04980031
04-18-2000
Karen J. Wenrich v. Department of the Interior
Karen J. Wenrich v. Department of the Interior
04980031
April 18, 2000
Karen J. Wenrich, )
Petitioner, )
)
v. ) Petition No. 04980031
) Appeal No. 01942943
Bruce Babbitt, ) Agency Nos. WGS-92-001, 003, 014
Secretary, )
Department of the Interior,)
Agency. )
)
DECISION ON PETITION FOR ENFORCEMENT
On July 7, 1998, the Equal Employment Opportunity Commission (EEOC or
Commission) docketed a Petition for Enforcement from Karen J. Wenrich
(petitioner), requesting enforcement of the Commission's order in Karen
J. Wenrich v. Department of the Interior, EEOC Appeal No. 01942943
(November 15, 1995). The Petition for Enforcement was properly filed
in accordance with 29 C.F.R. �1614.503(a).<1> For the reasons set forth
herein, the petition is GRANTED.
ISSUE PRESENTED
The issue presented in this petition is whether the agency has fully
complied with the Order of the Commission set forth in EEOC Appeal
No. 01942943.
BACKGROUND
Petitioner filed three formal EEO complaints alleging discrimination in
violation of Title VII of the Civil Rights Act of 1964, as amended, 42
U.S.C. �2000e et seq. The agency issued a final agency decision (FAD)
on the consolidated complaints in which it admitted discriminating
against petitioner with regard to six of the nine issues raised in
her complaints, and awarded certain relief. Petitioner appealed to
the Commission, which issued the above-referenced decision in Appeal
No. 01942943 finding discrimination on a seventh issue, and modifying
the FAD to award petitioner additional relief.
In the instant petition for enforcement, petitioner cites four elements
of relief which she argues the agency has not provided in full:
(1) when the agency issued her a lump-sum payment for annual leave, it
calculated the payment at the wrong rate, using the pay rate for GS-15,
step 5, rather than GS-15, step 6;
(2) the agency was supposed to "train and/or re-train" specified personnel
in EEO policies, procedures, and guidelines, but instead only reported
that these personnel had completed sexual harassment training in 1991
and 1992, long before the FAD was ever issued;
(3) the agency was supposed to offer her written assurances of no further
acts of discrimination, but that the letter she received omits the word
"further"; and
(4) the agency has not provided petitioner with a breakdown of the
calculations used to determine the amount of back pay to which she was
entitled, and that petitioner believes the total to be higher than what
the agency has paid.
The agency asserts that it has provided all of the relief required.
ANALYSIS and FINDINGS
The Commission has reviewed the entire record of the case, including the
agency's report of compliance and supporting documents. The Commission
finds that the agency has not fully provided the relief awarded to
petitioner, and the petition for enforcement therefore is GRANTED.
Regarding Item 1, the rate of pay for annual leave, the Commission finds
that the agency has complied with this provision of the relief award.
Documentation provided by the agency shows that, although petitioner
initially was paid for her annual leave at the rate of GS-15, step 5,
the agency subsequently calculated the difference had she been paid
at the rate of GS-15, step 6 (317 hours x $1.14/hour = $361.38, less
payroll deductions) and tendered this amount to petitioner as part of
a larger back pay payment. The Commission therefore will not order
further action on this item.
Regarding Item 2, EEO training, the Commission finds that the agency has
not complied with this provision of the relief award. The terms of the
award, issued in 1994, plainly stated that the agency would "train and/or
retrain" specified personnel. The agency may not rely upon training given
in 1991 and 1992 to meet this obligation. The Commission therefore will
order the agency to provide such training.
With regard to Item 3, the written assurances, the July 10, 1994, letter
to petitioner from the Chief Geologist of the agency's Geological Survey
does in fact omit the word "further." While this might seem a mere
quibble, intra-agency correspondence among the agency's EEO personnel
notes that the difference between assurances against "further unlawful
acts of discrimination" and mere "unlawful acts of discrimination" is
the difference between the agency admitting that it had discriminated
against petitioner or not. The Commission therefore will order the
agency to re-issue the letter with the addition of the word "further,"
as was originally provided.
Finally, with regard to Item 4, documentation showing the calculation
of back pay, the agency has submitted documentation in support of its
calculations. However, the Commission finds that this documentation,
which consists of ledger sheets showing additional pay by pay-period, is
less than comprehensible. Among other short-comings, the documentation
does not set forth in a straight-forward manner the applicable rates of
pay for each time period under consideration, i.e., the rate of pay at
which petitioner was paid, the rate of pay at which she should have been
paid, and the difference to be paid. Also, the time frames in question
are identified only by pay-period number, not by date. The agency is
obliged to provide documentation which sets forth these calculations in
a manner that petitioner and her representative can comprehend, in order
to ascertain whether the agency has, in fact, paid petitioner the amount
to which she is entitled. See, e.g., Bell v. Dept. of Veterans Affairs,
EEOC Petition No. 04990022 (October 22, 1999). The Commission therefore
will order the agency to provide such clarified documentation.
CONCLUSION
Based upon a review of the record, and for the foregoing reasons, the
Petition for Enforcement is GRANTED. The agency shall take such action
as is set forth in the Order of the Commission, below.
ORDER
The agency is ORDERED to take the following action:
(1) Within ninety (90) days of the date this decision is received,
the agency shall provide EEO training to the personnel specified in the
final agency decision, regardless of whether any such individual still
occupies the position held at the time of the events at issue, provided
only that such individual is still employed by the agency in any capacity.
(2) Within thirty (30) days of the date on which this decision is
received, the agency shall reissue the June 10, 1994, letter of assurance
including the word "further."
(3) Within thirty (30) days of the date on which this decision is
received, the agency shall provide to petitioner and her representative
clarified documentation showing the calculations on which the payment
of back pay and benefits was based.
(4) The agency shall submit a report of compliance to the compliance
officer, as set forth below, including evidence that the above-ordered
actions have been taken. The agency shall provide a copy of this report
to petitioner and her representative.
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
petitioner. If the agency does not comply with the Commission's order,
the petitioner may petition the Commission for enforcement of the order.
29 C.F.R. � 1614.503(a). The petitioner 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 petitioner 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 petitioner 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).
ATTORNEY'S FEES (H1199)
If petitioner 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.
STATEMENT OF RIGHTS - PETITION FOR ENFORCEMENT
PETITIONER'S RIGHT TO FILE A CIVIL ACTION (R1199)
This is a decision requiring the agency to continue its administrative
processing of your complaint. However, if you wish to file a civil
action, you have the right to file such action in an appropriate United
States District Court WITHIN NINETY (90) CALENDAR DAYS from the date
that you receive this decision. In the alternative, you may file a
civil action AFTER ONE HUNDRED AND EIGHTY (180) CALENDAR DAYS of the date
you filed your complaint with the agency, or filed your appeal with the
Commission. 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. 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 18, 2000
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to petitioner, petitioner's representative
(if applicable), and the agency on:
Date
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.