04990049
09-19-2002
Janine Raspanti, Petitioner, v. Thomas E. White, Secretary, Department of the Army. Petition No. 04990049 Agency No. 93010120 et al. Request No. 05970674 Appeal No. 01942756
Janine Raspanti v. Department of the Army
04990049
September 19, 2002
.
Janine Raspanti,
Petitioner,
v.
Thomas E. White,
Secretary,
Department of the Army.
Petition No. 04990049
Agency No. 93010120 et al.
Request No. 05970674
Appeal No. 01942756
DECISION FOR PETITION FOR ENFORCEMENT
The Equal Employment Opportunity Commission (EEOC) has docketed a
petition for enforcement from Janine M. Raspanti (petitioner) requesting
enforcement of the Commission's Order in Janine Raspanti v. Department
of the Army, EEOC Request No. 05970674 (July 17, 1998). This petition
is accepted in accordance with the provisions of EEOC Regulation 29
C.F.R. � 1614.503(a).
ISSUE PRESENTED
The issue presented is whether the agency has complied with the
Commission's order in EEOC Request No. 05970674.
BACKGROUND
Petitioner was employed as a GS-322-04, Clerk Typist, in the agency's New
Orleans District Office, Corps of Engineers, and was serving a one-year
probationary period when she was separated from the agency effective
June 5, 1992.
On October 4, 1992, petitioner filed an EEO complaint alleging
discrimination based on her disability (cervical disc herniations and
bilateral thoracic outlet syndrome) and reprisal (prior EEO activity)
when she was denied her requests for reasonable accommodation, harassed
and intimidated by her supervisor, and eventually terminated. Petitioner
claimed that her assignment of compiling various office reports
entailed repetitive, constant motion, which was not within her physical
limitations.
Following the investigative process, the agency issued a final agency
decision (FAD) which found no discrimination. Complainant appealed the
FAD to the Commission, which reversed the FAD, finding that the agency
had failed to reasonably accommodate complainant's physical limitations.
Janine Raspanti v. Dept. of the Army, EEOC Appeal No. 01942756 (March 17,
1997). The agency filed a request for reconsideration, which was denied.
Raspanti, EEOC Request No. 05970674.
As relief, the Commission ordered that petitioner be offered a Clerk
Typist position or a substantially similar position within her physical
limitations, and that she be granted back pay. The Commission also ordered
that a supplemental investigation be conducted and a final decision issued
regarding compensatory damages. In addition, the agency was required
to post a notice of the finding of discrimination and was directed to
provide relevant EEO training to all responsible management officials.
The record shows that the agency offered petitioner four positions,
to be discussed more fully below, all of which petitioner declined.
Petitioner declined the fourth offer on May 7, 1999. The agency
thereafter terminated her employment, effective August 21, 1999.
Petitioner remained in paid leave status until the effective date of
her termination.
In September 1999, petitioner filed the Petition for Enforcement
(the Petition) herein. Following are petitioner's contentions and the
Commission's analyses and findings.
1. Offer of New Position
The Commission found in its prior decisions that the agency had
failed to reasonably accommodate petitioner. The agency was ordered
to offer petitioner a Clerk Typist position or a substantially similar
position. The record shows that between October 5, 1998, and May 7, 1999,
the agency offered Petitioner three GS-318-05 Secretary positions and
one GS-0303-05 Clerical Assistant position.<1>
According to a report from petitioner's chiropractor (the Chiropractor),
dated September 7, 1998, complainant's physical restrictions were:
(1) no lifting greater than 35 pounds; (2) no standing longer than 25
minutes; (3) no stooping frequently; (4) no repetitive head turning; and
(5) no walking greater than 100 feet more than once every 2 hours. By
correspondence dated October 14, 1998, and February 1, 1999, petitioner
indicated to the agency that she needed a position with no more than 15
percent typing duties. The agency was informed that any more typing
would involve repetitive head motion in violation of petitioner's
physical restrictions.
Petitioner declined the first three offers primarily because they included
more than 15 percent typing duties.<2> Petitioner also declined the
fourth position on the grounds that the position entailed heavy typing
which was against her physical restrictions.<3> The record shows,
through the position description and through other documents contained in
the record, that the last position offered to petitioner only contained
15percent typing duties and that, in other respects, the position was
substantially similar to petitioner's prior position.
In her Petition, petitioner contends that she did not accept any of the
positions offered because they contained too much typing. In response, the
agency contends, particularly with regard to the last position offered,
that it met its obligation to provide petitioner with a position. The
agency emphasizes that it based its offers on the medical information
submitted by petitioner and particularly on petitioner's requirement that
the position entail no more than 15percent typing. The agency contends
that petitioner has not made a genuine effort to perform the duties of
any of the positions offered nor assisted or cooperated in the agency's
efforts to reasonably accommodate her.
Having carefully reviewed the record, we find that the agency, with
its last offer in May 1999 of the Clerical Assistant position, met its
legal obligation to offer petitioner a �substantially similar� position
within her physical limitations. Petitioner has argued that the clerical
position was not suitable because of the amount of typing involved.
However, the position description indicates that there was only 15
percent typing involved with the job, which, during the relevant time
period, is exactly what petitioner requested. There is also no evidence
to indicate, nor has petitioner argued, that the position, generally,
was not �substantially similar� to her former position. While the first
three positions offered arguably were not compatible with petitioner's
medical restrictions, petitioner has submitted no plausible reason that
she could not accept the agency's offer in early May 1999.
2. Front pay
Petitioner contends that she is entitled to front pay because the agency
refused to attempt to find a position for her in accordance with the
limitations set forth by her physician and chiropractor.
Having found that the agency complied with its effort to offer petitioner
a position within her physical limitations, we also find that petitioner
is not entitled to front pay.
3. Back pay
Petitioner contends that the agency has not complied with its back pay
obligations because: (1) she received the back pay in a lump sum which
caused major tax penalties; (2) she was issued incorrect reimbursements
relative to her Social Security and Thrift Savings Plan (TSP); and,
(3) her life insurance was not credited. Complainant states that the
agency never produced her replacement's SF 50 and the annual (1992
to present) breakdown of all monetary figures including yearly salary
amounts and raises and that the agency has not submitted a compliance
report as ordered.
The agency submits that on November 7, 1998, the Defense Finance &
Accounting Service (DFAS) processed a payment of $108,005.99 to
petitioner; petitioner has previously received a back pay payment of
$7,026.63. According to the agency, it also processed cash performance
awards for petitioner which were equivalent to that of the employee who
replaced petitioner. The agency further states that it is unable to
resolve the issues regarding tax penalties, social security, and TSP
contributions and that petitioner should contact the DFAS concerning
these matters. Regarding the SF-50, the agency contends that it is
not relevant to petitioner's back pay award. Furthermore, the agency
contends that the DFAS should resolve the matter of the annual breakdown
of petitioner's financial computations.
The record contains detailed calculation sheets relative to complainant's
back pay awards. These records appear to sufficiently document the
manner in which the reimbursements of $108,005.99 and $7,026.63 were
calculated. We also agree with the agency that the SF-50 of complainant's
replacement is not relevant to complainant's back pay award.
However, we find that the agency improperly placed the responsibility
on petitioner to determine the appropriate TSP, social security,
and life insurance benefits and calculations; these benefits are
part of petitioner's back pay award, for which the agency bears
responsibility. Thus, the Commission will remand these matters to the
agency for a supplemental investigation to determine whether petitioner
properly received appropriate social security, TSP, and life insurance
contributions.
Finally, as noted above, complainant argues that she should be compensated
for the alleged adverse tax consequences of receiving a lump sum back
pay award, although she does not specify the specific tax penalty
she allegedly incurred. Sears v. Atchison, Topeka & Santa Fe Railway,
Company, 749 F.2d 1451, 1456 (1984), a Title VI employment discrimination
case, found that a district court may include a tax component in a back
pay award (an equitable remedy) to compensate class members for their
increased taxes as a result of receiving over 17 years of back pay in
one lump sum. See also Equal Employment Opportunity Commission v. Joe's
Stone Crab, Inc., 15 Fed.Supp.2d 1364, 1380 (1998) (citing Sears).
Petitioner has the burden of establishing the amount of increased tax
liability. See Hukkanen v. International Union of Operating Engineers,
3 F.3d 281, 287 (8th Cir. 1993) (District Court may deny award where the
plaintiff failed to provide evidence on the tax enhancement amount or
convenient way for the court to calculate it). On remand, in accordance
with the order below, petitioner shall have an opportunity to present
evidence to establish the amount of additional tax liability stemming
from receiving all her back pay in one year.
4. Compensatory Damages
Petitioner contends that the agency has failed to issue a final decision
determining her entitlement to compensatory damages despite the fact
that she submitted relevant evidence to the agency on August 26, 1998.
The record shows that on May 5, 2000, the agency issued its final decision
on petitioner compensatory damages claim. Accordingly, this aspect of
the Petition is denied.
5. Training
Petitioner contends that the agency has not provided training to the
responsible agency officials.
The agency responds that on May 17 and 18, 1999, it conducted
Cultural Awareness and Sensitivity Training which was mandatory for all
management officials. The agency states that sensitivity for persons with
disabilities was covered during the training. The agency also states that
one of the management officials principally involved in petitioner's
action has attended the agency's EEO training from September 13-17,
1999, at which the requirements of the Rehabilitation Act were covered.
While the agency has provided some training for responsible management
officials, we find that the agency has not entirely complied with the
Commission's order. The training from September 13-17, 1999 appears to
meet the order's requirements because the training apparently covered
rights and responsibilities under the Rehabilitation Act. However,
regarding the May 17 and 18, 1999 training, there is no indication
that this training covered a manager's obligations and duties under the
Rehabilitation Act. Accordingly, the agency shall arrange for additional
training for those responsible management officials who only attended
the May 17 and 18, 1999 training session.
6. Report of Compliance
Petitioner contends that the agency has not submitted to the Commission
a compliance report as ordered by the Commission. The agency responds
that a final report of compliance has not been submitted because all of
the remedial actions have not been completed. The agency notes that
interim reports of compliance have been filed and that a final report
will be filed following the completion of all remedial actions.
While the agency has not submitted a final compliance report because
compliance has not been finalized, it will be required to send a final
compliance report following its receipt and implementation of the decision
herein. We note that the agency has been in communication with the EEOC
compliance officer regarding its efforts to comply.
ORDER
(1) Within ninety (90) days of the date this decision becomes final,
the agency shall conduct and complete an investigation and issue a report
regarding those aspects of petitioner's back pay award which involve
social security, thrift savings plan, and life insurance benefits.
The report shall contain detailed calculations relative to the manner
in which the benefits were determined. Petitioner, as well as the
compliance officer cited below, shall be sent a copy of the report.
(2) The agency must compensate petitioner for the increased tax
liability, if any, that she sustained as a result of being paid lump sum
back pay awards in 1998. This is an equitable remedy. The burden of proof
to establish the amount of additional tax liability is on petitioner.
The calculation of additional tax liability must be based on the taxes
petitioner would have paid had she received the back pay in the form of
regular salary during the back pay period, versus the additional taxes
she paid due to receiving the back pay lump sum award. Petitioner must
submit proof of this amount to the agency within 90 calendar days of her
receipt of this decision in a fashion that makes it convenient for the
agency to check petitioner's calculations and underlying documentation.
If the agency timely receives this evidence, it must issue a check for
the increased tax liability within 90 calendar days of its receipt of
the evidence. Petitioner must cooperate with requests by the agency
for assistance in making the calculations.
(3) Within one hundred twenty days (120) days of the date this decision
becomes final, the agency shall arrange additional training for those
responsible management officials who only attended the Cultural Awareness
and Sensitivity Training on May 17 and 18, 1999. This additional training
shall cover a manager's obligations and duties under the Rehabilitation
Act. Documentation indicating that the additional training was provided
shall be sent to the compliance officer cited below.
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 (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.
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
September 19, 2002
__________________
Date
1The record reflects that during the pendency of these proceedings,
the GS-4 position which petitioner originally had occupied was abolished
and re-established as a GS-5 position, with the result that the agency
offered petitioner placement at the higher grade level.
2 The record confirms that the duties of the first three positions
offered included more than 15percent typing duties.
3 Two letters from petitioner's attorney declining the last job offer
are missing from the record. However, other documents relating to the
last offer indicate that petitioner initially was concerned that she
would have to temporarily perform payroll functions, which might entail
repetitive turning of her head. The agency informed petitioner that the
position involving payroll duties would be filled shortly. In August
1999 correspondence to the agency and in her Petition for Enforcement,
petitioner indicates that the primary reason she declined the fourth
position was because it allegedly entailed heavy typing.