05A30364
03-10-2003
Tonya M. Henley, Complainant, v. John Ashcroft, Attorney General, Department of Justice, (Bureau of Prisons) Agency.
Tonya M. Henley v. Department of Justice
05A30364
March 10, 2003
.
Tonya M. Henley,
Complainant,
v.
John Ashcroft,
Attorney General,
Department of Justice,
(Bureau of Prisons)
Agency.
Request No. 05A30364
Appeal No. 01A22186
Agency No. P-96-9046
Hearing No. 160-98-8686X
DENIAL OF REQUEST FOR RECONSIDERATION
The Department of Justice (agency) timely initiated a request to the Equal
Employment Opportunity Commission (EEOC or Commission) to reconsider
the decision in Tonya M. Henley v. Department of Justice, EEOC Appeal
No. 01A22186 (November 7, 2002). 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).
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. 01A22186 remains the Commission's final decision. The agency
contends that it was unaware that an appeal was pending before the
Commission and that the Commission should consider documentation it would
have submitted if the agency knew of the appeal. The record reveals,
however, that the agency submitted documentation to the Commission on
appeal which described its efforts to carry out the Commission's Order
for Relief. Therefore, the agency's contention that it did not know of
the appeal is not supported by the record and consequently, the agency has
failed to state an adequate basis for addressing the agency's arguments
again on reconsideration.
The parties are advised that there is no further right of administrative
appeal on the decision of the Commission on this request for
reconsideration. The Commission's Order set forth in the previous decision
is repeated below and the agency is hereby Ordered to comply in full.
ORDER
To the extent the agency has not already done so, the agency is ordered
to take the following remedial action within thirty (30) days of the
date this decision becomes final:
1. The agency shall compute complainant's back pay award to include
the following: (1) Determine the amount of back pay from April 22,
1996 through June 10, 1996 at the GS-8 level. This amount shall include
the New York rate of pay, shift differential, holiday differential,
and overtime pay<1>; (2) Determine the amount of back pay from June 11,
1996 through August 25, 2002, beginning at the GS-9 rate but including
yearly grade increases. This amount shall include the new York rate
of pay, shift differential, holiday differential, and overtime pay.<2>
Once the base back pay is determined then the agency shall calculate
interest in accordance with 5 C.F.R. �550.806.
2. The agency shall calculate the amount of TSP funds (including
interest) it failed to contribute to complainant's G-fund as a result
of the discrimination and transfer such amounts into her G-Fund.
In addition, the agency shall transfer from complainant's back pay amount
the additional contributions she would have made had her salary increased
at the back pay rate.
3. The agency shall reimburse complainant's travel expenses in the
amount $1,900.00.
4. The agency shall reimburse complainant 220 hours of annual leave
and 397.5 hours of sick leave.
5. The agency shall provide a minimum of twenty-four (24) hours of EEO
training to all supervisory and management officials at Metropolitan
Correction Center, New York with respect to eliminating discrimination
in the federal workplace and with special emphasis on the prevention
and elimination of discrimination based on sex and reprisal.
6. The agency shall provide a minimum of thirty-two (32) hours of
basic EEO training to all agency EEO management and staff in the
Northeast Regional Office. The agency shall address these employees'
responsibilities with respect to EEO complaint processing, eliminating
discrimination in the workplace with special emphasis on the prevention
and elimination of discrimination based on sex and reprisal.
POSTING ORDER (G0900)
The agency is ordered to post at its Department of Justice, Bureau of
Prisons, Metropolitan Correction Center, New York 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.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)
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 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)
(1994 & Supp. IV 1999). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 29 C.F.R. � 1614.409.
ATTORNEY'S FEES (H0900)
If complainant 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.
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
March 10, 2003
__________________
Date
1Complainant shall receive the same amount
of shift differential, holiday differential and overtime pay that the
selectee received.
2Complainant shall receive the same amount of shift differential,
holiday differential and overtime pay that the selectee received.