05A21023
10-03-2002
Request No. 05A21023
Sharlet M. (Yamazaki) Greer v. Department of Agriculture
05A21023
October 3, 2002
.
Sharlet M. (Yamazaki) Greer,
Claimant,
v.
Ann M. Veneman,
Secretary,
Department of Agriculture,
Agency.
Request No. 05A21023
Appeal No. 01A10429
Agency No. 870807
Hearing No. 380-A0-8076X
DENIAL OF REQUEST FOR RECONSIDERATION
Sharlet M. (Yamazaki) Greer (claimant) timely initiated a request to the
Equal Employment Opportunity Commission (EEOC or Commission) to reconsider
the decision in Sharlet M. (Yamazaki) Greer v. Department of Agriculture,
EEOC Appeal No. 01A10429 (June 25, 2002). EEOC Regulations provide that
the Commission may, in its discretion, reconsider any previous Commission
decision where the requesting party demonstrates 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. See 29 C.F.R. �
1614.405(b).
After a review of claimant's request for reconsideration, the previous
decision, and the entire record, the Commission finds that the request
fails to meet the criteria of 29 C.F.R. � 1614.405(b), and it is the
decision of the Commission to deny the request. The decision in EEOC
Appeal No. 01A10429 remains the Commission's final decision. There is no
further right of administrative appeal on the decision of the Commission
on this request for reconsideration.
The order in the previous decision is reprinted below.
ORDER
(1) The agency shall change the claimant's official personnel file to
reflect placement into the position of Assistant County Supervisor,
GS-475-5, located in Eugene, Oregon, or a substantially equivalent
position, effective August 3, 1988, within 30 calendar days after this
decision becomes final. The claimant is entitled, but not limited
to, back pay, all career ladder promotions, grade and step increases,
cost of living adjustments, etc., and attendant increases in benefits
including, but not limited to, annual and sick leave, health benefits,
and retirement and Thrift Savings Plan adjustments and contributions,
etc. (but not interest)<1> under 29 C.F.R. �1614.501 which she would
have received had she been placed effective August 3, 1988 and worked
through her resignation in December 1990. The claimant shall cooperate
in the agency's efforts to make the above calculations, and provide all
necessary information the agency requests to help it comply.
(2) The issue of attorney's fees and costs is remanded to the agency.
If the claimant is seeking attorney fees and costs she shall, through
counsel, submit a request for attorney's fees and costs in accordance
with the Attorney's Fees paragraph set forth below. No later than 60
days after the agency's receipt of the attorney's fees statement and
supporting affidavit, the agency shall issue a final agency decision
addressing the issues of attorney's fees and costs. 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 paragraph entitled "Implementation of the Commission's
Decision." The report shall include supporting documentation that the
ordered changes to the claimant's records have occurred, and of the
agency's calculation of back pay and other benefits due the claimant,
including evidence that the corrective action has been implemented.
The agency shall send a copy of this report, together with any attachments
and enclosures, to the claimant.
ATTORNEY'S FEES
If claimant 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 (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
October 3, 2002
__________________
Date
1The underlying settlement agreement limited the relief to that which
was available under Title VII prior to the Civil Rights Act of 1991.
Prior to the 1991 Civil Rights Act, interest on back pay was limited
to those cases which resulted in the withdrawal or reduction of an
employee's compensation. See Sullivan v. Department of Justice, EEOC
Request No. 05901185 (March 2, 1992), citing Brown v. Secretary of the
Army, 918 F.2d 214 (D.C. Cir. 1990). The failure to award a competitive
promotion did not support an interest award. Ramsey v. Department of
the Navy, EEOC Request No. 05940658 (July 27, 1995).