01A23105_r
03-19-2003
Daniel D. Nicholson, Complainant, v. Donald H. Rumsfeld, Secretary, Department of Defense, (Defense Logistics Agency), Agency.
Daniel D. Nicholson v. Department of Defense (Defense Logistics Agency)
01A23105
March 19, 2003
.
Daniel D. Nicholson,
Complainant,
v.
Donald H. Rumsfeld,
Secretary,
Department of Defense,
(Defense Logistics Agency),
Agency.
Appeal No. 01A23105
Agency No. JH-99-009
DECISION
BACKGROUND
Complainant filed an appeal with the Commission alleging that the agency
failed to comply with a final decision issued by the agency on October
17, 2001, and alleging dissatisfaction with the remedy provided in the
October 17, 2001 agency decision.
A review of the record reveals that during the relevant time, complainant,
a probationary employee, was employed as a Procurement Technician,
GS-1106-06, at the Defense Reutilization and Marketing Service (DRMS),
Battle Creek, Michigan. Believing he was subjected to discrimination
on the basis of disability when he was terminated from his position,
complainant sought EEO counseling and, subsequently filed a formal
complaint of discrimination on April 26, 1999. At the conclusion of
the investigation, complainant requested a final decision by the agency.
The agency issued a decision on October 17, 2001, finding that complainant
was discriminated against when the agency failed to reasonably accommodate
him and subsequently terminated him.
The agency ordered the following relevant remedies:
Nondiscriminatory placement into the same or a like position from which
complainant was terminated and for which he is qualified, at the same
grade level and which offers the same promotional opportunities;
The position must offer complainant the full opportunity and benefit
to which he was entitled under his initial appointment with DRMS,
dated December 15, 1997;
The back pay liability under Title VII and the Rehabilitation Act
of 1972, as amended, is limited to 2 years prior to the date the
discrimination was filed. Complainant filed his formal complaint
of discrimination on April 26, 1999. Therefore, his back pay
entitlement falls within the legal time limit and should be computed
in the manner prescribed by 5 C.F.R., Part 550.805, from the date
of his termination, which was November 4, 1998;
Expunction from all of the Agency's records of any adverse materials
relating to the discriminatory employment practice of failing to
accommodate complainant's disability when he was terminated during
his probationary period because of excessive absences;
DRMS will take such action necessary to effect the relief ordered
herein within 120 days from the day it receives this decision.
The term �days� means calendar days, not business days. The first
day of the 120-day period is the day after receipt of the decision
by the Commander of DRMS.
In a March 15, 2002 letter to the EEO Director at the agency's
headquarter's office, with a carbon copy to his Congressman, complainant
alleged that the agency failed to comply with the remedies set forth in
its October 17, 2001 final decision. Complainant stated that he was not
given the travel/relocation entitlements due under the agency decision.
Complainant also stated that he has missed the opportunity of progressing
from the series 1106 Procurement Technician to a series 1102 Contract
Specialist position. Complainant claimed that the series 1102 gives
the opportunity to progress to a GS11/12 level as well as numerous
education and transfer options. Complainant claimed that had he not been
discriminated against, he would have transferred into the 1102 series.
Additionally, complainant stated that he was denied overtime during the
relevant period. Finally, complainant explained that he still has not
received the back pay due under the agency's decision.
Complainant subsequently filed the present appeal with the Commission
alleging that the agency failed to comply with its October 17, 2001
final decision. Complainant notes that the agency failed to abide by
the 120 day time limit for implementation of the remedies in its final
decision. Complainant explains that his back pay was not processed in
a timely manner. Further, complainant states that the agency failed to
analyze �opportunities lost� as a result of discrimination. Specifically,
he claims that if his individual professional development plan would
have been reviewed, it would have revealed that he had submitted for
FY1999 courses as career goals. Finally, complainant explains that with
regard to his reinstatement with the agency in March 2002, he requests a
different duty station as an accommodation as a result of the �flagrant
treatment� he received.
In its response to complainant's appeal, the agency explains its actions
in complying with the October 17, 2001 final decision. The agency states
that upon receipt of the decision, it sent complainant a letter dated
November 2, 2001, requesting he provide a doctor's statement affirming
that he could perform the duties of his position and explaining the
accommodations he required. The agency notes that it received two
letters from complainant's doctors on November 9, 2001 and November
19, 2001, stating that complainant could perform the functions of his
position without accommodation. The agency states that for several weeks
it was unable to locate complainant's Official Personnel File (OPF).
The agency explains that eventually the Human Resource Operations Center
(HROC), in Columbus, Ohio, obtained the file and recreated complainant's
�historical file� showing personnel actions for each pay increase and
forwarded the copies to DFAS, in Charleston, South Carolina, so they
could calculate complainant's back pay. The agency explains that once
HROC created the historical file, it contacted complainant and arranged
for him to report to duty in Battle Creek, Michigan. The agency notes
that complainant reported to work on March 6, 2002, and thereafter, did
not show up for work again. The agency explains that complainant left
a voice mail message that he was returning to Pennsylvania because he
found �a hostile work environment.� The agency notes that it continued
efforts to get payment for complainant's back pay. The agency notes that
it learned on March 12, 2002, that DFAS wanted individual time sheets
for each pay period complainant was to be paid, and that on March 22,
2002, it completed and sent those documents to DFAS. According to
the agency, on April 24, 2002, DFAS finally issued a pay memorandum
showing complainant was entitled to adjusted gross back pay in the
amount of $54,767.32. The agency claims that payment was made in pay
period ending April 20, 2002, in the amount of $32,103.87 after taxes,
medical, and retirement deductions.
With regard to complainant's appeal, the agency argues that the appeal
should be dismissed as untimely filed. The agency notes that complainant
filed the appeal almost seven months after his receipt of the agency
decision. Alternatively, the agency states that if the appeal is viewed
as an appeal of noncompliance with an agency decision, it should also
be considered untimely. The agency argues that complainant should have
filed the appeal 30 days from March 28, 2002. The agency notes that
in an electronic mail message to his supervisor dated March 28, 2002,
complainant stated that he is in the process of submitting paperwork to
the appropriate officials, as specified within 30 days of when he knew
of the alleged noncompliance under 29 C.F.R. � 1614.504. The agency
argues that 30 days from March 28, 2002, the date complainant knew of the
alleged noncompliance, was April 27, 2002; however, the agency argues,
complainant did not file his appeal until June 4, 2002.
With regard to complainant's claim of noncompliance, the agency states
that at this point the reinstatement and back pay have been accomplished.
The agency acknowledges that it is late in complying with its own
deadline. The agency states that in implementing the decision, local
management was depending on other government agencies over which it had
no control to accomplish the reinstatement and process the back pay.
The agency claims that it undertook good faith efforts to implement its
decision and reinstate complainant with the appropriate back pay.
ANALYSIS AND FINDINGS
The Commission finds that complainant is challenging the remedy provided
in the agency's October 17, 2001 decision and is alleging that the agency
failed to comply with the order in the agency's October 17, 2001 decision.
A. Appeal from the October 17, 2001 Decision
The Commission finds that the agency properly determined that
complainant's appeal of its October 17, 2001 final decision was untimely.
The agency issued its final decision finding discrimination on October 17,
2001, and properly informed complainant of his appeal rights. Complainant
acknowledges receipt of the decision at the latest on October 22, 2001.
Complainant filed his appeal, at the earliest, in April 2002. Thus,
we find that complainant's appeal of the agency decision is untimely
and is DISMISSED pursuant to 29 C.F.R. � 1614.403(c).
B. Non-Compliance Appeal
The regulation set forth at 29 C.F.R. � 1614.504(a) provides that a final
action that has not been the subject of an appeal or civil action shall
be binding on the agency. If the complainant believes that the agency
has failed to comply with the terms of a decision, then the complainant
shall notify the EEO Director of the alleged noncompliance �within 30
days of when the complainant knew or should have known of the alleged
noncompliance.� 29 C.F.R. � 1614.504(a).
Complainant notified the agency's EEO Director of his allegations of
noncompliance as early as March 15, 2002. The record contains a copy
of the March 15, 2002 letter and shows that complainant sent a carbon
copy to his Congressman. In an April 10, 2002 letter, the agency's EEO
Director acknowledges receipt of complainant's March 15, 2002 letter.
The record reveals that complainant's Congressman contacted the agency
on complainant's behalf and the agency responded to the congressional
inquiry on April 12, 2002. In its response, the agency stated that it is
not possible to determine that complainant was deprived of advancement
opportunities during his separation because it is not known whether he
would have applied for and been qualified for available higher-graded
positions. Further, the agency noted that even if he was found to be
qualified, he would have been in competition with other applicants,
and he would not necessarily have been the person selected.
With regard to complainant's claim that he missed training opportunities,
the agency stated that there is no mandatory training requirements
for positions in the GS-1106 series. The agency noted that action had
been initiated to enroll complainant in courses to improve his computer
skills when he left DRMS on March 7, 2002. With regard to complainant's
assertion that DRMS did not pay for his relocation expenses to return to
Battle Creek to resume his employment, the agency stated that this was not
among the remedies provided in the October 17, 2001 decision. The agency
stated that because complainant did not show that discrimination forced
him to leave Battle Creek, Michigan, he is not entitled to payment of
relocation expenses for his move back to Battle Creek. With regard
to back pay, the agency stated that the gathering of records from a
number of geographically dispersed offices and agencies has resulted in
an unanticipated delay beyond the ordered 120-day period. The agency
noted that it contacted complainant to ascertain his earnings for the
period covered by his back pay entitlement and passed this information
on to DFAS for computation.
Aside from the April 12, 2002 response to complainant's Congressman,
there is no indication that the agency issued a final decision finding
it was in compliance with its October 17, 2001 decision and informing
complainant of his right to appeal such a decision with the EEOC.
The Commission rejects the agency's assertion that complainant's appeal
of noncompliance be dismissed as untimely filed. Despite the agency's
assertion, 29 C.F.R. � 1614.504 does not require complainant to file
an appeal within 30 days of when he knew or should have known of the
alleged noncompliance. EEOC Regulation 29 C.F.R. � 1614.504(a) require
a complainant to notify the EEO Director, in writing, of the alleged
noncompliance within 30 days of when the complainant knew or should have
known of the alleged noncompliance. In the present case, the record
reveals that complainant notified the agency of the alleged noncompliance
on March 15, 2002, and filed a timely appeal with the Commission at least
35 days after he served the agency with allegations of noncompliance
with the October 17, 2001 decision. See 29 C.F.R. � 1614.504(b).
With regard to complainant's claim that the agency failed to provide him
relocation expenses for his return to Battle Creek, Michigan, we find that
under the October 17, 2001 decision the agency was not required to pay
complainant relocation expenses. With regard to complainant's claim that
the agency failed to afford him an opportunity to progress to a series
1102 Contract Specialist, we find that the October 17, 2001 decision
required that complainant be reinstated as a Procurement Technician at
the GS-1106-06 level, the same position from which he was terminated in
November 1998. The record reveals that the agency reinstated complainant
as a Procurement Technician at the GS-1106-06 level effective November
1998, in accordance with the agency's final decision. The Commission
finds that under the October 17, 2001 decision, the agency is not required
to transfer complainant to a GS-1102 Contract Specialist series.
With regard to complainant's claim that he is entitled to compensation
for lost overtime, we find that the October 17, 2001 decision does
not require the agency to reimburse complainant for lost overtime he
might have worked during the period in question. The Commission finds
that although the agency's payment of the back pay was not made within
the 120-day time frame specified in the final decision, the agency has
substantially complied with this provision. The record confirms that
complainant received payment in the amount of $32,103.87 in back pay,
after subtracting the appropriate deductions. There is no indication that
the agency has acted in bad faith in implementing the relief ordered in
the October 17, 2001 decision. We note that complainant does not allege
that the agency improperly calculated the amount of back pay due to him.
The Commission concludes that complainant has failed to show that the
agency has not complied with the relief ordered in the agency's October
17, 2001 decision.
CONCLUSION
Complainant's appeal challenging the relief ordered in the October
17, 2001 decision is DISMISSED. The agency's decision that it is in
compliance with its October 17, 2001 final decision is AFFIRMED.
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 (S0900)
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. If you
file a request to reconsider and also file a civil action, 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
March 19, 2003
__________________
Date