04A30035
03-11-2004
Tommie A. Richardson, Petitioner, v. Tommy G. Thompson, Secretary, Department of Health and Human Services, Agency.
Tommie A. Richardson v. Department of Health and Human Services
04A30035
03-11-04
.
Tommie A. Richardson,
Petitioner,
v.
Tommy G. Thompson,
Secretary,
Department of Health and Human Services,
Agency.
Petition No. 04A30035
Request No. 05A20155
Appeal No. 01985453
Agency No. IHS 044-96
GRANTING OF PETITION FOR ENFORCEMENT
INTRODUCTION
Tommie A. Richardson (the petitioner) filed a Petition for Enforcement
with the Equal Employment Opportunity Commission (the Commission)
requesting enforcement of the order for remedial relief set forth in
Tommie A. Richardson v. Department of Health and Human Services, EEOC
Request No. 05A20155 (May 23, 2002). This petition for enforcement is
granted in part by the Commission pursuant to 29 C.F.R. � 1614.503.
ISSUE PRESENTED
The issue presented in this petition is whether the agency has complied
with the Commission's Order in EEOC Appeal No. 01985453.
BACKGROUND
Petitioner filed a formal complaint on April 8, 1996, alleging that she
was discriminated against because of her disability (Thoracic Outlet
Syndrome) when management failed to provide her with a reasonable
accommodation by not reassigning her to the Medical Clerk position
(Medical Clerk), Vacancy Announcement No. OC-96-60, in Contract Health.
In Richardson v. Department of Health and Human Services, EEOC Appeal
No. 01985453 (September 27, 2001), the Commission found that petitioner
was discriminated against on the basis of her disability. Among other
things, the agency was ordered to:
1. Retroactively reinstate petitioner to the position of Medical Clerk,
or an equivalent position at the agency's Wewoka Indian Hospital,
Wewoka, Oklahoma.
2. Award petitioner back pay, with interest, for all wages and benefits,
if applicable, between the date she was denied a reasonable accommodation,
and the date she returned to duty, declined the offer of reinstatement,
or was otherwise unable to return to duty.
5. Submit a report of compliance, as provided in the statement entitled
"Implementation of the Commission's Decision." The report will include
supporting documentation on the agency's calculation of back pay and
other benefits due petitioner, and the agency's decision regarding
compensatory damages, including evidence that the corrective action has
been implemented.
The agency's request for reconsideration was denied, in Richardson
v. Department of Health and Human Services, EEOC Request No. 05A20155
(May 23, 2002), because it was untimely filed. The agency was informed
that the decision in EEOC Appeal No. 01985453 remained the Commission's
final decision and that it had to comply with the Order in that decision.
In a letter dated April 13, 2003, petitioner informed the Commission,
in pertinent part, that:
1) the agency had not fully compensated her for the back pay and interest
that she was owed;
2) the agency had not fully reimbursed her for annual and sick leave; and
3) the agency never addressed the issue of compensatory damages.<1>
The agency opposes this petition. According to the agency, it has
complied with the Commission's order.
ANALYSIS AND FINDINGS
The Commission's regulations provide that an aggrieved person may petition
the Commission for enforcement of a decision issued under the Commission's
appellate jurisdiction. 29 C.F.R. � 1614.503(a). At issue is whether
the agency has fully complied with the Commission's prior order.
At the outset, we note that in a letter to an agency official dated
May 27, 2003, petitioner indicated that, �My annual and sick leave
has been restored to my account as of May 15, 2003 . . . .� Therefore,
we consider this matter no longer at issue.
With respect to petitioner's claim that the agency has not fully complied
with the Commission's order that she be provided back pay with interest
from the date she was denied a reasonable accommodation through the date
she returned to duty, the agency provided both argument and evidence
that petitioner was provided a $155,040.08 gross payment with a net
payment to her bank account in the amount of $127,302.22.<2>
Petitioner maintains, however, that she should have received a gross
payment of $158,683.24 with a net payment to her bank account in the
amount of $149,368.80. This would reflect a discrepancy of $22,066.58.
According to petitioner, the agency erred with respect to the amount
of her total base pay and the total amount of interest to which she was
entitled. She also maintained that the agency erroneously deducted from
her payment the amount of the premiums for her health and life insurance
for the period of 1996 through 2002. According to petitioner, these
amounts were already withheld by the Office of Workers' Compensation
and OPM during the time she was away from work.
Although the agency has provided documentation regarding the payment
that it made to petitioner, we find that it has not directly addressed
her contention that she is owed an additional payment of $22,066.58.
Therefore, the Commission and petitioner have no way of determining
whether the agency's total is correct. Accordingly, we will remand this
matter to the agency for a supplemental investigation in accordance with
the Order below.
With regard to petitioner's contention that the agency never addressed
the issue of compensatory damages, we find, after reviewing the Order
set forth in EEOC Appeal No. 01985453 and later repeated in EEOC Request
No. 05A20155, that the agency was never ordered to pay or to consider
compensatory damages as a remedy in this case. Although paragraph 5
of the Order does contain language stating that the agency's compliance
report should, among other things, include the agency's decision regarding
compensatory damages, when viewed in context, however, it is clear that
this language was in error. Consequently, we find that the agency was
not required to address the issue of compensatory damages.
CONCLUSION
Based upon a review of the record and the submissions of the parties,
and for the foregoing reasons, the Commission grants the petition for
enforcement, in part. The Commission finds that the agency has not
fully complied with the Commission's Order in EEOC Appeal No. 01985453.
ORDER
Within sixty (60) calendar days of its receipt of this decision, the
agency is ordered to conduct a supplemental investigation, which shall
include the following actions:
1. The agency shall provide an affidavit from a person with detailed
knowledge that directly addresses petitioner's claim that she is
entitled to an additional payment of $22,066.58 in back pay and interest.
The affidavit must indicate whether the petitioner is correct when she
claims that the agency erred with respect to its calculation of her total
base pay and total interest, and that the agency erroneously deducted the
premiums for her health and life insurance for the period of 1996 through
2002. In addition, the agency shall provide copies of any documentary
evidence that it utilizes in completing the affidavit. If, during the
course of the supplemental investigation, the agency determines that
petitioner is entitled to an additional payment then the agency shall
issue a check to petitioner for that amount. The agency shall provide
petitioner with a copy of the agency's supplemental investigation.
2. The agency shall submit the documentation ordered above, along with
a copy of any additional check, to Compliance Officer as referenced below.
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.
ATTORNEY'S FEES (H0900)
If complainant 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.
STATEMENT OF PETITIONER'S RIGHTS - ON PETITION FOR ENFORCEMENT
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
___03-11-04___________________________
Date
1The record indicates that, in October 2002, complainant was appointed to
the position of Medical Support Assistant at the Wewoka Indian Hospital.
2The agency also indicated that it was informed by the Office of Personnel
Management that it had overpaid petitioner in the amount of $57,260.33,
because it did not deduct her disability retirement payments. According
to petitioner, she paid the full amount of the overpayment in May 2003.