Calvin O. Lawrie, Complainant,v.Dr. James G. Roche, Secretary, Department of the Air Force, Agency.

Equal Employment Opportunity CommissionDec 2, 2003
01A33426_r (E.E.O.C. Dec. 2, 2003)

01A33426_r

12-02-2003

Calvin O. Lawrie, Complainant, v. Dr. James G. Roche, Secretary, Department of the Air Force, Agency.


Calvin O. Lawrie v. Department of the Air Force

01A33426

December 2, 2003

.

Calvin O. Lawrie,

Complainant,

v.

Dr. James G. Roche,

Secretary,

Department of the Air Force,

Agency.

Appeal No. 01A33426

Agency No. 9V1M00547

Hearing No. 310-A1-5314X

DECISION

Complainant initiated an appeal dated May 13, 2003, seeking a

determination as to whether the agency has fully complied with its

final order dated March 21, 2003.. Complainant's appeal is accepted in

accordance with 29 C.F.R. � 1614.504(b) and (c).

On March 21, 2003, the final order fully implemented a decision by an

EEOC Administrative Judge (AJ) finding discrimination following a hearing

pursuant to a complaint of discrimination in which complainant alleged

that he was subjected to discrimination on the bases of race (Black),

color (black), disability (asthma and sinus), and in reprisal for prior

protected activity when he received a Notice of Decision to Terminate

during his probationary period on January 14, 2000.

The agency's final order implemented the following remedies:

Complainant is entitled to backpay from the time of his termination,

January 14, 2000, through June 5, 2001, the date complainant was approved

for disability retirement by the Office of Personnel Management (OPM).

If complainant is no longer receiving such benefits and is able to

return to work, then the agency shall reinstate him to the position he

would have held but for the discrimination. This is to be completed

no later than sixty (60) calendar days after the date this decision or

any appellate decision becomes final.

The agency shall pay complainant $1,500.00 for emotional distress.

The agency shall post the attached notice (after being signed by a duly

authorized representative).

Complainant filed an appeal with the Commission alleging that the agency

failed to fully implement the AJ's February 6, 2003 decision.

In response to complainant's appeal, the agency claims that it has

fully implemented the AJ's decision. Specifically, the agency states

that the request for backpay was forwarded to the Defense Finance and

Accounting Agency (DFAS) on April 28, 2003. The agency states that it

received notification from DFAS on May 12, 2003, that it had completed

the action and was processing the payment for complainant. The agency

claims that the backpay computation worksheet, required for computation

of backpay, was not received from complainant until April 21, 2003,

thus delaying the submission of the request to DFAS. With regard to

backpay, the agency notes that complainant has not submitted evidence

that he is not still receiving disability retirement benefits; thus,

the agency explains that his backpay was limited to the time from his

termination, January 14, 2000, until June 5, 2001. Additionally, the

agency avers that the $1,500.00 awarded to complainant for emotional

distress was scheduled for payment on April 18, 2003. Finally, the

agency states the posting of the required notice began on April 2, 2003,

and will remain posted until July 2, 2003.

The record contains a May 21, 2003 memorandum from Person A, Employee

Relations, stating that voucher #130038247 was prepared on April 18,

2003 in the amount of $1,500.00, scheduled to be paid on April 18, 2003.

Person A also stated that the initial request for payment of complainant's

backpay was forwarded to DFAS on April 28, 2003. Person A stated that

notification was received from DFAS on May 12, 2003, that they had

completed the action and were processing his payment. Finally, Person

A stated that the requisite notice was posted on April 2, 2003 and will

remain posted until July 2, 2003.

The record contains an IAPS computer printout showing that a check for

$1,500.00 was prepared for complainant to be paid on April 18, 2003.

Additionally, the record contains a copy of a Backpay Computation

Worksheet completed and signed by complainant on April 21, 2003.

Upon review, we find that complainant failed to show that the agency is

in non-compliance with its March 21, 2003 agency decision. Complainant

acknowledges, in an untimely submission, that he has received the

backpay award. The Commission further agrees with the agency's position

that since complainant has not presented evidence that he is not still

receiving disability retirement benefits, the agency is not required to

reinstate complainant. Additionally, the agency has demonstrated that it

processed a voucher in the amount of $1,500.00 for payment to complainant

on April 18, 2003, in accordance with the AJ's decision awarding that

amount for compensatory damages. Complainant has not claimed that he did

not receive the compensatory damage award. Finally, the agency provides

a statement from an Employee Relations specialist that the requisite

notice was posted beginning April 2, 2003. Complainant does not argue

that the required notice was not posted. Complainant failed to note

a specific remedy required by the agency's March 21, 2003 decision that

the agency has not implemented.

Therefore, we find that complainant failed to show that the agency has

not complied with the March 21, 2003 agency decision.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0701)

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), 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 19848,

Washington, D.C. 20036. 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 (S0900)

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. 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 (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

December 2, 2003

__________________

Date