04A00020
01-23-2002
Stan Laber, Petitioner, v. Thomas E. White, Secretary, Department of the Army, Agency.
Stan Laber v. Department of the Army
04A00020
January 23, 2002
.
Stan Laber,
Petitioner,
v.
Thomas E. White,
Secretary,
Department of the Army,
Agency.
Petition No. 04A00020
Appeal No. 01973838
Agency No. 0793061E
Hearing No. 100-94-7118X
DECISION ON A PETITION FOR ENFORCEMENT
On July 10, 2000, the Equal Employment Opportunity Commission (EEOC
or Commission) docketed a petition for enforcement to examine the
enforcement of an order set forth in Stan Laber v. Department of the
Army, EEOC Appeal No. 01973838 (December 22, 1998). This petition
for enforcement is accepted by the Commission pursuant to 29 C.F.R. �
1614.503. Petitioner alleged that the agency failed to fully comply
with the Commission's order in that decision.
In its previous decision, the Commission had affirmed an earlier
finding by an EEOC Administrative Judge (AJ) that petitioner had been
discriminated against on the basis of religion when he was not selected
for the position of Industrial Specialist, GS-1150-11, in Tel Aviv,
Israel. The Commission directed the agency to accomplish the following:
Within thirty (30) days of the date the Commission's decision became
final, the agency must offer petitioner immediate placement in an
Industrial Specialist GS-11 position in Israel, or a substantially
equivalent position even if such position is at a GS-12 or GS-13 level,
providing that petitioner is qualified for such position, and award him
appropriate back pay, interest, and benefits.
The matter was assigned to a Compliance Officer and docketed as Compliance
No. 06A01000 on April 17, 2000.<1> On May 16, 2000, the agency submitted
its initial compliance report. Petitioner contacted the Compliance
Officer on May 26, 2000, indicating that he wished to file a petition
for enforcement. In accordance with petitioner's request, the instant
petition was docketed on July 10, 2000. By his letter dated July 19,
2000, petitioner stated that he had accepted the agency's offer of
employment in Germany with no conditions regarding placement in Israel
or elsewhere. Petitioner withdrew that portion of his petition for
enforcement which claimed that the agency's offer of employment was
deficient because the location was not Israel, and requested that his
petition be modified accordingly. The record before us contains the
appellate case file, the compliance file and further documents from
the agency and petitioner. In a final (330-day) compliance report
dated March 12, 2001, the agency contends that it has complied with the
provision of the Order relating to the agency's job offer, as petitioner
unconditionally accepted an agency-offered GS-11 position in Germany, and
he has been working in that position since October 2000. The agency also
stated that it had complied with the provisions of the Order regarding
training, posting of the discrimination notice and payment of attorney's
fees and costs. The agency's final compliance report stated that it had
not yet complied with the provision of the Order relating to payment of
back pay and allowances, as petitioner has a petition for enforcement
pending on that issue.
Petitioner has submitted comments in numerous letters including those
dated June 21, 2000, July 31, 2000, March 16, 2001 and July 18, 2001.
In a submission dated July 18, 2001, petitioner stated that the agency's
offer of employment in Germany was made in bad faith, based on its
submission that the agency had no positions in Israel. Petitioner alleged
that on June 15, 2001, he became aware of the existence of an agency
office in Israel when he found a job announcement for a position with
the agency in Tel Aviv, Israel. Petitioner asserts that based on this
information, this office existed in April of 2000 when the agency claimed
that it had no offices in Israel, and thus, the agency should change the
location of his position to Israel. Petitioner also asserts that the
position in Germany is not at a GS-12 or GS-13 level as ordered by the
Commission, there are no return rights as ordered by the Administrative
Judge and the date of the position in Germany is not retroactive to the
date he would have begun the position in Israel.
We will now review each of the elements in the previous decision's order
to determine whether further action is necessary.
Paragraph (A): Placement in an Industrial Specialist GS-11 position in
Israel, or a substantially equivalent position
The Commission finds that petitioner urged the Commission to exclude the
issue of location from his petition for enforcement upon his acceptance
of the position in Germany. As petitioner has proffered no evidence
that the office in Israel at issue contained any Industrial Specialist
positions or other positions for which he was qualified, we find that
the agency has complied with Paragraph (A) of our Order regarding the
position itself. In so finding, we note that the Commission's Order
only specified that petitioner should be placed in a GS-12 or GS-13
position if a GS-11 Industrial Specialist position was not available.
Moreover, while petitioner alleges that the new position in Germany is
not similar to the original position as it has no promotion potential,
the record is devoid of evidence establishing that the position in Israel
had superior promotion potential. Finally, while petitioner has alleged
that the agency has not indicated whether the new position in Germany is
a limited or unlimited tour, we note that the agency, in its May 22, 2000
offer of employment to petitioner, stated that the position was limited
to a three (3) year tour with a two (2) year extension at management's
discretion, as Department of Defense policy regarding overseas employment
for civilian employees limits overseas tours to five years. Further,
while not specifically stated in the Commission's Order, as found by the
Administrative Judge, we direct the agency to provide return rights to
petitioner's position with the Defense Logistics Agency upon completion
of petitioner's current assignment in Germany.
Paragraph (B): Back Pay, Interest, and Benefits
On June 30, 2000, the agency submitted its decision to the Office of
Federal Operations regarding back pay with documentation supporting
its conclusions. Specifically, the agency found that petitioner was
not entitled to back pay as he was in continuous federal employment
at a higher grade than he would have been at had be been selected for
the position in Israel. In so finding, the agency stated that the
Industrial Specialist position in Israel for which petitioner was
not selected was at the GS-11 level, while petitioner held a GS-13
position at the time he applied for the Industrial Specialist position
and thereafter until he accepted the position in Germany. The agency
further found that petitioner was not entitled to overseas expenses
or living quarters allowances (LQA) for which he sought payment.
Regarding overseas expenses, the agency found that petitioner was
not entitled to payment as he did not incur the overseas expenses and
had no entitlement to allowances at the time of the discrimination.
In so finding, the agency stated that its regulations did not permit
payment for entitlements which were never lost and overseas allowances
are payable only for actual overseas expenses incurred.
Petitioner raised several objections to the agency's methodology.
He stated that: (1) he was employed at the GS-13 level at the time he
applied for the position at issue; (2) he served in a GS-11 position
in 1994 and 1995; (3) the agency did not consider step increases at
the GS-11, step 00 level (identical to GS-13, step 3) that he would
have received until June 1994 at least; and (4) that amounts for living
quarters allowances and Sunday premium pay were ignored or inadequately
discussed.
The Commission finds that the agency's compliance report does not address
several issues raised by petitioner, nor can the Commission determine
if certain items should be afforded to petitioner. Initially, we find
that the agency's report does not specifically address whether petitioner
did in fact serve in a GS-11 position in 1994 and 1995, or whether the
agency considered any step increases at the GS-11, step 00 level which
petitioner would have received until June 1994 at the earliest. Such a
determination of petitioner's earnings could impact the agency's finding
regarding whether petitioner is entitled to back pay for the period after
he was not selected for the position at issue. In addition, we find
that the agency's compliance report did not consider or address whether
petitioner was entitled to overtime, compensatory time and other benefits
such as Sunday premium pay in determining that petitioner was not entitled
to back pay. Finally, for purposes of computation of possible back pay,
interest and benefits, we find that petitioner would have started the
position in Israel no earlier than March 1, 1990, the date the position
in Israel petitioner was denied was authorized by the agency, rather
than the start date of December 31, 1989 proffered by petitioner.
However, we do not adopt petitioner's objections to the agency's
calculations on several points. Initially, we agree with the agency's
findings that petitioner was a GS-12 Step 10 both before and after
the selection date of July 30, 1990, thus he was not a GS-13 at the
time he applied for the position in question. In addition, we agree
with the agency's finding that petitioner is not entitled to living
quarters allowances. As found by the agency, living quarters allowances
cannot be paid to petitioner as he did not incur expenses and had
no entitlement to the allowances at the time of the adverse action.
The agency correctly found that make whole remedy principles do not
include payment for entitlements that were never lost. Nevertheless,
we will direct the agency to conduct a supplemental investigation that
responds to several of petitioner's concerns, and issue a supplemental
report to petitioner and the Commission's Compliance Office.
CONCLUSION
Based upon a review of the record, the Commission grants the petition
for enforcement of the Order in Stan Laber v. Department of the Army,
EEOC Appeal No. 01973838 (December 22, 1998), in part. The agency is
directed to comply with the order below.
ORDER
Within thirty (30) days of the date this decision becomes final, the
agency is directed to take the following actions:
I. With regard to Paragraph A of the Order in EEOC Appeal No. 01964367
(Placement in GS-11 Industrial Specialist position in Israel), we direct
the agency to provide petitioner return rights to his position with the
Defense Logistics Agency upon his completion of his current assignment
in Germany, and also provide that the date for computation of benefits is
made retroactive to the date he would have begun the position in Israel,
which shall be determined by the agency to be no earlier than March 1,
1990 but no later than July 30, 1990.
II. With regard to Paragraph B of the Order in EEOC Appeal No. 01964367
(Back Pay, Interest, and Benefits), the agency is directed to conduct
a supplemental investigation on the subject of back pay, addressing the
following and providing a full explanation with regard to its denial of
back pay to petitioner, including, but not limited to:
(a) the methodology used to establish petitioner's earnings after he
was not selected for the position at issue; and
(b) whether amounts for overtime, compensatory time and other benefits
such as Sunday premium pay were included in the determination that
petitioner was not entitled to back pay.
II. 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 for the
items listed, above, including the agency's calculation of interest and
other payments and benefits due petitioner and a copy of the final agency
decision with regard to petitioner's claim for compensatory damages.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0900)
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 petitioner. If
the agency does not comply with the Commission's order, the petitioner
may petition the Commission for enforcement of the order. 29 C.F.R. �
1614.503(a). The petitioner 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 petitioner 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)(Supp. V 1993). If the petitioner 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 PETITIONER'S RIGHTS - ON PETITION FOR ENFORCEMENT
PETITIONER'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
January 23, 2002
__________________
Date
1 Petitioner filed a request for reconsideration with the Commission,
contending that the Commission's remedy order was insufficient.
In its decision on request for reconsideration, the Commission denied
petitioner's request and found that the decision in EEOC Appeal
No. 01973838 remained the Commission's final decision. Considering
petitioner's request, we found that the concerns raised over the
agency's noncompliance were speculative and anticipated noncompliance.
In so stating, however, the Commission ordered agency to comply with the
ORDER in the previous decision directing the agency to place petitioner
in the position he would have filled but for the discrimination and also
to provide him with �other benefits� denied due to the discrimination.
See Stan Laber v. Department of the Army, EEOC Request No. 05990372
(April 10, 2000).