FILE A CIVIL ACTION (S0993)

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. If you file a request to reconsider and also file a

civil action, filing a civil action will terminate the administrative

processing of your complaint.

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:

April 25, 2000

________ __________________________

DATE Frances M. Hart

Executive Officer

Executive Secretariat