01a54037
08-24-2005
Reuben A. Duckworth, Complainant, v. Dr. Francis J. Harvey, Secretary, Department of the Army, Agency.
Reuben A. Duckworth v. Department of the Army
01A54037
August 24, 2005
.
Reuben A. Duckworth,
Complainant,
v.
Dr. Francis J. Harvey,
Secretary,
Department of the Army,
Agency.
Appeal No. 01A54037
Agency No. BXHMFO0110B0380
Hearing No. 100-2002-07828X
DECISION
On May 10, 2005, complainant filed an appeal claiming that the agency
failed to comply with its final action finding discrimination. The
record reveals that complainant filed a complaint, dated October 23,
2001, alleging that he was discriminated against on the bases of race
(Black), color (black), sex (male), age (59) and in reprisal for previous
EEO activity when:
Complainant was denied 2.5 hours of overtime pay;
Complainant was removed from a shift leader position on August 14, 2001;
Complainant was denied an overseas tour extension.<1>
An EEOC Administrative Judge (AJ) issued a decision on August 18, 2004,
finding reprisal discrimination when complainant's overseas tour was
not extended (claim (3)). The AJ found no discrimination on any basis
regarding claims (1) and (2). The AJ's decision ordered the agency to:
Provide complainant an opportunity to return to an overseas assignment
at the Kelly Barracks Facility within thirty (30) days of the date the
agency takes final action on [complainant's] complaint. Complainant
shall be provided thirty (30) days to accept or decline an offer to work
overseas. Should complainant choose to return to an overseas facility,
then the agency shall provide relocation expenses for complainant and
his family consistent with agency policy and practice when individuals
are assigned overseas.
Perform an analysis of complainant's wages from the time his tour was
not extended to the present, and to calculate the difference, if any,
in wages or any other benefits complainant was or would be entitled
to as an employee of the Kelly Barracks Facility. The agency shall
provide complainant back pay, plus interest, for the relevant time
period permitted under the Back Pay Act. Pursuant to 29 C.F.R. �
1614.501(b)(ii)(2001), complainant is entitled to back pay computed
in the same manner required by 5 C.F.R. � 550.805, together with
other benefits he would have received but for the discrimination.
A determination for back pay owed should be completed within thirty
(30) days of the date that this decision is implemented.
Pay complainant the sum of $2,000.00 for non-pecuniary damages.
Provide a minimum of three (3) hours of training to S1 (complainant's
former immediate supervisor) and S2 (complainant's former second level
supervisor) about the EEO process and their obligation not to retaliate
against individuals who engage in EEO activity.
Provide a minimum of eight (8) hours of refresher EEO Investigator
training to the Investigator and the Agency Representative who prepared
the report of investigation in the instant matter. The training
should cover the issues raised in the AJ's decision and the agency
shall certify to complainant that the training has been completed.
Post at the Kelly Barracks Facility, Darmstadt, Germany, a notice to all
employees of the agency's facility of the finding of discrimination,
of their right to a work environment free of illegal discrimination
or retaliation, and a statement reaffirming the right of employees to
seek EEO Counseling without fear of retaliation. 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
the agency issues a final order, and shall remain posted for ninety
(90) consecutive days, in conspicuous places, including all places
where notices to employees are customarily posted. The agency shall
take reasonable steps to insure that said Notices are not altered,
defaced or covered by any other material.
By decision dated September 24, 2004, the agency issued a decision
stating that it was fully implementing the AJ's decision.<2>
On appeal, complainant is not challenging the findings of no
discrimination or the remedies awarded by the AJ; rather, complainant is
only claiming that the agency failed to comply with the remedies ordered
by the AJ. Complainant contends that the agency did not act in a timely
manner to implement the AJ's decision and that as of the date he filed
the instant appeal, the agency had still failed to provide transportation
and relocation expenses for his return to an overseas assignment, as
it provides for other employees.<3> Complainant further states that
he has not been paid wages from April 1, 2005 through April 28, 2005.
Lastly, complainant states that the agency has failed to pay him for
sick leave and annual leave benefits as ordered.
By letter to the Commission dated June 24, 2005, the agency provided
copies of a series of memoranda and exhibits to show its compliance
with agency's final order which fully implemented the AJ's decision and
order for relief. By letter dated October 20, 2004, complainant was
notified and offered a position at the Kelly Barracks Dining Facility,
which complainant accepted and complainant reported for work on April
28, 2005. Complainant received $2,000 for non-pecuniary damages on
November 19, 2004. On October 26, 2004, S2 completed three hours of
EEO training, which involved Prevention of Sexual Harassment (POSH)
and diversity training. On January 11, 2005, S1 completed three hours
of EEO training. Calculation of complainant's back pay was completed
and complainant received $48,071.70 on April 10, 2005.
The agency also submitted a copy of the required notice to employees,
signed and indicating posting dates of October 20, 2004 through January
20, 2005.
The Commission finds that the agency complied with that portion of the
remedy ordered with respect to the non-pecuniary damages award, that the
agency offered complainant an overseas position to complainant, and that
the agency posted the required notice. However, aside from a memorandum
stating that complainant was paid $48,071.70, the record is void of any
evidence showing that complainant was paid back pay for the time period
in question such as a copy of a check or other payroll type of evidence
that payment was issued. The agency has not addressed whether complainant
has been reimbursed for his relocation expenses and reimbursed for sick
and annual leave that he would have received but for the discrimination.
Accordingly, the Commission AFFIRMS the portion of the agency decision
finding that it complied with the provisions of the agency decision
dated September 24, 2004, requiring the agency to pay the non-pecuniary
damages award, to offer complainant an overseas position, and to post the
required notice. The portion of the agency decision regarding the back
pay, relocation expenses, and leave benefits is VACATED and we REMAND
these matters to the agency for further processing in accordance with
the Order herein.
ORDER
The agency shall supplement the record with evidence showing whether it
has complied with the following relief ordered in the September 24, 2004
agency decision: (1) to pay complainant backpay; (2) to pay complainant
relocation expenses; and (3) to reimburse complainant with leave
complainant would have received but for the discrimination. The agency
shall, within 30 calendar days of the date this decision becomes final,
issue a new decision addressing whether it has implemented the relief
at issue as described in this Order. A copy of the new decision must
be sent to the Compliance Officer as referenced herein.
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 (T0900)
This decision affirms the agency's final decision/action in part, but it
also requires the agency to continue its administrative processing of a
portion of your complaint. 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 on both that portion
of your complaint which the Commission has affirmed and that portion
of the complaint which has been remanded for continued administrative
processing. 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 your appeal with the Commission, until
such time as the agency issues its final decision on your complaint.
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
August 24, 2005
__________________
Date
1Complainant only alleged reprisal as a basis
for claim (3).
2The agency's final order noted that the investigator and agency
representative described in the AJ's decision are not currently
agency employees and accordingly, the agency deemed the AJ's order for
training of these individuals as a recommendation to be forwarded to
the appropriate agencies for their consideration.
3Complainant states that the agency has not granted him temporary quarters
subsistence allowance (TQSA) and living quarters allowance (LQA).