04980037
08-05-1999
v. ) Petition No. 04980037
Cobey Turner v. Department of the Interior
04980037
August 5, 1999
Cobey Turner, )
Petitioner, )
)
v. ) Petition No. 04980037
) Appeal Nos. 01956390
) 01960518
)
Bruce Babbitt, )
Secretary, )
Department of the Interior, )
Agency. )
____________________________________)
GRANTING OF PETITION FOR ENFORCEMENT
INTRODUCTION
On September 15, 1998, the Equal Employment Opportunity Commission,
docketed a petition for enforcement (PFE) to examine the enforcement of
an Order for remedial relief set forth in Cobey Turner v. Department of
the Interior, EEOC Appeal Nos. 01956390 and 01960518 (April 27, 1998).
This petition for enforcement is accepted by the Commission pursuant to
29 C.F.R. �1614.503.
ISSUE PRESENTED
Whether the agency has fully complied with the Commission's Order for
relief in EEOC Appeal Nos. 01956390 and 01960518.
BACKGROUND
In Cobey Turner v. Department of the Interior, EEOC Appeal Nos. 01956390
and 01960518 (April 27, 1998), the Commission found that the petitioner
had been subjected to sexual harassment and ordered the agency to,
inter alia,: pay petitioner non pecuniary compensatory damages and
educational expenses in the amount of $40,296.00; pay attorney's fees;
post a notice; and, within 30 days of its receipt of documentation
submitted by appellant, recalculate appellant's entitlement to past and
future medical expenses, pay the past medical expenses and issue a final
agency decision (FAD) determining the amount of future medical expenses
awarded. In a July 29, 1998 PFE, petitioner asserted that the agency
had not complied with the Commission's order of compensatory damages or
responded to her attorney's fees submission to date. Petitioner indicated
that she had submitted documentation to support a total request of
$518,316.00<1> in future medical expenses and $8,284.27 in past medical
expenses.<2> Petitioner requested interest on all amounts that had not
yet been paid by the agency, including interest on the award of costs.
The attorney also requested that the Commission award an additional amount
in attorney's fees for the preparation of the petition for enforcement. In
a supplement to the PFE, petitioner reiterated her arguments and further
alleged that the agency's posting of the notice ordered by the decision
was inappropriate since it indicated that the agency had already taken
the corrective action ordered by the Commission, when it had not yet
done so.
In an October 7, 1998 compliance report, the agency indicated
the following actions taken in compliance with the Commission's
Order. Specifically, the agency stated that it had already paid petitioner
$10,000.00 in non-pecuniary compensatory damages as part of its FAD,
and had, as of September 22, 1998, paid petitioner an additional
$30,000.00 ordered by the Commission. The remaining $296.00 ordered by
the Commission to reimburse petitioner for educational expenses, was
scheduled for payment on September 29, 1998, but the agency had not yet
confirmed this payment. The agency stated that, with regard to the past
and future medical compensatory damages documentation, the future medical
expenses documentation submitted by petitioner's counsel was submitted
by the agency's Office of Employment Opportunity to the Department of
Health and Human Services (HHS) for a medical evaluation. The agency
indicated that it expected the evaluation to be completed on October
19, 1998 and stated that, upon receipt, it would work on completing the
determination on past and future compensatory damages. It estimated that
it would resolve the matter within three weeks from its receipt of the
HHS medical evaluation. The agency indicated that the full amount of
attorney's fees requested by petitioner had been approved and processed
for payment as of October 6, 1998. It further stated that petitioner's
request for interest would require additional consideration.
With regard to the notice posting ordered by the previous decision,
the agency admitted that its initial posting of the ordered notice
by its subagency, the Bureau of Land Management (BLM), was deficient,
and that, therefore, a notice which accurately reflected the remedial
actions taken by BLM was posted on August 17, through October 18, 1998.
Petitioner has responded to the agency's compliance report by asserting
in an October 14, 1998 reply, that because of the late payment of the
compensatory damages, she continues to request interest from the June 27,
1998 date that the amount should have been paid until the September 22,
1998 date of payment. Petitioner acknowledges receipt of a check for
$82,427.51, which represented the full amount of attorney's fees and
costs she had requested for the time period up until the submission
of her initial attorney's fees package. She asserts that the agency
has not paid the additional attorney's fees and costs requested by
petitioner in her petition for enforcement and subsequent submissions.
She continues to request interest on her costs and on the $296.00 payment
she had not received as of that date. Finally, petitioner asserts that
the agency has still not complied with the portion of the Commission's
Order concerning past and future medical expenses.<3>
ANALYSIS AND FINDINGS
The Commission's finding of discrimination requires that the agency
make petitioner "whole" by restoring her to a position where she would
have been were it not for the unlawful discrimination. Franks v. Bowman
Transportation Co., 424 U.S. 747, 764 (1976). See also Albemarle Paper
Co. v. Moody, 422 U.S. 405, 418 (1975). To do so, the agency was required
to accomplish several actions discussed in EEOC Appeal Nos. 01956390
and 01960518.
Our review of petitioner's PFE and the agency's compliance report
indicates that the agency has delayed in the payment of compensatory
damages and has also, thus far failed to issue the FAD concerning
future compensatory damages which was ordered by the Commission. The
Commission has previously awarded interest for the delay in payment of
proven compensatory damages. See April v. Department of Agriculture, EEOC
Appeal No. 01963775 (June 15, 1997). An additional award of $30,296.000
in compensatory damages became due as of June 27, 1998. $30,000.00 of
this award was paid on September 22, 1998, but the remaining $296.00 had
still not been paid as of petitioner's October 14, 1998 reply. Therefore,
we will order the agency to pay interest on the delay in payment for
both amounts.
With regard to the payment of past and future medical expenses, we
find that the agency has not complied with the Commission's order,
which directed it to, within 30-days of its receipt of appellant's
documentation, "recalculate appellant's entitlement to past and future
medical expenses, pay the past medical expenses for which documentation
has been submitted, and issue a final agency decision with appropriate
appeal rights determining the amount of future medical expenses awarded."
Turner v. Dept. of the Interior, EEOC Appeal Nos. 01956390 and 01960518,
p. 14. As of the present date, there is no indication that the agency
has completed any of these actions. Therefore, we direct the agency
to comply with our previous order without further delay. Since under
the terms of the Commission's Order, petitioner became entitled to an
award of all past pecuniary damages for which medical documentation was
submitted, as of June 28, 1998, ($8,284.27) she is entitled to interest
on the amount that should have been paid as of that date until the date
of its eventual payment by the agency.<4> See April supra. The agency
is advised that any additional delay may provide grounds for an award
of additional interest for delay in payment.
Petitioner has also requested interest on the award of costs paid by
the agency. Once a specific sum of attorney's fees has been agreed
to or awarded, interest is available on a delay in payment. See Cole
v. U.S. Postal Service, EEOC Petition No. 04950009 (February 19, 1997). We
note that since a specific sum of costs was not awarded prior to the
agency's payment of the attorney's fees award, no interest payment is
warranted herein.
We note that petitioner has requested additional attorney's fees for the
work she performed in preparation of the PFE. Petitioner's additional
work herein has been necessitated by the agency's noncompliance. Thus, the
agency shall reimburse petitioner for attorney's fees and costs incurred
in connection with the filing of this petition for enforcement. See
Terrell v. Dept. of Health and Human Services, EEOC Petition No. 04950018
(November 7, 1996).
Finally, with regard to the required posting of the notice, we find that
the agency's second restated posting still did not contain the explicit
language which indicates both the nature of the violation found and the
specific relief awarded by the Commission. Therefore, after the agency
has fully complied with this Order in all other respects, the agency
shall post the same notice included in the previous appellate decision,
as previously directed by the Commission.
Consequences of Failure to Comply
Although the agency appears to be in some doubt on this point, it is bound
by the Order of the Commission. 29 C.F.R. �1614.502(a). The Commission
is not without recourse in the face of recalcitrance:
[T]his Commission has the inherent power to control and prevent abuse
of its orders or processes and its procedure. The procedures contained
in its regulations are no more or no less, than means necessary to
eliminating unlawful employment discrimination in Federal employment.
Buren v. U.S. Postal Service, EEOC Request No. 05850299 (November
18, 1985). The Commission can and will impose sanctions for agency
malfeasance. See Byrd, et al., v. Department of Agriculture, EEOC
Appeal No. 01961893 (July 3, 1997), petition for enforcement granted,
EEOC Petition No. 04980004 (December 12, 1997). Further, should the
agency fail to comply with the actions mandated by the Order set forth
below, the Commission is expressly authorized to issue a "show cause"
notice to the Secretary of the agency, and can require the Secretary to
appear in person before the Commission to explain the agency's continuing
failure to comply. 29 C.F.R. �1614.503(e). Continuing failure to comply
with the Order of the Commission can also result in this case being
certified to the Office of Special Counsel for enforcement action. 29
C.F.R. �1614.503(f).
CONCLUSION
Based upon review of the record and submission of the parties, and for
the foregoing reasons, the Commission finds that the agency has not
complied fully with the Order set forth in EEOC Appeal Nos. 01956390
and 01960518 and therefore petitioner's petition for enforcement is
GRANTED. The Commission therefore, orders the agency to comply with its
prior order by taking the actions set forth in the order below.
ORDER
A. The agency is ORDERED to, within 30 days of the date this decision
becomes final, issue petitioner a check for interest accrued on the
$30,000.00 and $296.00 sums awarded by the Commission. If the agency
has not already done so, it shall also issue a check for the $296.00
amount at this time. The interest shall be payable from the date on
which the agency was required to have paid each amount pursuant to the
Commission's previous Order until the actual date of payment. Interest
shall be computed in accordance with the guidance contained in 5
C.F.R. �550.806(d) and (e) (1996).
B. The agency is ORDERED to, within 30 days of the date this decision
becomes final, recalculate petitioner's entitlement to past and future
medical expenses, pay the $8,284.27 in past medical expenses, with
interest, for which documentation has been submitted, and issue a final
agency decision with appropriate appeal rights determining the amount
of future medical expenses awarded.
C. The agency shall reimburse petitioner for reasonable attorney's fees
and costs incurred in connection with the filing of this petition for
enforcement. The attorney shall submit a verified statement of fees to
the agency within 30 days of the date this decision becomes final. The
agency shall then process the claim for attorney's fees, without undue
delay, in accordance with 29 C.F.R. �1614.501.
D. The agency is ORDERED to, at the completion of all other steps taken
herein, post the attached notice.
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.
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.
STATEMENT OF PETITIONER'S RIGHTS ON PETITION FOR ENFORCEMENT
RIGHT TO FILE A CIVIL ACTION (R0993)
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. 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. 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:
August 5, 1999
__________________ _______________________________
DATE Frances M. Hart
Executive Officer
Executive Secretariat
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
An Agency of the United States Government
This Notice is posted pursuant to an Order by the United States Equal
Employment Opportunity Commission dated ___________ which found that
a violation of �501 of the Rehabilitation Act of 1973, as amended,
29 U.S.C. �791 et seq., has occurred at this facility.
Federal law requires that there be no discrimination against any
employee or applicant for employment because of the 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 Interior, Bureau of Land Management, Craig,
Colorado facility, will comply with such Federal law and will not take
action against individuals because they have exercised their rights
under law. It has remedied the individual affected by the Commission's
finding of sexual harassment discrimination by, inter alia,: considering
disciplinary action against the responsible management official, an
award of compensatory damages, and conducting training for managers
and staff on EEO responsibilities. The Department of the Interior,
Bureau of Land Management, Craig, Colorado facility, 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 subject employees to sexual
harassment or retaliate against them.
The Department of the Interior, Bureau of Land Management, Craig,
Colorado facility, 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
1Petitioner is advised that this amount exceeds the $300,000.00 cap on
non pecuniary and future pecuniary compensatory damages imposed by �102
of the Civil Rights Act of 1991.
2Petitioner indicated that she was not including this documentation in
her submission to the Commission.
3As of July 13, 1999, inquiries by the Compliance Officer assigned to
this matter did not disclose further agency compliance on this point.
4In this regard, the agency is advised that the Commission's Order
instructed the agency to pay the past medical expenses, and issue a final
agency decision on the amount of future medical expenses to be awarded.