v. ) Petition No. 04980037

Equal Employment Opportunity CommissionAug 5, 1999
04980037 (E.E.O.C. Aug. 5, 1999)

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.