01A32919_r
01-26-2005
Debra S. Derickson, Complainant, v. Ann M. Veneman, Secretary, Department of Agriculture, Agency.
Debra S. Derickson v. Department of Agriculture
01A32919
January 26, 2005
.
Debra S. Derickson,
Complainant,
v.
Ann M. Veneman,
Secretary,
Department of Agriculture,
Agency.
Appeal No. 01A32919
Agency No. 000409
Hearing No. 260-A0-9219X
DECISION
Complainant filed an appeal with this Commission on April 21, 2003,
seeking a determination whether the agency has fully complied with its
notice of final order.
BACKGROUND
The record reveals that during the relevant time complainant was employed
with the agency's Blackwell Job Corps Center, Laona, Wisconsin office as a
Residential Advisor, level 5 in the Social Living section of the agency. A
review of the record reveals that complainant filed a discrimination
complaint on February 22, 2000, alleging that she was subjected to
discrimination on the bases of disability (post traumatic stress disorder,
depression, anxiety attacks) and in retaliation for prior EEO activity
when: (a) during the time period of September 1999, and December 1, 1999,
the agency allegedly failed to accommodate her by denying her requests for
change of duty on several occasions; and (b) on April 1, 2000, complainant
was not selected for the position of Automation Clerk, and management
allegedly stopped trying to find a reasonable accommodation for her.
Upon completion of the investigation of her complaint, complainant
requested a hearing before an EEOC Administrative Judge (AJ).
On December 6, 2001, the AJ issued a decision finding complainant was
discriminated against on the basis of disability when the agency failed to
accommodate her, and retaliated against her for having filed an informal
EEO complaint when it denied her requests for change of duty during the
time period of September 1999, and August 6, 2000, including reassignment
to the Automation Clerk position. The AJ noted that the non-selection for
the Automation Clerk position was not an issue accepted for investigation
and not part of the decision in the case. Further, the AJ found that
complainant was constructively discharged on August 6, 2000, when she was
forced out of her job by being reassigned to the Social Living section,
which complainant's doctors had recommended against and which resulted in
complainant not being able to continue to work and in her leaving on leave
without pay. As corrective action, the AJ ordered the following relief:
Equitable relief.
The amounts to be given complainant as equitable relief will be the
completed amounts as herein stated and there will be no deductions for
disability retirement benefits, or for unemployment benefits.
The agency shall reinstate complainant to a GS-5, step 4,
position equivalent to the position she would have held but for the
discrimination, or to give her front pay until the time she is reinstated.
The reinstatement would include customary increases of annual and
sick leave, health and life insurance, and retirement contributions.
A front pay award is also to include benefits and customary increases
until complainant is reinstated.
The position to which she would be reinstated would first be approved by
complainant's doctor as not being adverse to her interests. The doctor's
opinion would be given within 20 days after the reinstatement offer
is made.
The agency shall give complainant an amount representing the difference of
pay at the GS-9, step 1 level, and the GS-5, step 3 level, the official
level of complainant's position when she was, in fact, performing the
duties of a GS-9 employee during the time she worked at the Counseling
Department. The agency shall give complainant an amount representing
the pay and benefits of a GS-5, step 3, for the time period of August
6, 2000, to January 17, 2001; the pay and benefits of a GS-5, step 4,
from January 18, 2001, until complainant is reinstated. Back pay is to
be given with interest.
The agency shall reinstate complainant's annual leave for the time
period of November 1 to November 21, 1999, or, to give her an amount
equal to the leave which would have been at four hours per pay period
until January 18, 2001, the completion of three years of service,
and which would have been at six hours per pay period from then on,
with 10 hours for the final pay period each year.
The agency shall restore complainant's sick leave at the rate of four
hours per pay period, until January 18, 2001, and then at six hours per
pay period, with 10 hours for the final pay period each year.
The agency shall give complainant an amount representing her share of
the agency's contributions to retirement and life insurance.
Pecuniary relief. . . .
Compensatory damages. . . .
Other relief.
Personnel actions.
The agency shall give complainant a letter, to be placed in her personnel
file, verifying the work she performed from November 22, 1999, to August
5, 2000. The agency was ordered to give complainant, and place in her
personnel file, a performance appraisal for the work period of October 1,
1999, and October 1, 2000, as there are no appraisals in complainant's
file for that time period.
Management training.
The agency shall conduct training for all managerial personnel at the
job corps where complainant worked and that attendance at the training
is mandatory. The training shall detail the agency's responsibilities
with respect to the elimination of discrimination because of mental
disability, the requirements of accommodating qualified individuals with
disabilities, and the prohibition of retaliation against any employee
because the employee participated in protected activity.
3. Posting of Notice.
The agency shall post the Attached Notice at the job corps where
complainant worked. Copies of the Notice, after being signed by the
agency's authorized representative, shall be posted by the agency
immediately upon receipt, and be maintained for 180 consecutive
days, in conspicuous places, including all places where notices
to employees and applicants for employment are customarily placed.
The agency should take reasonable steps to ensure that the Notice
remains visible to employees during all of the time they are posted.
Attorney's fees.
The agency shall give complainant the sum of $19,890.00 to cover
attorney's fees.
In a January 22, 2002 letter, complainant stated that the agency
failed to issue a final order in accordance with the AJ's December 6,
2001 decision. Complainant requested all relief ordered by the AJ be
specifically implemented.
On March 1, 2002, complainant contacted the agency again regarding its
failure to issue a final order in accordance with the AJ's decision.
Complainant stated that the agency to date has failed to post a finding
of discrimination, reinstate her, award front pay, pay attorney's fees,
or provide any other relief provided in the AJ's Order. Complainant
requested specific enforcement of all corrective action.
On March 1, 2002, the agency issued a final order fully implementing the
AJ's December 6, 2001 decision finding discrimination and all remedial
relief ordered in that decision.
The record contains a March 25, 2002 letter from complainant requesting
front pay with benefits and customary increases while awaiting
reinstatement from the agency to a GS-5 step 5 position. Complainant
requests front pay at the GS-5, step 5 level to commence immediately.
Complainant notes that the AJ ordered reinstatement to a GS-5 step 4
position with customary increases and she states that January 18, 2002,
was her anniversary date and she was due a one step increase on this date.
Complainant states that she is anxiously awaiting a job description which
will be forwarded to her doctor for approval. Complainant also requests
payment and benefits at GS-5 step 5 from January 18, 2002, until front
pay is issued; at GS-5 step 4 from January 18, 2001, through January 18,
2002; and at GS-5 step 3 from August 6, 2000, through January 17, 2001;
and the difference in pay/benefits of a GS-9 step 1 and GS-5 step 3 from
November 21, 1999, through August 5, 2000. Additionally, complainant
requests compliance with all subparts of �Other Relief� under the AJ's
Order and attorney's fees. Complainant acknowledges receipt of a lump
sum payment for compensatory and pecuniary damages without interest.
The record reveals that on April 18, 2002, the agency sent complainant a
facsimile containing the position descriptions for a GS-303-5 Operations
Support Clerk and a GS-326-5 Office Automation Assistant. In a subsequent
April 25, 2002 letter, the agency proposed to reinstate complainant to
the permanent GS-303-5 position with the Blackwell Job Corps Center and
then detail her to a GS-303-5 position on the Chequamegon-Nicolet National
Forest for one year. At the end of the one-year detail, the agency stated
that complainant would be placed in her permanent position with Blackwell
Job Corps if approved by her physician, otherwise, the agency stated
that her detail may be continued. The agency stated that these actions
will be effective the first pay period following complainant's release to
return to work. The agency noted that complainant's disability retirement
will be cancelled; leave and earnings will be credited as though she were
with the agency this whole time; within grade increases and pay increases
will be added as appropriate; and sick and annual leave will be credited.
However, the agency argued that the AJ's Order incorrectly instructed the
restoration of sick leave at the rate of six hours per pay period after
January 18, 2001. The agency claimed that this would be in violation
of current regulations that only allow government employees, regardless
of years of service, to earn four hours of sick leave per pay period.
The agency stated that a separate payment will be issued to complainant
for the difference in pay between August 6, 2000, and January 17, 2001.
The record contains two letters dated May 8, 2002, from Person A,
complainant's doctor at the Counseling Center-Lakeland, and Person B,
licensed clinical social worker at the Counseling Center-Lakeland, who
reviewed the agency's offer to temporarily detail complainant as an office
automation assistant to Chequamegon and then return complainant to work
as an operation support clerk at the Blackwell Job Corps. The May 8, 2002
letters did not approve of the proposed detail and subsequent reassignment
to Blackwell. Specifically, complainant's medical providers noted their
concerns of complainant �being exposed to any work environment which would
require her in an emergency to respond to conflicts within the Blackwell
facility and/or render emergency assistance.� The medical providers
stated that they would not approve return to the Blackwell Job Corps
because �return to such a site is not in her emotional or physical best
interest and would place her at risk of once again [being] retraumatized.�
In a letter dated May 14, 2002, complainant alleged that the agency
failed to comply with all aspects of the Equitable Relief portion of
the judgment in the AJ's decision and all aspects of the �Other Relief�
portion of the Order.
In a June 5, 2002 letter, the agency stated that it was working on placing
complainant in a permanent position outside of the Blackwell Job Corps
Center. The agency stated, however, that while this work is continuing,
they were placing complainant on a detail to the GS-303-5 position
on the Chequamegon-Nicolet National Forest to start June 17, 2002.
The agency stated that her disability retirement has been cancelled and
noted that leave and earnings will be credited as though she were with
the agency this whole time; within grade increases and pay increases
will be added as appropriate; and sick and annual leave will be credited.
The agency again stated that the restoration of six hours of sick leave
per pay period was in violation of current regulations permitting only
four hours of sick leave per pay period.
In a June 10, 2002 letter, complainant responded to the agency's letter
informing her of the detail to begin on June 17, 2002. Complainant stated
that the agency's proposed assignment was not in compliance with its final
order since the detail did not constitute a full-time permanent position.
Additionally, complainant noted that the agency terminated her disability
payments, leaving her with no health insurance and no income and stated
that although she finds that the detail offered not in compliance with
the AJ's decision, she feels she has no choice but to report to the
detailed position.
The record reveals that thereafter the agency offered complainant a
transfer to Lakewood, Colorado. However, in a November 8, 2002 letter her
medical providers found that it was not in complainant's �best interest
to be uprooted from extended family and friends and be relocated out of
her home area� and �not medically in her best interest to be displaced
from her health care providers, whom she has developed a therapeutic
relationship with.�<1>
Subsequently, in an April 10, 2003 letter, the agency offered complainant
her choice of a position as a Student Records Clerk or an Operations
Support Clerk, both full-time positions at the GS-5 grade level located
at the Blackwell Job Corps Center. The agency provided the two position
descriptions for her physicians' consideration.
In an April 20, 2003 letter, complainant noted that in an April 14, 2003
letter her medical providers opined that the proposed positions are not
acceptable and explained that they �continue to feel that a return to that
environment promotes too great a risk for retraumatization.� Further,
complainant noted that the agency has not reinstated her to a position
equivalent to the position she would have held but for the discrimination
or has not given her front pay until the time she is reinstated; has not
found her a position approved by her doctors as not being adverse to her
interests; has not paid interest on the back pay as ordered; has not
restored sick leave pursuant to the terms of the order; has not given
her an amount representing her share of the agency's contributions to
retirement and life insurance; has not provided a letter to be placed
in her personnel file, verifying the work she performed from November
22, 1999, to August 5, 2000; has not given her a performance appraisal
for the work period of October 1, 1999, and October 1, 2000; has not
conducted training; failed to post the requisite Notice of a Finding
of Discrimination; and failed to pay attorney's fees. Additionally,
complainant states that the agency reduced the money owed to her for
payments back to the retirement system, although the AJ's order stated
that there will be no deductions for disability retirement benefits.
On April 21, 2003, complainant filed the present appeal with the
Commission alleging that the agency failed to comply with its notice of
final order. Complainant alleged that the agency was in non-compliance
since it was deducting disability retirement benefits from the back
pay due to her. Additionally, complainant stated that the agency has
failed to reinstate her to an equivalent position she would have held
but for the discrimination or provide her front pay until such time as
she is reinstated. Complainant notes that in an April 25, 2002 letter,
the agency advised it was reinstating her to a permanent GS-303-5 position
with Blackwell Job Corps Center and detailed her to a GS-303-5 position
on the Chequamegon-Nicolet National Forest for one year. She notes that
her medical care providers did not approve of the proposed assignment as
Operations Clerk at Blackwell nor the detail which would be conditioned
on reassignment at Blackwell. Complainant states that in a June 5, 2002
letter, she was informed that while the agency was seeking a permanent
placement for her outside of Blackwell, she was being detailed to the
GS-303-5 position on the Chequamegon-Nicolet National Forest previously
offered to her and rejected by her physicians effective June 17, 2002.
Complainant stated that because the agency had cancelled her disability
retirement, she had �no choice but to report to the non-approved
assignment.� Complainant notes that subsequently the agency offered
her a position in Colorado and two positions in Blackwell, Wisconsin,
all of which were not approved by her doctors. Thus, complainant argues
that the agency has yet to offer her a full time permanent position as
approved by her medical care providers nor have they initiated front pay.
Complainant also states that the agency has not provided contributions
to retirement and life insurance as ordered by the AJ.
Additionally, complainant notes that in its June 5, 2002 letter, the
agency objected to the restoration of sick leave at the rate of six hours
per pay period after January 18, 2001, as provided in the AJ's order.
Complainant argues that since the agency adopted the AJ's decision,
it cannot thereafter challenge the relief provided.
With regard to the AJ's Order that the agency pay complainant for the
difference in pay for the time worked in the GS-9 position, with interest
and benefits, and the restoration of leave, complainant acknowledges
that several payments have been made but she states that she has not
received an adequate explanation of these benefits.
On appeal, complainant acknowledges that pecuniary relief, compensatory
damages, and attorney's fees have been complied with in accordance with
the AJ's order.
Finally, with regard to Other Relief ordered in the AJ's decision,
complainant states that the agency has failed to comply with the
other personnel actions ordered and the management training specified.
She does state within the past few weeks there has been a posting of
the requisite Posting Notice.
Subsequent to complainant's appeal, the agency issued a final decision
regarding complainant's appeal of non-compliance. The agency stated that
it did not deduct any disability retirement benefits from the money paid
to complainant. Rather, the agency states that the Office of Personnel
Management (OPM) learned of the non-deduction and billed complainant.
The agency states that it cannot supercede OPM's authority on this matter.
Additionally, the agency stated that since the filing of complainant's
brief on appeal, it has placed her in a GS-326-05 permanent position
on the Chequamegon-Nicolet National Forest. The agency states that
complainant will have no interaction with the Blackwell Job Corps Center
in this position, and therefore claims that it complies with the medical
opinions of her doctors. The agency claims that complainant has not
indicated dissatisfaction with her current placement. The agency also
states that complainant has been provided with all benefits and other
appropriate remuneration as required by the AJ's decision.
Finally, the agency states that it has paid complainant for the difference
in pay for the time she worked in the GS-9 position, with interest and
benefits, and has reinstated annual and sick leave as well as agency
contributions to retirement and life insurance.
The record contains a Payroll Action Request dated June 13, 2002,
indicating that complainant is due the gross amount of $53,448.42,
plus interest for the period of August 13, 2000 (PP 17) through June 15,
2002 (PP 11). The explanation on the Payroll Action Request states that
complainant was due $11,513.70 for �PP 17-27, 2000 11 PP's x $1046.70 per
PP = $11,513.70;" �PP 01-26, 2001 26 PP's x $1118.50 per PP =$29,081.00;�
and �PP 01-11, 2002 11 PP's x $1168.52 per PP=$12,853.72" for total
gross due in the amount of $53,448.42.
The record contains two pages of handwritten notes calculating the
total payment due complainant for the period of August 13, 2000, through
June 2002. The notes show that payment was calculated at Grade 5, step
three for the year 2000 totaling $11,513.70, at Grade 5, step four for
the year 2001 totaling $29,081.00 for the year 2001, and in the amount
of $12,853.72 for the year 2002, totaling $53,448.42.
Additionally, the record contains one page of photo-copied handwritten
notes calculating the difference between the GS-9 and GS-5 for the
period of November 22, 1999, through August 5, 2000, and the back pay
due complainant. In calculating the amount due, the agency listed the
salary of a GS-9, step 1 and complainant's corresponding GS-5 salary
for the relevant pay periods and subtracted the difference in pay GS-9
and GS-5 to reach a total of $7,324.40.
The agency provided printouts from its National Finance Center Document
Tracking System indicating payroll action requests were initiated for
payment to complainant in the amount of �net [$]3225.56 interest only on
pay adj for PP17/2000-PP11/2002, ad-343#02;� �net [$]1268.61 pay interest
only on settlement agreement that updated in pp17-20 2 per ad343-02;�
�net [$]13650.24 backpay due to cancellation of disability retirement per
ad343-21;� �net [$]13650.24 pay back pay due to cancellation of disability
retirement per ad3 3-251 split payment;� and �net [$]4563.10 pay adj
due to settlement agreement, ad.343#251." These printouts indicate that
the specified amounts were deposited via electronic fund transfer.
The record contains a Time and Attendance Record for complainant for
pay periods 22 and 23 in 1999, for the periods of October 24 through
November 6 and November 7 through November 20, indicating complainant's
established work week and hours for that period.
The record contains complainant's Statement of Earnings and Leave for
pay period May 5, 2002 - May 18, 2002, listing 80 hours of leave without
pay for the pay period was deducted from complainant.
Additionally, the record contains a June 19, 2003 letter from the Branch
Chief, Resolution Management offering complainant a permanent GS-0326-5
Office Automation Assistant position located on the Chequamegon-Nicolet
National Forest, Supervisor's Office.
The record contains a June 26, 2003 letter from Person A, complainant's
doctor, and Person B, licensed clinical social worker, regarding the
offer of a permanent position for complainant as an Office Automation
Assistant in the Chequamegon-Nicolet National Forest, Supervisor's Office.
Complainant's care providers reviewed the information relative to the
position and stated they had �no objection� to complainant being offered
that assignment as a permanent position.
The record contains an official personnel form indicating that complainant
was permanently reassigned to an Office Automation Assistant position,
GS-0326-5, step 5, effective July 27, 2003.
The record contains a February 3, 2003 letter from the U.S. Office
of Personnel Management (OPM) to the agency certifying complainant's
indebtedness due to an overpayment made to her from the Civil Service
Retirement and Disability Fund in the amount of $13,682.61. OPM states
that it notified complainant of the indebtedness on September 16, 2002,
and her right to enter into a repayment agreement. In collection of this
debt, OPM requested the agency to initiate offset against the federal
benefits it is paying complainant in the amount of $380.00 per month.
The agency provided a copy of a July 15, 2004 letter addressed to
complainant noting that between November 22, 1999, and August 5, 2000,
she was employed at the Counseling Department of the Blackwell Job Corps
Center, in Laona, Wisconsin. The agency noted that during this time
complainant was supervised by the Standards Officer for the center and
assisted him in performing the duties of the Standards Office at the
GS-9 level. The agency noted that a copy of this letter was sent to
complainant's servicing personnel office for inclusion in her Official
Personnel File.
The agency provided an outline dated May 21, 2003, for training entitled
�Reasonable Accommodations Training for the Forest Service, Carter,
Wisconsin,� which it states was conducted at Blackwell Job Corps.
The outline reveals that the training was conducted by Attorney A,
Attorney-Advisor, Civil Rights Division, Office of the General Counsel,
Washington, D.C. The outline and attached copies of slides used
during the presentation reveal that the training covered the statutory
requirement under the Rehabilitation Act, the agency's policies and
procedures for reasonable accommodation in employment, and the requirement
of accommodating qualified individuals with disabilities who suffer from
physical or mental impairments.
ANALYSIS
According to the AJ's decision, the agency was to reinstate complainant
to a GS-5, step 4 position equivalent to the position she would have
held but for the discrimination, or to give her front pay until the
time she is reinstated. The AJ's decision specified that the position
to which complainant would be reinstated would first be approved by
complainant's doctors as not being adverse to her interests. The record
reveals that the agency initially offered to reinstate complainant in
April 2002, to a GS-303-5 Operations Support Clerk at Blackwell and
then detail her for a one-year period as a GS-326-5 Office Automation
Assistant at Chequamegon-Nicolet National Forest. The record indicates
that complainant's health care providers did not approve of this offer
due to the risk of retraumatization. Subsequently, the record reveals
that the agency detailed complainant to the GS-303-5 position previously
offered at Chequamegon-Nicolet National Forest effective June 17, 2002.
Thereafter, in October 2002, the agency offered complainant a transfer
to Lakewood, Colorado which was again rejected by her care providers
as adverse to her interests. In April 2003, the agency then offered
complainant a position as either a Student Records Clerk or an Operations
Support Clerk, both full-time GS-5 grade level positions at Blackwell.
Complainant's health care providers reviewed the offer and stated that
the positions were not acceptable since the �environment promotes too
great a risk for retraumatization.� Finally, in June 2003, the agency
offered complainant a permanent full-time position as a GS-0326-5
Office Automation Assistant in the Chequamegon-Nicolet National
Forest, Supervisor's Office which her health care providers approved.
Upon review, we find that the agency has shown that it complied with
the AJ's Order when it reinstated complainant to the permanent full time
Office Automation Assistant position effective July 27, 2003.
According to the AJ's Order, the agency was to pay complainant the
difference of pay at the GS-9, step 1 level, and the GS-5, step
3 level during the time she worked at the Counseling Department and
appropriate benefits due. The AJ provided that back pay was to be given
with interest. Upon review of the record, we find that the agency has
shown that it paid complainant the appropriate amount of back pay plus
interest and benefits for the time she worked in the GS-9 position.
Specifically, the agency provides its calculations for back pay
indicating the difference between the GS-9 and GS-5 for the period of
November 22, 1999, through August 5, 2000, was $7,324.40. In addition
to providing evidence documenting its back pay calculations, the agency
provided evidence from the National Finance Center that $1,268.61 was
paid in interest on this back pay amount via electronic fund transfer.
We note complainant does not challenge the amount of back pay or interest
calculated for this period.
Additionally, the AJ's Order specified that complainant was to be provided
payment until the time she is reinstated to a position equivalent to
the position she would have held but for the discrimination. The record
indicates that complainant was detailed to a full time GS-303-5 position
effective June 17, 2002, and a permanent full time GS-0326-5 position
effective July 27, 2003. The agency provides documentation showing
its calculations for payment for the period of August 13, 2000, through
June 17, 2002, totaling $53,448.42. Additionally, the agency provides
evidence from the National Finance Center showing that $3,225.56 was paid
in interest on this amount via electronic fund transfer. On appeal,
complainant does not challenge the agency's calculations of payment
or interest for the period of August 13, 2000, through June 17, 2002,
nor does she contend that she was due additional money for the period
of June 17, 2002, the date of her detail, through July 27, 2003, the
date she was given a permanent position.
Upon review of the entire record, we find that the agency has properly
paid complainant from November 22, 1999, through August 5, 2000, and from
August 13, 2000, through June 17, 2002. However, it is not clear from
the record if the agency's payments covered the time period of August 6,
2000, through August 12, 2000. Accordingly, on remand the agency shall
provide evidence indicating whether complainant was paid the appropriate
money due for the period of August 6, 2000, through August 12, 2000.
The AJ's Order also specified that complainant's reinstatement would
include customary contributions to life insurance and retirement
contributions. Complainant claims that the agency failed to comply
with this provision. The agency has provided no evidence addressing
this provision. Accordingly, this issue will be remanded to the agency.
With regard to complainant's claim that the agency improperly deducted
disability retirement benefits from her back pay award, we note that the
record discloses that in February 2003, OPM requested the agency offset
against the benefits it is paying complainant in the amount of $380.00 per
month in satisfaction of her indebtedness due to an overpayment from the
Civil Service Retirement and Disability Fund. Given the direction from
OPM, we find that any dispute complainant has regarding her collection
of said indebtedness be raised with OPM and not the agency.
As specified in the AJ's decision, the agency was also required to
reinstate complainant's annual leave for the time period of November 1 to
November 21, 1999, or to pay her for the leave used during this period,
and, to give her an amount equal to the leave which she would have earned
absent the constructive discharge, consisting of four hours per pay
period until January 18, 2001, the completion of three years of service,
and thereafter six hours per pay period (with 10 hours for the final pay
period each year). Additionally, the agency was to restore complainant's
sick leave that she would have earned absent discrimination.<2> It is
unclear from the record whether the agency reinstated the appropriate
amount of annual and sick leave for the relevant period, or whether
the agency provided complainant an amount equal to the leave which she
would have received. Accordingly, the issue of the agency's compliance
with the restoration of leave will be remanded for further processing
in accordance with the Order listed below.
Additionally, the agency was required to place a letter in complainant's
personnel file, verifying the work she performed from November 22,
1999, to August 5, 2000; and to place in complainant's personnel file, a
performance appraisal for the work period of October 1, 1999, and October
1, 2000. The Commission finds that the agency did prepare a July 15,
2004 letter verifying the work complainant performed from November 22,
1999, through August 5, 2000. However, the record contains no evidence
indicating whether the agency has provided the requisite performance
appraisal. Accordingly, the agency's compliance with this requirement is
remanded for further processing in accordance with the Order listed below.
Finally, the agency was required to provide mandatory training for
all managerial personnel at the job corps where complainant worked.
The specified training was to detail the agency's responsibilities with
respect to the elimination of discrimination because of disability, the
requirements of accommodating qualified individuals with disabilities,
and the prohibition of retaliation against any employee because the
employee participated in protected activity. As evidenced by the outline
dated May 21, 2003, entitled �Reasonable Accommodations Training for
the Forest Service Carter, Wisconsin,� we find the agency has supplied
information showing that the requisite subject matter was covered in
this training. However, we note that the agency failed to provide any
information indicating whether it provided the requisite training for all
managerial personnel at Blackwell Job Corps. Accordingly, the agency's
compliance with the requirement for management training is remanded for
further processing in accordance with the Order listed below.
CONCLUSION
We have found the agency has complied with the AJ's order regarding:
reinstatement to an equivalent position; payment for the period of
November 22, 1999, through August 5, 2000, and from August 13, 2000,
through June 17, 2002; the deduction of disability retirement benefits;
and the requirement that a letter be placed in her personnel file,
verifying the work she performed from November 22, 1999, to August 5,
2000. We VACATE and REMAND to the agency for further processing the
issues of: the agency's life insurance and retirement contributions;
the restoration of sick and annual leave for the relevant period; the
performance appraisal for the period of October 1, 1999, and October 1,
2000; payment for the period of August 6, 2000, through August 12, 2000;
and the specified managerial training.
ORDER
The agency shall take the following actions:
The agency shall provide documentation indicating whether it has paid
complainant the money due to her for the period of August 6, 2000,
through August 12, 2000, in accordance with the AJ's decision.
The agency shall provide evidence indicating whether it has provided
contributions to complainant's retirement benefits and life insurance
as specified under the AJ's decision.
The agency shall provide evidence indicating whether it has restored
complainant's annual leave for the time period of November 1 to November
21, 1999, and whether it has given complainant an amount equal to the
leave she would have earned thereafter, which would have been four hours
per pay period for sick leave and four hours per pay period for annual
leave until January 18, 2001, and which would have been six hours per
pay period from then on for annual leave, with ten hours for the final
pay period of the year.
The agency shall provide evidence showing whether it provided complainant,
and placed in her personnel file, the performance appraisal for the
period of October 1, 1999, and October 1, 2000.
The agency shall provide evidence indicating whether it provided the
managerial personnel training at Blackwell Job Corps in accordance
with the AJ's decision. Specifically, the agency shall provide sign-in
sheets for the requisite training or other evidence indicating that all
managerial personnel attended the training.
Within 30 days of the date this decision becomes final, the agency shall
issue a decision on the agency's compliance with the corrective actions
specified in the AJ's decision which are noted in the instant Order.
A copy of the decision must be submitted to the Compliance Officer,
as referenced herein.
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 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 (T0900)
This decision affirms the agency's final decision/action in part, but it
also requires the agency to continue its administrative processing of a
portion of your complaint. 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 on both that portion
of your complaint which the Commission has affirmed and that portion
of the complaint which has been remanded for continued administrative
processing. 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 your appeal with the Commission, until
such time as the agency issues its final decision on your complaint.
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
January 26, 2005
__________________
Date
1Although this letter is dated November 8,
2001, we note that it refers to the agency's October 30, 2002 letter
from the agency offering complainant a transfer to Lakewood, Colorado.
Thus, we find the letter contained a typographical error and should have
been properly dated November 8, 2002.
2While we note that the AJ's decision states that following January 18,
2001, the completion of three years of service, complainant was to be
reimbursed for sick leave at six hours per pay period (and 10 hours in the
final pay period), we find this to be an inadvertent error. Specifically,
we note that unlike the provisions on annual leave, which specify that
an employee with less than three years of federal service accrues four
hours of annual leave per pay period while an employee with three but less
than fifteen years of service accrues six hours of annual leave per pay
period, the regulations governing sick leave provide that an employee is
entitled to sick leave with pay which accrues on the basis of four hours
per pay period, without different standards based on years of service.
5 U.S.C. � � 6303 (a); 6307(a).