05a21310
02-24-2003
Vernon R. Cook v. Department of Veterans Affairs 05A21310 02-24-03 .Vernon R. Cook, Complainant, v. Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.
Vernon R. Cook v. Department of Veterans Affairs
05A21310
02-24-03
.Vernon R. Cook,
Complainant,
v.
Anthony J. Principi,
Secretary,
Department of Veterans Affairs,
Agency.
Request No. 05A21310
Appeal Nos. 01A02707 & 01A20398
DENIAL OF REQUEST FOR RECONSIDERATION
On September 19, 2002, Vernon R. Cook (hereinafter referred to as
the complainant) initiated a timely request to the Equal Employment
Opportunity Commission (Commission) to reconsider the decision in Vernon
R. Cook v. Anthony J. Principi, Secretary, Department of Veterans Affairs,
EEOC Appeal Nos. 01A02707 & 01A20398 (August 14, 2002). EEOC Regulations
provide that the Commission may, in its discretion, reconsider any
previous decision where the party demonstrates that: (1) the previous
decision involved a clearly erroneous interpretation of material fact or
law; or (2) the decision will have a substantial impact on the policies,
practices, or operation of the agency. 29 C.F.R. � 1614.405(b).
After a review of complainant's request for reconsideration, the agency's
response thereto, the previous decision, and the entire record, the
Commission finds that complainant's request does not meet the criteria in
29 C.F.R. � 1614.405(b). Therefore, it is the decision of the Commission
to deny complainant's request. The decision in EEOC Appeal Nos. 01A02707
& 01A20398 (August 14, 2002) remains the Commission's final decision.
The agency shall comply with the provisions of the Order set forth below.
There is no further right of administrative appeal on a decision of the
Commission on this Request for Reconsideration.
ORDER
The agency is ORDERED to take the following remedial action:
1. The agency shall calculate back pay and benefits (including overtime),
interest, TSP contributions and earnings, and retirement contributions
due to complainant from the last pay period in January 1991 through
November 5, 1996, and award complainant those amounts to which he was
entitled but was not previously awarded. The agency shall provide a
detailed explanation of the methods and factors used in its calculations.
Such calculations shall be made no later than sixty (60) calendar
days after the date this decision becomes final. The claimant shall
cooperate in the agency's efforts to compute the amount of back pay and
benefits due, and shall provide all relevant information requested by
the agency. If there is a dispute regarding the exact amount of back
pay and/or benefits, the agency shall issue a check to the claimant for
the undisputed amount within sixty (60) calendar days of the date the
agency determines the amount it believes to be due. The claimant may
petition for enforcement or clarification of the amount in dispute.
The petition for clarification or enforcement must be filed with the
Compliance Officer, at the address referenced in the statement entitled
"Implementation of the Commission's Decision."
2. The agency shall provide documentation to show when complainant was
promoted to and compensated at the GS-9 level. If complainant was not
promoted, the agency shall recalculate complainant's back pay award to
reflect this increase as of the date that complainant became eligible
in January 1994.
3. The agency shall provide documentation as to whether, during the
period in question, Examiners were allowed to work overtime, the average
amount of overtime worked, and whether it was a factor in complainant's
back pay calculations. To the extent that overtime was allowed, and
not included in the back pay calculations, complainant is entitled to
an appropriate award of overtime.
4. The agency shall indicate when interest accrual ceased and when
payments were actually made to complainant, and explain why there was a
delay between actual payment to complainant and the date that interest
ceased to accrue. If indeed there was a delay, complainant is entitled
to an appropriate award of interest for that time period.
5. The agency shall explain whether Examiners were eligible for promotion
above the GS-9 level, and, if so, provide a detailed explanation as
to why complainant would not have been so promoted. If Examiners were
promoted non-competitively to positions above the GS-9 level prior to
November 1996, then complainant would be entitled to those promotions.
6. The agency shall provide proof that it fully complied with the AJ's
posting order, including, but not limited to, a copy of the posting signed
by the appropriate agency official and a statement confirming agency
compliance, under oath or affirmation, by a person with knowledge of
the complaint at the Department of Veterans Affairs Medical and Regional
Office Center in Sioux Falls, South Dakota.
7. The agency shall complete its supplementation of the record within
sixty (60) calendar days of the date this decision becomes final and
forward a copy of the supplemental record to complainant and seek his
comments thereon. The report shall include supporting documentation of
the agency's calculation of back pay and other benefits due complainant,
including evidence that the corrective action has been implemented.
Within sixty (60) calendar days of the date this decision becomes final,
the agency shall forward to the Commission the information obtained during
its supplemental investigation, as well as any comments from complainant,
for further review of its compliance with the Commission's order.
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 REQUEST FOR RECONSIDERATION
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (P0900)
This decision of the Commission is final, and there is no further right
of administrative appeal from the Commission's decision. 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. 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.
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
______02-24-03____________________________
Date