01971680
11-23-1998
Theresa R. Marr, Appellant, v. F. Whitten Peters, Acting Secretary, U.S. Department of the Air Force, Agency.
Theresa R. Marr v. U.S. Department of the Air Force
01971680
November 23, 1998
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 19848
Washington, D.C. 20036
Theresa R. Marr, )
Appellant, )
) Appeal No. 01971680
v. ) Agency No. KJOU92003
) Hearing No. 360-93-8230X
F. Whitten Peters, )
Acting Secretary, )
U.S. Department of the Air Force, )
Agency. )
__________________________________)
DECISION on PETITION FOR ENFORCEMENT
INTRODUCTION
On January 21, 1997, Theresa R. Marr (petitioner) filed a petition
with the Equal Employment Opportunity Commission (EEOC or Commission)
requesting enforcement of an Order issued in Theresa R. Marr v. Department
of the Air Force, EEOC Appeal No. 01941344 (June 27, 1996). In said
Order, the agency was directed to restore any sick and annual leave
petitioner was compelled to take in direct response to the hostile
environment caused by sexual and sex-based harassment in violation of
Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e
et seq. This petition for enforcement is accepted by the Commission
pursuant to 29 C.F.R. � 1614.503.
ISSUE PRESENTED
The issue presented is whether the agency properly calculated petitioner's
annual and sick leave time and restored the hours to appellant's leave
balance in accordance with this Commission's ORDER.
BACKGROUND
On December 30, 1991, and July 2, 1992, respectively, petitioner filed
an EEO complaint and an addendum to that complaint, alleging that
she was subjected to discrimination based on her sex (female), and/or
reprisal when she was subjected to a sex-based and sexually harassing
hostile work environment, was nonselected for various promotions,
and the alleged harassing official attempted to interfere with the EEO
process by intimidating a witness during EEO counseling. On November
3, 1992, the agency issued a final agency decision (FAD) rejecting
portions of petitioner's complaint for untimely EEO contact, which
after an appeal, the EEOC remanded to the agency for an investigation.
Following an investigation of this complaint, petitioner requested an EEO
administrative hearing before an EEOC administrative judge (AJ). After
the hearing, the AJ issued a Bench Decision finding no discrimination,
which the agency adopted as its final decision. However, on appeal, the
Commission found discrimination with respect to petitioner's allegation
of a hostile environment, and her supervisor's interference with the
EEO process. One of the remedies this Commission ORDERED was that the
agency "restore any sick and annual leave [petitioner] was compelled
to take in direct response to the hostile environment caused by sexual
and sex-based harassment. Appellant may have also taken sick or annual
leave in avoidance of the hostile work environment, for which she should
be reimbursed."
On December 24, 1996, the agency, in response to the Commission's Order,
devised a process whereby they determined petitioner's "average leave
usage" during her federal service career in order to ascertain the amount
of leave to be restored to petitioner's leave balances. In other words,
the agency determined how much annual and sick leave petitioner's used
prior to her harassment, then subtracted that average from the actual
amount of leave she used for the periods in question. If the amount
of leave petitioner used was greater than her average leave usage, then
the agency multiplied this difference by her hourly salary at the time.
For instance, the agency determined that petitioner's prior average annual
leave use was 151 hours, and sick leave use was 97.5 hours. In 1992,
the agency determined that petitioner used 216 hours of annual leave.
Therefore, the agency subtracted her 151 annual leave hours average
from her actual 216 annual leave hours, for 65 hours over her average
annual leave use. Then, the agency multiplied 65 hours with $20.48,
petitioner's hourly rate of pay during 1992 to arrive at $1331.20 as
reimbursement for annual leave for the year 1992.
On January 21, 199, petitioner filed a petition regarding the agency's
restoration and reimbursement of leave. Petitioner argued that the
agency's use of an average annual leave use rate violated the Commissions
Order and as such, that the agency should be sanctioned for resorting to
an "average rate" of leave calculation. She also argued that she should
be reimbursed at her current rate of pay. Petitioner also requested
additional attorney's fees for the agency's failure to comply with the
Commission's Order.
ANALYSIS AND FINDINGS
Since a victim of discrimination is entitled to be made whole,
this extends to the restoration of benefits, such as sick and annual
leave. However, a distinction must be made between restoration of sick
leave and a claim for monetary reimbursement for sick leave used. The
distinction was explained in Merriell v. Secretary of Transportation,
EEOC Request No. 05890596 (August 10, 1989):
[T]he Commission has previously determined that a claim for monetary
reimbursement with respect to the use of sick leave is essentially a
claim for compensatory damages arising from medical illnesses, which thus
cannot be recovered in a Title VII action. See [Conrad v. Department
of Interior,] EEOC Request No. 05880821 [December 18, 1988].However,
a claim for restoration of sick leave hours which were allegedly taken
because of, or as a result of, discriminatory actions has been determined
to be a request for equitable damages which are awardable under Title
VII. See [Hampton v. Department of Air Force,] EEOC Appeal No. 01872448
(September 30, 1987). The restoration of leave is equivalent to an award
of lost benefits or other concomitant of employment which would have
been earned, retained or accrued absent the alleged discrimination. See,
e.g., Walker v. Ford Motor Co., 29 F.E.P. Cases 1259, [at] 1266 (11th
Cir. 1982). Accordingly, if leave was taken in order to avoid or recover
from discriminatory harassment, such leave must be treated as excused
administrative leave in order to make the appellant whole and place her
in the position she would have been in absent the discrimination. See
[Dailey v. Department of Transportation,] EEOC Appeal No. 01841151
(March 6, 1986).
Therefore, "a successful Title VII harassment complainant is entitled
to reimbursement of sick leave taken as a direct result of unlawful
discrimination." Meagher v. Secretary of Defense, 01923706 (May 19,
1993). The restoration of sick leave taken "for the purpose of avoiding
or recovering from discriminatory harassment was a valid component of
equitable relief under Title VII." As such, it is not part of compensatory
damages under the 1991 Civil Rights Act, but part of the "make whole"
remedy by placing her in the position she would have occupied absent
the discrimination. Albermarle Paper Co. v. Moody, 422 U.S. 405 (1975).
However, in order to be entitled to restoration of the leave, the employee
must demonstrate a causal connection between the harassment and need
to take leave. Velez v. Postmaster General, EEOC Appeal No. 01902746
(November 16, 1990). Petitioner did not indicate what leave time
was taken in response to the harassment. The only evidence of record
provided by petitioner is an eight-page chart entitled,"BEING SUBJECTED
TO A DISCRIMINATORY WORK ENVIRONMENT AFFECTED MY ATTENDANCE AT WORK. MY
ANNUAL LEAVE, SICK LEAVE, AND LEAVE WITHOUT PAY ARE PROVIDED." The chart
listed petitioner's entire annual leave, sick leave, and leave without
pay balance from 1989 through 1996, absent any explanation as to why,
when, or how much time petitioner needed to use as a direct result of
the harassment. Absent some evidence of a nexus between the two, we
find that in this particular case, the agency's "average leave usage"
calculation is a reasonable approach to demonstrating causation, i.e., the
possible effect of harassment upon petitioner during the time in question.
Although petitioner disputes the manner in which the agency calculated
her restored leave, she has provided no details about what manner would
be correct. Therefore, in view of the above, the Commission finds that
the agency's utilization of her "average leave usage" in order to figure
petitioner's annual and sick leave reimbursement a reasonable place to
begin our calculation.
Under the "make whole" remedy enunciated in Albemarle, we need only
place petitioner in the position she would have occupied absent the
discrimination. Absent discrimination, petitioner would not have taken
excess leave. As such, petitioner is entitled only to having her leave
restored to her current federal employee balances. Therefore, we find
that petitioner is to have her sick leave balance restored with 89.5
hours, and her annual leave balance restored with 204 hours. These hours
were derived from the following figures:
Prior Average Amount Used
Leave Year Leave Used Leave Usage Over Average
1989 149 151 0 Annual Leave
171 97.5 73.5 Sick Leave
1990 251 151 100 Annual Leave
17 97.5 0 Sick Leave
1991 190 151 39 Annual Leave
99 97.5 1.5 Sick Leave
1992 216 151 65 Annual Leave
112 97.5 14.5 Sick Leave
Total Annual Leave = 204 hours
Total Sick Leave = 89.5 hours
Petitioner argued that agency claimed that she took only 17 hours of
sick leave during 1990, but that petitioner's records reflect that she
took 155 hours. Should petitioner provide evidence showing as much,
the agency is to restore her sick leave according to average leave usage
method discussed above.
Petitioner's claim for attorney's fees with regard to this petition is
denied.
CONCLUSION
Based upon a review of the record, and for the forgoing reasons,
petitioner's Petition for Enforcement is denied. However, for the
reasons set forth above, this matter is REMANDED to the agency for
further processing in accordance with this decision.
ORDER
The agency is ORDERED to restore the petitioner's leave balances as
forth in this decision within thirty (30) calendar days. The agency
shall submit the documentation to the Compliance Officer referenced
below within sixty (30) calendar days of the receipt of this decision.
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 the appellant. If
the agency does not comply with the Commission's order, the appellant
may petition the Commission for enforcement of the order. 29 C.F.R. s
1614.503(a). The 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. ss 1614.408,
1614.409, and 1614.503(g). Alternatively, the 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. ss
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. s 2000e-16(c) (Supp. V 1993). If the appellant files a civil
action, the administrative processing of the complaint, including any
petition for enforcement, will be terminated. See 29 C.F.R. s 1614.410.
STATEMENT OF RIGHTS - PETITION FOR ENFORCEMENT
RIGHT TO FILE A CIVIL ACTION (S0993)
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. 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 (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. s 2000e
et seq.; the Rehabilitation Act of 1973, as amended, 29 U.S.C. ss 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:
Nov 23, 1998
________ __________________________
DATE Frances M. Hart
Executive Officer
Executive Secretariat