05990139
09-13-2000
William D. Morris, Complainant, William S. Cohen, Secretary, Department of Defense, (Defense Logistics Agency), Agency.
William D. Morris v. Department of Defense (Defense Logistics Agency),
Request No. 05990139
September 13, 2000
.
William D. Morris,
Complainant,
William S. Cohen,
Secretary,
Department of Defense,
(Defense Logistics Agency),
Agency.
Request No. 05990139
Appeal No. 01962984
Agency No. DM-92-056
Hearing No. 170-95-8281X
DENIAL OF REQUEST FOR RECONSIDERATION
The agency initiated a request to the Equal Employment Opportunity
Commission (EEOC or Commission) to reconsider the decision in William
D. Morris v. Department of Defense (Defense Logistics Agency), EEOC Appeal
No. 01962984 (October 1, 1998).<1> 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 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
to as 29 C.F.R. � 1614.405(b)). The agency's request is denied.
However, based upon review of the record, the Commission finds that the
previous decision's order should be modified. The previous decision
awarded complainant back pay between February 27, 1992 and June 8, 1992.
The record indicates that complainant was off duty from April 11,
1992 through June 8, 1992, due to an on-the-job injury and received
workers' compensation benefits. Furthermore, the EEOC Administrative
Judge determined and the previous decision affirmed that the agency
did not discriminate against complainant during this relevant time
period because complainant was not at work. Accordingly, we find that
the previous decision's Order should be modified and the agency shall
determine the appropriate amount of back pay, interest, and other benefits
due complainant, for any work missed by complainant between February 27,
1992 and April 10, 1992, rather than between February 27, 1992 and June 8,
1992.
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. 01962984 is modified as discussed herein. There is no further
right of administrative appeal on the decision of the Commission on this
request for reconsideration.
ORDER
1. Within thirty (30) calendar days of the date this decision becomes
final, the agency shall determine the appropriate amount of back pay,
interest and other benefits due complainant, for any work missed by the
complainant between February 27, 1992 and April 10, 1992, because of the
agency's failure to accommodate the complainant's medical restrictions,
pursuant to 29 C.F.R. �1614.501. Complainant shall cooperate in the
agency's efforts to compute the amount of back pay and benefits due,
and shall provide all relevant information requested by the agency.
If there is a dispute regarding the exact amount of back pay and/or
benefits, the agency shall issue a check to complainant for the
undisputed amount within thirty (30) calendar days of the date the
agency determines the amount it believes to be due. Complainant may
petition for enforcement or clarification of the amount in dispute.
The petition for clarification or enforcement must be filed with the
Compliance Officer, at the address referenced in the statement entitled
"Implementation of the Commission's Decision."
2. Within ten (10) calendar days of the date this decision becomes
final, the agency shall give complainant a notice of his right to submit
objective evidence (pursuant to the guidance given in Carle v. Department
of the Navy, EEOC Appeal No. 01922369 (January 5, 1993)) in support of
his claim for compensatory damages within forty-five (45) calendar days
of the date complainant receives the agency's notice. The agency shall
complete the investigation on the claim for compensatory damages within
seventy-five (75) calendar days of the date this decision becomes final.
Thereafter, the agency shall process the claim in accordance with 29
C.F.R. 1614.108(f).
3. Within sixty (60) calendar days of the date this decision becomes
final, the agency shall provide training to all responsible management
officials in the requirements of the Rehabilitation Act of 1973 regarding
their obligation to provide a reasonable accommodation to an employee
with a disability. Documentation evidencing completion of such training
shall be submitted to the Compliance Officer within thirty (30) calendar
days thereafter.
4. The agency shall post at the Defense Distribution Region East,
Warehousing Division, New Cumberland, Pennsylvania, 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 within ten
(10) calendar days of the expiration of the posting period.
5. The agency is further directed to submit a report of compliance, as
provided in the statement entitled "Implementation of the Commission's
Decision." The report shall include supporting documentation.
POSTING ORDER (G1092)
The agency is ORDERED to post at its Defense Distribution Region East,
Warehousing Division, New Cumberland, Pennsylvania, 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.
ATTORNEY'S FEES (H1199)
If complainant 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.
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (Q0400)
This decision affirms the agency's final decision/action in part, but it
also requires the agency to continue its administrative processing of a
portion of your complaint. 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 on both that portion
of your complaint which the Commission has affirmed AND that portion
of the complaint which has been remanded for continued administrative
processing 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 (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
September 13, 2000
__________________
Date
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 ("EEOC") dated ___________ which
found that a violation of the Rehabilitation Act of 1973, 29 U.S.C. 791
et. seq., has occurred at the Department of Defense, Defense Logistics
Agency, Defense Distribution Region East, Warehousing Division, New
Cumberland, Pennsylvania (hereinafter "DDRE").
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 DDRE supports and will comply with such Federal law and will not
take action against individuals because they have exercised their rights
under law.
The DDRE has been found to have denied a reasonable accommodation to
an employee with a disability by failing to timely reassign him from
a warehousing job to an office job. As a result, the agency has been
ordered by the EEOC to award the employee back pay for any missed work
opportunities, and award appropriate compensatory damages and attorney's
fees to the employee. Further, the agency has been ordered to provide
training in the requirements of the Rehabilitation Act to the responsible
management officials at the DDRE who were responsible for engaging in
discrimination. The DDRE 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 retaliate against employees who file EEO complaints.
The DDRE 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
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.