Jeannine E. Busskohl, Complainant,v.Gordon R. England, Secretary, Department of the Navy, Agency.

Equal Employment Opportunity CommissionSep 27, 2002
01A14683 (E.E.O.C. Sep. 27, 2002)

01A14683

09-27-2002

Jeannine E. Busskohl, Complainant, v. Gordon R. England, Secretary, Department of the Navy, Agency.


Jeannine E. Busskohl v. Department of the Navy

01A14683

September 27, 2002

.

Jeannine E. Busskohl,

Complainant,

v.

Gordon R. England,

Secretary,

Department of the Navy,

Agency.

Appeal No. 01A14683

Agency No. 96-60042-002

Hearing No. 240-97-3792X

DECISION

The record indicates that on or around November 29, 1995, complainant,

a Personnel Assistant and Payroll Clerk, Administrative Section, Morale,

Welfare, and Recreation Department, at the agency's Naval Air Facility

in El Centro, California, filed a formal EEO complaint. therein, she

alleged that she was discriminated against on the basis of age (55 at the

relevant time) and subjected to retaliation for prior EEO activity when:

(1) she was terminated on July 25, 1995 and (2) she was denied training in

May 1995. After the investigation was completed, complainant requested

a hearing before an EEOC Administrative Judge (AJ). After a hearing,

the AJ concluded that complainant was subjected to age discrimination

when she was terminated. On February 1, 2001, the agency issued its

notice of final action agreeing to implement the AJ's decision in full.

By correspondence received on July 26, 2001, complainant filed the

instance appeal, pursuant to 29 C.F.R.� 1614.504, alleging that the

agency failed to comply with its final action.

EEOC regulation 29 C.F.R. � 1614.504 provides that a final action that

has not been the subject of an appeal to the Commission or a civil action

is binding on the agency, and that if a complainant believes the agency

has failed to comply with the terms thereof, she shall notify the agency

within 30 days of learning of the alleged noncompliance. If, after 35

days from the agency's receipt of complainant's written allegations of

noncompliance, the complainant is not satisfied with the agency's attempt

to resolve the matter, the complainant may appeal to the Commission for

a determination as to whether the agency has complied with the terms of

the final decision. See 29 C.F.R. � 1614.504(b).

In the case at hand, it is unclear from the record whether complainant

notified the agency of the alleged noncompliance prior to filing her

appeal. However, there is also no indication that complainant was

ever made aware of this requirement, as the agency's final action merely

indicates that complainant may file an appeal with this Commission if she

is dissatisfied. The Commission therefore will exercise its discretion

and consider the matter.

Complainant contends that the agency did not fully comply with the terms

of its final action, in particular noting that she was not awarded the

appropriate amount of retirement benefits, despite the fact that the

final action ordered that she be provided all benefits to which she

would have been entitled had she not been terminated. As we are unable

to determine from the information provided whether the agency complied

with its final action, the complaint is hereby REMANDED to the agency

for further action in accordance with the following order.

ORDER

To the extent that it has not already done so, the agency is ordered to

take the following remedial actions:

Within thirty (30) calendar days of the date this decision becomes

final, the agency shall offer to place complainant in the position she

would have occupied if she had not been terminated, or a substantially

equivalent position. Complainant shall be given a minimum of fifteen

(15) days from the date of her receipt of the offer within which to

accept or decline the offer.

The agency shall determine the appropriate amount of back pay (with

interest, if applicable) and other benefits, including retirement

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."

The agency shall pay front pay, provided that there is not another

equivalent position currently available. Front pay shall be paid until

such time and date that such a position becomes available, including

any pay increases, bonuses, and other benefits complainant would have

received had there been an equivalent position available immediately.<1>

Within thirty (30) calendar days of the date this decision becomes final,

the agency shall pursue corrective action including, but not limited

to, providing EEO training to the management officials responsible for

terminating complainant. The agency shall also ensure that no retaliatory

action is taken against complainant for filing this EEO complaint.

Within thirty (30) calendar days of the date this decision becomes final,

the agency shall review its discharge practices and take whatever steps

deemed appropriate to prevent the recurrence of discriminatory treatment

during this process.

The agency shall post the attached notice, as described 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 back pay and other benefits due complainant,

including evidence that the corrective action has been implemented.

INTERIM RELIEF (F0900)

When the agency requests reconsideration and the case involves a

finding of discrimination regarding a removal, separation, or suspension

continuing beyond the date of the request for reconsideration, and when

the decision orders retroactive restoration, the agency shall comply with

the decision to the extent of the temporary or conditional restoration

of the complainant to duty status in the position specified by the

Commission, pending the outcome of the agency request for reconsideration.

See 29 C.F.R. � 1614.502(b).

The agency shall notify the Commission and the complainant in writing at

the same time it requests reconsideration that the relief it provides

is temporary or conditional and, if applicable, that it will delay

the payment of any amounts owed but will pay interest from the date

of the original appellate decision until payment is made. Failure of

the agency to provide notification will result in the dismissal of the

agency's request. See 29 C.F.R. � 1614.502(b)(3).

POSTING ORDER (G0900)

The agency is ordered to post at its El Centro, California 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.

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

September 27, 2002

Date

NOTICE TO EMPLOYEES

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

(Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq., has occurred

at the Department of Navy, Naval Air Facility, in El Centro, California

(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 facility supports and will comply with such federal law and will

not take action against individuals because they have exercised their

rights under law.

The facility was found to have discriminated against an employee based

on her age when it terminated her. The facility was ordered to: (1)

offer to place complainant in the position she would have held had she

not been terminated, or a substantially equivalent position; (2)determine

the appropriate amount of back pay and other benefits owed complainant;

(3) pay complainant front pay, if no position is currently available;

(4) provide EEO training for supervisors and managers at the facility;

(5) review its discharge practices and take whatever steps deemed

appropriate to prevent the recurrence of discriminatory treatment during

this process; and (6) post this notice.

The 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 16141 Commission precedent holds that an award of front

pay is appropriate in certain circumstances. If nondiscriminatory

placement, such as reinstatement to a previously held position or a

substantially equivalent position, is not possible, then the agency must

make whole the employee through front pay until such nondiscriminatory

placement can be accomplished. See York v. Department of the Navy,

EEOC Appeal No. 01930435 (February 25, 1994).