0120111080
08-09-2013
Vivian M. Freeman, Complainant, v. Janet Napolitano, Secretary, Department of Homeland Security (Transportation Security Administration), Agency.
Vivian M. Freeman,
Complainant,
v.
Janet Napolitano,
Secretary,
Department of Homeland Security
(Transportation Security Administration),
Agency.
Appeal No. 0120111080
Hearing No. 100-2005-00689X
Agency No. HS04TSA001076
DECISION
On November 30, 2010, Complainant filed an appeal from the Agency's March 12, 2010, final order alleging non-compliance. See 29 C.F.R. � 1614.504(a); and 29 C.F.R. � 1614.405. The appeal is deemed timely and is accepted pursuant to 29 C.F.R. � 1614.405(b).
BACKGROUND
In the underlying case, Complainant alleged she was discriminated against on the bases of disability and retaliation when management limited her job function, and denied her training, a promotion and her telework request. Complainant requested a hearing before an EEOC Administrative Judge (AJ). The AJ held a hearing on July 6, 2006 and August 11, 2006 and issued a decision on January 27, 2010. The AJ found that the Agency had discriminated against Complainant when it failed to provide her a reasonable accommodation and denied her telework request which resulted in her not receiving a promotion; denied her training in time and attendance functions; and did not permit her to perform time and attendance duties. Among other things, the AJ ordered the Agency to provide the following remedies to Complainant:
1. amending her records to reflect that she worked five days per week throughout her employment.
2. restoring all leave taken for the two days per week she was at home rather than at work, from July 2003 until her removal. Leave shall not be restored for the periods of time the Complainant was out sick (e.g., those days in September/October 2003 when the Complainant was undergoing and recuperating from her cardiac catheterization).
3. promoting her to the next level, retroactive to May 2004. The Complainant's records shall be amended to reflect that promotion. Back pay shall be calculated in accordance with the Back Pay Act.
The Agency subsequently issued a final order adopting the AJ's finding that Complainant was discriminated against and agreeing to implement the relief ordered.
CONTENTIONS ON APPEAL
In her appeal, Complainant argues that she was not fully credited for her backpay from July 2003 to February 2005 and the Agency failed to factor in her promotion in 2004. Complainant argues that the documentation provided by the Agency regarding the leave she is entitled to is incomprehensible and does not cover the entire period. Finally, Complainant argues that the Agency, with respect to her Thrift Savings Plan adjustments, failed to provide documentation to establish that it complied with any monetary adjustments for breakage1 and that Complainant should have been permitted to provide catch-up contributions.
The Agency offers no statements in response.
ANALYSIS AND FINDINGS
Under 29 C.F.R. � 1614.504, if a complainant believes that an agency has failed to comply with the terms of a final action, he or she shall notify the EEO Director in writing of the alleged noncompliance within thirty days of when they knew or should have known of the alleged noncompliance. The regulation provides that the agency shall resolve the matter and respond to the complainant in writing. If the agency does not respond to the complainant or he or she is not satisfied with the agency's attempt to resolve the matter, they may appeal to the Commission for a determination as to whether the agency has complied with the final action.
In this case, the Agency fully adopted the AJ's decision finding discrimination and the remedy that was ordered. According to the record, the Complainant, through her attorney, notified the Agency that it had not complied with its final order. Dissatisfied with the Agency's response, Complainant filed this appeal.
A review of the record indicates the following documents: an email from a Management and Program Analyst at the Agency's Office of Civil Rights and Liberties office to Complainant dated September 8, 2010, which contains an attachment labeled "Back pay calculations and Disbursment.pdf. The attachment includes: (1) a document labeled "T and A Contact Point" which shows a disbursement of 36038.33; (2) a document that provides the Gross Back Pay, Outside Earnings Offset, Adjusted Gross Back Pay, Interest, and the Adjusted Gross Back Pay Plus Interest; and (3) three pages that appear to show how interest was calculated. There is no other documentation provided by either party to explain these documents.2
We find these documents to be insufficient to determine whether the Agency complied with its final order with regard to the issues of back pay, leave, and TSP contributions, including breakage. Accordingly, the Agency is ordered to provide documentation to Complainant to clarify these issues.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we find that the Agency has not established that it has complied with its March 12, 2010 final order. The Agency is required to comply with the order as set forth below.
ORDER
Within one hundred and twenty (120) calendar days of the date this decision becomes final, to the extent it has not already done so, the Agency shall:
1. Provide Complainant with a detailed statement of the Agency's calculations and payments made with regard to her back pay for the period of June 2003 to February 5, 2005. The Agency shall clearly indicate when the reimbursement is increased due to Complainant's promotion in 2004 or clearly explain why it is not required to do so;
2. Provide Complainant with a detailed statement of the Agency's calculations regarding Complainant's leave from the period of June 2003 to February 5, 2005. The Agency shall clearly indicate the days it is restoring to Complainant per the AJ's order.
3. Provide Complainant with a detailed statement of the Agency's calculations and payments made on Complainant's TSP account. Specifically, the Agency shall clearly explain how it derived its calculations for all Agency TSP contributions and for lost earnings on Complainant's TSP account. Moreover, the Agency shall clearly document all deductions made from Complainant's back pay award consisting of employee TSP contributions, specifically indicating how it calculated these amounts. The Agency shall provide evidence showing whether it has reimbursed the lost earnings to Complainant's account. The Agency shall then issue a new final decision indicating whether it has complied with corrective action and that provides appeal rights to the Commission. A copy of the Agency's decision must be sent to the Compliance Officer as referenced herein.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0610)
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 77960, Washington, DC 20013. 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 APPEAL
RECONSIDERATION (M0610)
The Commission may, in its discretion, reconsider the decision in this case if the Complainant or the Agency submits a written request containing arguments or evidence which tend to establish that:
1. The appellate decision involved a clearly erroneous interpretation of material fact or law; or
2. The appellate decision will have a substantial impact on the policies, practices, or operations of the Agency.
Requests to reconsider, with supporting statement or brief, must be filed with the Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision or within twenty (20) calendar days of receipt of another party's timely request for reconsideration. See 29 C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at 9-18 (November 9, 1999). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. In the absence of a legible postmark, the request to reconsider shall be deemed timely filed if it is received by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. � 1614.604. The request or opposition must also include proof of service on the other party.
Failure to file within the time period will result in dismissal of your request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted with your request for reconsideration. The Commission will consider requests for reconsideration filed after the deadline only in very limited circumstances. See 29 C.F.R. � 1614.604(c).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (R0610)
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 (Z0610)
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 from the Court that the Court appoint an attorney to represent you and that the Court also 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 with the Court 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
__8/9/13________________
Date
1 Breakage is defined as "the loss incurred or the gain realized on makeup or late contributions." 5 C.F.R. � 1605.1(b).
2 In his statement on appeal, Complainant's attorney refers to a March 8, 2011 submission by the Agency to the Commission; however, our records do not contain said submission.
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0120111080
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120111080