05a10105
03-23-2001
Barbara Bensing, Complainant, v. Robert B. Pirie, Jr. , Acting Secretary, Department of the Navy, Agency.
Barbara Bensing v. Department of the Navy
05A10105
03-23-01
.
Barbara Bensing,
Complainant,
v.
Robert B. Pirie, Jr. ,
Acting Secretary,
Department of the Navy,
Agency.
Request No. 05A10105
Appeal No. 01970742
Agency Nos. 94-00197-004; 94-00197-020
DISMISSAL OF REQUEST TO RECONSIDER
On November 16, 2000, the Department of the Navy filed a request to the
Equal Employment Opportunity Commission to reconsider the decision in
Barbara Bensing v. Richard J. Danzig, Secretary, Department of the Navy,
EEOC Appeal No. 01970742 (October 3, 2000). The agency argues that,
because the decision did not reach the division responsible for this
matter until October 17, 2000, its request is timely, although the agency
received it no later than October 11, 2000. The Commission's regulations
require that a request for reconsideration of a previous decision must
be filed within 30 days of its receipt. The agency's request was filed
more than 30 days from its receipt and is dismissed as untimely.<1>
29 C.F.R. � 1614.405(b). The decision of the Commission in EEOC Appeal
No. 01970742 (October 3, 2000) remains the Commission's final decision.
There is no further right of administrative appeal from a decision of
the Commission on a request for reconsideration. The agency is directed
to comply with the Order in EEOC Appeal No. 01970742 (October 3, 2000),
repeated below.
ORDER
The agency is ORDERED to take the following remedial action:
The agency is ordered to provide complainant a career-ladder promotion
to GS-6 effective April 1, 1994.
The agency is ordered to conduct a supplemental investigation to determine
whether complainant was entitled to further career-ladder promotions in
accordance with this decision.
The agency shall determine the appropriate amount of back pay, with
interest, and other benefits due complainant, pursuant to 29 C.F.R. �
1614.501, no later than sixty (60) calendar days after the date this
decision becomes final. The 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 the complainant for the undisputed
amount within sixty (60) calendar days of the date the agency determines
the amount it believes to be due. The 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."
If it has not already done so, the agency shall remove S1 from all
supervisory authority over complainant. Alternatively, the agency may
reassign complainant to an equivalent position acceptable to her.
The agency shall provide training to S1 addressing his responsibilities
with respect to eliminating discrimination in the federal workplace
and all supervisory and managerial responsibilities under the equal
employment opportunity laws. The training shall place special emphasis
on prevention and elimination of discrimination based on sex.
The issues of compensatory damages and attorney's fees and costs,
if any, are REMANDED to the agency for a supplemental investigation.
The agency shall request objective evidence from complainant in support
of her claim for compensatory damages, with sufficient specificity
to allow complainant to reasonably respond to the agency's request.
Complainant, through counsel, shall submit a request for attorney's
fees and costs in accordance with the Attorney's Fees paragraph set
forth below. The agency shall issue a final agency decision addressing
the issues of attorney's fees, costs, and compensatory damages no later
than sixty (60) days after the agency's receipt of all information.
The agency shall submit a copy of the final decision to the Compliance
Officer at the address set forth below.
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 of the
agency's calculation of backpay and other benefits due complainant,
including evidence that the corrective action has been implemented.
POSTING ORDER (G0900)
The agency is ordered to post at its Ordinance Station, Louisville,
Kentucky, facility 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 (H0900)
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.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0900)
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)(Supp. V 1993). 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 COMPLAINANT'S RIGHTS - ON REQUEST FOR RECONSIDERATION
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (P0900)
This decision of the Commission is final, and there is no further right
of administrative appeal from the Commission's decision. 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. 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.
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
___03-23-01_______________
Date
1Internal communication problems within an agency do not support extension
of the Commission's time limitations period for filing requests for
reconsideration. 29 C.F.R. � 1614.604(c).