01993841_01994826
03-22-2002
Baltimore Bishop, Complainant, v. Dr. James G. Roche, Secretary, Department of the Air Force, Agency.
Baltimore Bishop v. Department of the Air Force
01993841 & 01994826
03-22-02
.
Baltimore Bishop,
Complainant,
v.
Dr. James G. Roche,
Secretary,
Department of the Air Force,
Agency.
Appeal Nos. 01993841 & 01994826
Agency Nos. ELOR95004 & ELOR950011
Hearing Nos. 380-96-8904 & 380-96-8905
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts the complainant's
appeal from the agency's final decision in the above-entitled matter.
After a review of the record in its entirety, including consideration
of all statements submitted on appeal, it is the decision of the Equal
Employment Opportunity Commission to affirm the agency's final decision
that discrimination had occurred in connection with the following
incidents: (a) complainant was charged with being absent without leave on
November 4 and 5, 1994, and was suspended for three days, from January
26-28, 1995; and (b) between March 3 and July 12, 1995, complainant
was not permitted to change his work schedule to work on Mondays and
holidays.<1> On page (3), item (11) of its response to complainant's
appeal, the agency indicated that it had provided the following relief:
Complainant's record was changed to remove the 4-5 November 1994 AWOL
and cancel the resulting 26-28 January 1995 suspension;
Complainant was paid $1,004.28 in back pay on 2 June 1999 for 4-5 November
1994 and 26-28 January 1995, as well as any missed holiday pay from 3
March 1995 to 12 July 1995;
By 21 May 1999, all 3rd Communications Squadron (3 CS) supervisors
received specific training on how to deal with the discrimination issues
raised by complainant;
The 3 CS commander initiated a unit climate assessment, performed by the
3 WG social actions office, which completed its assessment and briefing
on 27 July 1999;
In September 1998, the 3 WG commander distributed his sexual harassment
and discrimination policy, which has been prominently displayed in many
locations throughout Elmendorf AFB, including in 3 CS work areas;
The 3 WG commander will publish an article in the base newspaper
reiterating his support of the Air Force Equal Employment Opportunity
Treatment Program �The article has been drafted and will be published
in the near future; and
As of November 1998, the 3 CS was 100% trained on EO 2000, in furtherance
of the Air Force Policy on sexual harassment and discrimination.
In its final decision, the agency provided for an award of attorneys
fees and compensatory damages. Complainant's appeal did not address
either of these issues. In view of complainant's failure to identify
what additional relief, if any, that he was seeking on appeal, the agency
shall be directed to provide the Commission with documentation that it
had implemented the above-referenced remedial actions, and to provide
further relief, in accordance with our order below.
ORDER
The agency is ordered to take the following remedial action within thirty
(30) calendar days of the date that this decision becomes final:
The agency shall submit to the Commission a report of compliance, as
provided in the statement entitled "Implementation of the Commission's
Decision." The report shall include supporting documentation that the
corrective action identified in items (1) through (7) referenced above
has been implemented. With respect to item (2), referenced above,
the agency shall verify that the amount of back pay that it awarded
included missed holiday pay between March 3rd and July 12, 1995, and
that interest was included in the award.
The agency shall state in its compliance report whether it processed
complainant's claim for compensatory damages, and shall submit the
appropriate documentation in support thereof.
The agency shall consider taking disciplinary action against the
individual or individuals identified in its final decision as being
responsible for the discriminatory acts at issue in this complaint.
The agency shall report its decision to the compliance officer. If the
agency decides to take disciplinary action, it shall identify the action
taken. If the agency decides not to take disciplinary action, it shall
set forth the reason(s) for its decision not to impose discipline.
If these individuals have left the agency's employ, the agency shall
furnish documentation of their departure dates.
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.
The agency shall post at Elemendorf Air Force Base 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.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
The Commission may, in its discretion, reconsider the decision in this
case if the complainant or the agency submits a written request containing
arguments or evidence which tend to establish 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.
Requests to reconsider, with supporting statement or brief, must be filed
with the Office of Federal Operations (OFO) within thirty (30) calendar
days of receipt of this decision or within twenty (20) calendar days of
receipt of another party's timely request for reconsideration. See 29
C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for
29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999). All requests
and arguments must be submitted to the Director, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. In the absence of a legible postmark, the
request to reconsider shall be deemed timely filed if it is received by
mail within five days of the expiration of the applicable filing period.
See 29 C.F.R. � 1614.604. The request or opposition must also include
proof of service on the other party.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely, unless extenuating circumstances
prevented the timely filing of the request. Any supporting documentation
must be submitted with your request for reconsideration. The Commission
will consider requests for reconsideration filed after the deadline only
in very limited circumstances. See 29 C.F.R. � 1614.604(c).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (R0900)
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 (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
___03-22-02_______________
Date
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 complainant, complainant's representative
(if applicable), and the agency on:
__________________
Date
______________________________
1Complainant filed a third complaint, in which he claimed that the
agency retaliated against him for his earlier EEO complaints when,
on April 20. 1995, his third-level supervisor reported a discrepancy
with the license plates on his private vehicle to the security police.
In its final decision, the agency held that complainant was barred by the
doctrine of collateral estoppel from raising this complaint because the
matter had been adjudicated before the Merit Systems Protection Board.
Complainant does not challenge this holding on appeal.