05980418
03-18-1999
Richard Mares,) Appellant,) v.) Louis Caldera,) Secretary,) Department of the Army,) Agency.)
Richard Mares,)
Appellant,)
)
v.) Request No. 05980418
) Appeal No. 01960499
Louis Caldera,) Agency No. 94-08-0171
Secretary,)
Department of the Army,)
Agency.)
)
DENIAL OF REQUEST FOR RECONSIDERATION
On February 26, 1998, the Department of the Army (agency) timely initiated
a request to the Equal Employment Opportunity Commission (EEOC or
Commission) to reconsider the decision in Richard Mares v. Department of
the Army, EEOC Appeal No. 01960499 (January 28, 1998). EEOC regulations
provide that the Commissioners may, in their discretion, reconsider
any previous Commission decision. 29 C.F.R. �1614.407(a). The party
requesting reconsideration must submit written argument or evidence
which tends to establish one or more of the following three criteria:
new and material evidence is available that was not readily available
when the previous decision was issued, 29 C.F.R. �1614.407(c)(1);
the previous decision involved an erroneous interpretation of law,
regulation, or material fact, or misapplication of established
policy, 29 C.F.R. �1614.407(c)(2); or the previous decision is of such
exceptional nature as to have substantial precedential implications,
29 C.F.R. �1614.407(c)(3).
The record reflects that during the period 1984-1986, appellant, although
employed by the Department of the Air Force, worked under the first-
and second-level supervision of two civilian employees of the agency.
In 1993, while working under the supervision of Air Force employees,
appellant filed a claim with the Office of Workers' Compensation
Programs (OWCP) for an injury alleged to be work-related. Air Force
management controverted the claim, and requested that appellant's former
supervisors, who were still employed by the agency, provide statements
supporting the Air Force's position. Both managers included in their
statements derogatory references to appellant's prior EEO activity.
OWCP ultimately denied appellant's claim on the ground that he had
not established that an injury was sustained as alleged. The previous
decision adopted the recommended decision of an EEOC administrative judge
(AJ) finding reprisal discrimination and awarding relief including,
inter alia, compensatory damages.
In its request for reconsideration, the agency assigns several errors:
that appellant, who was neither an agency employee nor an applicant for
agency employment, could not maintain a complaint against the agency;
that the aforementioned managers had not acted on behalf of the agency
when providing the statements at issue; that the statements did not
constitute direct evidence of retaliatory animus; and that there was
no causal connection between the alleged acts of discrimination and the
denial of appellant's claim by OWCP. The agency's claim meets none of
the criteria for reconsideration, and is DENIED.
With regard to the remedy awarded in this matter, the Commission notes
that compensatory damages are payable for injury sustained by appellant
on account of the agency's discriminatory actions. However, the scope of
compensatory damages available to appellant does not include recompense
for the denied workers' compensation claim. Such an award would require
the Commission to determine whether the claim was meritorious, a matter
outside of the Commission's jurisdiction. See Hogan v. Dept. of the Army,
EEOC Request No. 05940407 (September 29, 1994); Gray v. Dept. of the Army,
EEOC Appeal No. 01944944 (August 8, 1995).
Upon review of the agency's request for reconsideration, the previous
decision, and the entire record, the Commission finds that agency's
request does not meet any of the criteria of 29 C.F.R. �1614.407(c).
Accordingly, the agency's request for reconsideration is DENIED. The
decision in Appeal No. 01960499 remains the Commission's final decision
in this matter. There is no further right of administrative appeal from
the decision of the Commission on this request for reconsideration.
ORDER
The agency is ORDERED to take the following remedial action:
(A) The agency shall immediately take all steps necessary to ensure
that all future communications concerning appellant shall not include
any inappropriate references to appellant's protected EEO activity,
(B) The agency shall provide training to all the officials responsible
for the actions at issue regarding their obligation to refrain from
unlawful retaliation.
(C) The agency shall conduct a supplemental investigation, pursuant
to the guidelines provided by the AJ in his recommended decision,
pertaining to appellant's entitlement to compensatory damages
incurred as a result of the agency's retaliatory actions, excluding
any claimed damages attributable to the denial of appellant's workers'
compensation claim. The agency shall afford appellant sixty (60) days
to submit additional evidence in support of his claim for compensatory
damages. Within thirty (30) days of its receipt of appellant's evidence,
the agency shall issue a final decision, again pursuant to the guidelines
provided by the AJ, determining appellant's entitlement to compensatory
damages, together with appropriate appeal rights.
(D) The agency shall post at Fort Sam Houston, Texas 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.
(E) 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 appellant,
including evidence that the corrective action has been implemented.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0595)
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
appellant. If the agency does not comply with the Commission's order,
appellant may petition the Commission for enforcement of the order.
29 C.F.R. �1614.503 (a). Appellant 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. ��
1614.408, 1614.409, and 1614.503 (g). Alternatively, appellant 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. ��1614.408 and 1614.409. 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) (Supp. V 1993). If appellant files a civil
action, the administrative processing of the complaint, including any
petition for enforcement, will be terminated. See 29 C.F.R. �1614.410.
ATTORNEY'S FEES (H1092)
If appellant 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.
RIGHT TO FILE A CIVIL ACTION (R0993)
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 an action in an appropriate
United States District Court. It is the position of the Commission
that 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. You should be aware, however, that
courts in some jurisdictions have interpreted the Civil Rights Act of
1991 in a manner suggesting that a civil action must be filed WITHIN
THIRTY (30) CALENDAR DAYS from the date that you receive this decision.
To ensure that your civil action is considered timely, you are advised to
file it WITHIN THIRTY (30) CALENDAR DAYS from the date that you receive
this decision or to consult an attorney concerning the applicable time
period in the jurisdiction in which your action would be filed. In the
alternative, you may file a civil action AFTER ONE HUNDRED EIGHTY (180)
CALENDARS 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 (Z1092)
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:
March 18, 1999
Date Frances M. Hart
Executive Officer
Executive Secretariat
This Notice is posted pursuant to an order by the United States Equal
Employment Opportunity Commission dated _____________ which found that
a violation of Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. �2000e et 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 PHYSICAL or MENTAL DISABILITY with respect
to hiring, firing, promotion, compensation, or other terms, conditions
or privileges of employment.
The Department of the Army, Fort Sam Houston, Texas supports and will
comply with such Federal law and will not take action against individuals
because they have exercised their rights under law.
The Department of the Army, Fort Sam Houston, Texas has been found
to have unlawfully retaliated against the individual affected by the
Commission's finding on the basis of his participation in the EEO
complaint process. The agency has been ordered to cease such actions
and provide this individual with an award of compensatory damages. The
Department of the Army, Fort Sam Houston, Texas will ensure that officials
responsible for personnel decisions and terms and conditions of employment
will abide by the requirements of all Federal equal employment opportunity
laws and will not retaliate against employees who file EEO complaints.
The Department of the Army, Fort Sam Houston, Texas 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 1614