07A20089
10-09-2003
Donald G. Gay, Complainant, v. Hansford T. Johnson, Acting Secretary, Department of the Navy, Agency.
Donald G. Gay v. the Department of the Navy
07A20089
10-09-03
.
Donald G. Gay,
Complainant,
v.
Hansford T. Johnson,
Acting Secretary,
Department of the Navy,
Agency.
Appeal No. 07A20089
Agency Nos. 99-44466-002
99-44466-006
Hearing No. 110-99-8320X
DECISION
On April 18, 2002, the agency filed an appeal with this Commission
concerning complainant's equal employment opportunity (EEO) complaint
of unlawful employment discrimination in violation of Section 501 of
the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29
U.S.C. 791 et seq. In the underlying complaint, complainant, a Plastic
Fabricator, WG-4352-10, at the Trident Refit Facility, King's Bay,
Georgia, alleged that he was discriminated against on the basis of his
disability (anxiety/stress disorder) and in retaliation for engaging in
prior EEO activity when: (1) on August 5, 1998, he was denied a reasonable
accommodation when he received a memorandum directing him to return to his
previous shop for the assignment of regular duties; and (2) management
failed to process his CA-8 Form in a timely manner. At the conclusion
of the investigation, complainant received a copy of the investigative
report and requested a hearing before an EEOC Administrative Judge (AJ).
On September 27, 2001, at the conclusion of the hearing, the AJ issued
a bench decision finding, among other things, that complainant was a
qualified individual with a disability and that he was discriminated
against as set forth above. On March 6, 2002, the agency received a
copy of the AJ's decision, his awards concerning compensatory damages
and attorney's fees and the hearing transcripts. On April 15, 2002,
the agency issued its notice of final order and appeal. On April 18,
2002, the agency filed its appeal with the Commission.<1>
Pursuant to 29 C.F.R. � 1614.110(a), if an agency decides not to fully
implement the decision of an administrative judge then it must first issue
a final order and then simultaneously file an appeal with the Commission
in accordance with 29 C.F.R. � 1614.403. A copy of the appeal must be
appended to the final order. The Commission's Management Directive 110
(EEO MD-110), November 9, 1999, provides that if the agency fails to
issue a final order and file an appeal with the issuance of the order,
the Administrative Judge's decision will be deemed ratified by the agency
upon the expiration of the agency's 40-day period for accepting or not
accepting the Administrative Judge's decision. EEO MD-110, 9-7, note 4.
In the instant case, we find that the agency filed its appeal in an
untimely manner. We note in this regard that although the agency, on
March 6, 2002, received a copy of the AJ's decision, his awards concerning
compensatory damages and attorney's fees and the hearing transcripts,
it did not file its appeal with the Commission until April 18, 2002,
which was beyond the 40-day filing period.<2> Since the agency's appeal
was untimely, we find that it failed to take final action during the
40-day period set forth at 29 C.F.R. � 1614.110(a). Accordingly, the
AJ's decisions became the final action of the agency on April 15, 2002.
McCue v. United States Postal Service, EEOC Appeal No. 01A13411 (August
8, 2002).
On appeal, the agency contends, among other things, that complainant was
not an individual with a disability and that the award of $300,000.00
in non-pecuniary compensatory damages was excessive. However, because
the agency's failure to timely file its appeal constitutes a failure to
take action during the 40-day period set forth at 29 C.F.R. � 1614.110(a),
the agency is not permitted to challenge any aspect of the AJ's decisions.
McCue, supra. Therefore, the Commission will make no determination as to
the appropriateness of the finding of discrimination or of the amount
awarded in compensatory damages. Accordingly, the agency's appeal
is DISMISSED. The Commission directs the agency to provide relief
consistent with the AJ's decision, as stated in the Order below.
ORDER
The agency is ordered to take the following remedial action:
1. 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, retroactive to August 10, 1998, and continuing until April
15, 2002, the date the AJ's decision became the agency's final action.
The agency's determination must take place no later than 60 calendar days
after the date this decision becomes final.<3> 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 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."
2. Within 60 calendar days after this decision becomes final, the
agency shall issue a check to complainant for $300,000.00 in payment
for non-pecuniary compensatory damages.
3. Within 60 calendar days after this decision becomes final, the
agency shall issue a check to complainant for $15,093.00 in payment for
attorney fees.
4. The agency shall provide EEO training to the individuals who, in
August 1998, held the following positions: the Director of the Trident
Refit Facility, complainant's first and second level supervisors and
the Light Duty Manager. This training will apprize these individuals on
their duties and obligations under Section 501 of the Rehabilitation Act
of 1973. The Commission does not consider training to be a disciplinary
action.
5. The agency shall consider taking disciplinary action against
individuals who, in August 1998, held the following positions: the
Director of the Trident Refit Facility, complainant's first and second
level supervisors and the Light Duty Manager. The agency shall report
its decision. 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.
6. 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 back pay and other benefits due complainant,
including evidence that the corrective action has been implemented. The
agency shall copy the report and its supporting documentation to the
complainant.
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.
POSTING ORDER (G0900)
The agency is ordered to post at its Trident Refit Facility, located in
King's Bay, Georgia, 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.
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:
______________________________
Frances M. Hart
Executive Officer
Executive Secretariat
__10-09-03________________
Date
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 Section 501 of the Rehabilitation Act of 1973,
as amended, 29 U.S.C. � 791et 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 DISABILITY with respect to hiring, firing,
promotion, compensation, or other terms, conditions or privileges
of employment. The Department of the Navy, Trident Refit Facility,
located in King's Bay, Georgia (Trident Refit Facility) confirms its
commitment to comply with these statutory provisions.
The Trident Refit Facility supports and will comply with such Federal law
and will not take action against individuals because they have exercised
their rights under the law.
The Trident Refit Facility has been found to have discriminated against
an employee when it denied him a reasonable accommodation and failed
to timely process his workers' compensation forms. The Trident Refit
Facility has been directed to remedy the employee by, among other things,
providing him with back pay, compensatory damages, attorney's fees and
other benefits commensurate with what he would have received had he not
been discriminated against. The Trident Refit Facility will ensure
that reasonable accommodations are provided to qualified individuals
with disabilities and that officials responsible for making personnel
decisions and establishing the terms and conditions of employment will
abide by the requirements of the Rehabilitation Act.
The Trident Refit 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 16141The agency's appeal was postmarked April 18, 2002.
Appeals are deemed filed on the date received by the Commission, unless
postmarked earlier.
2The last day for filing a timely appeal with the Commission was Monday,
April 15, 2002.
3We do not order complainant's reinstatement because of the AJ's
determination that complainant would most likely be unable to work again.