07A00037
05-15-2003
Edward Dwyer, Complainant, v. John Ashcroft, Attorney General, Department of Justice, Agency.
Edward Dwyer v. Department of Justice
07A00037
May 15, 2003
.
Edward Dwyer,
Complainant,
v.
John Ashcroft,
Attorney General,
Department of Justice,
Agency.
Appeal No. 07A00037
Agency No. P-97-9143
Hearing No. 280-98-4217X
DECISION
Following its June 21, 2000 final order, the agency filed a timely
appeal which the Commission accepts pursuant to 29 C.F.R. � 1614.405.
On appeal, the agency requests that the Commission affirm its partial
rejection of the relief awarded by an EEOC Administrative Judge's (AJ)
pursuant to the AJ's finding that the agency discriminated against
complainant on the basis of his disability. For the following reasons,
the Commission MODIFIES the agency's final order.
Complainant, a Correctional Counselor employed by the agency at the United
States Penitentiary in Marion, Illinois, filed a formal EEO complaint with
the agency on May 21, 1997, alleging that the agency had discriminated
against him on the basis of disability (Reflex Sympathetic Dystrophy)
when he was denied reasonable accommodation for his condition and was
treated differently than similarly situated employees.
Following the investigation of the complaint, a hearing was held before
an EEOC Administrative Judge (AJ). The AJ found that although the agency
initially attempted to provide complainant with reasonable accommodation
for his disability, it subsequently failed to address problems experienced
by complainant in his work assignment and so, in fact, failed to afford
him reasonable accommodation. The AJ ordered relief as follows: a
posted notice of the finding of discrimination; mandatory training �for
all employees of the [a]gency� on the Rehabilitation Act; reinstatement
of complainant, contingent upon a fitness for duty examination, to a
Correctional Counselor position in a location that complies with his
medical restrictions, or other available vacant position; back pay and
benefits from the date of complainant's second (on-the-job) injury until
the date of reinstatement, including payment for 291.5 hours of sick
leave; compensatory damages in the amount of $2900; and attorney's fees
and costs, to be determined.
On June 21, 2000, the agency issued a final order stating that it would
not fully implement the AJ's decision. In an attached memorandum,
the agency accepted the AJ's finding of disability discrimination,
but objected to certain elements of the relief awarded. The agency
noted that complainant had not been removed from employment, but was
out on workers' compensation. The agency stated that complainant was
in receipt of workers' compensation benefits, and that the award of
back pay therefore was inappropriate. Regarding restoration of sick
leave, the agency noted that complainant had used and been paid for
sick leave, and that if and when complainant returned to duty, it would
restore his sick leave balance. The agency further stated that it did
not believe complainant had been given a full and fair opportunity to
submit evidence bearing on compensatory damages, and indicated that
it would allow complainant the opportunity to demonstrate that he was
entitled to a greater amount of compensatory damages than was awarded
by the AJ. The agency also stated that it would pay complainant's
reasonable attorney's fees and costs, but did not address the notice of
discrimination or the EEO training.
The agency timely filed an appeal with the Commission in connection with
its determination that it would not fully implement the AJ's decision.
Complainant does not contest the agency's appeal, but argues that the
agency has failed to return him to duty in accordance with the AJ's
decision. Complainant noted that he underwent a fitness-for-duty
examination which resulted in the imposition of the same physical
restriction under which he had been working previously. Complainant
stated that, nonetheless, the Warden of the facility has failed to return
him to duty, and has not responded to his further inquiries.<1>
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by
an AJ will be upheld if supported by substantial evidence in the record.
Substantial evidence is defined as �such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.� Universal
Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951)
(citation omitted). A finding regarding whether or not discriminatory
intent existed is a factual finding. See Pullman-Standard Co. v. Swint,
456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a
de novo standard of review, whether or not a hearing was held.
Once discrimination is found, a complainant is entitled to �make whole�
relief, that is, a remedy which places him as nearly as possible in the
position he would have occupied but for the unlawful discrimination.
See Albemarle Paper Co. v. Moody, 422 U.S. 405, 418-419 (1975).
The Commission finds that in this case, the relief awarded by the AJ
either exceeded the �make whole� standard, or is otherwise inappropriate
under the facts of the case.
Reinstatement
The record reflects that complainant has been in receipt of workers'
compensation benefits while out of work on account of an on-the-job injury
occasioned by the agency's failure to provide reasonable accommodation.
Because complainant is still an employee of the agency, reinstatement is
not an appropriate remedy. However, it appears that what the AJ intended
was for the agency to return complainant to duty, with any necessary
reasonable accommodation. According to complainant, he has undergone
the requisite fitness-for-duty examination, and is subject to the same
limitations previously made known to the agency, but still has not been
returned to work.<2> The Commission therefore will order the agency to
return complainant to duty, with such reasonable accommodation as may
be required, in a location that complies with his medical restrictions
or other vacant position available at the agency.
Back Pay
The agency correctly notes that workers' compensation benefits for lost
wages may be off-set against an award of back pay. Therefore, while
complainant is entitled to back pay for the period of time he has been
off duty on account of the agency's unlawful discrimination, the agency
may deduct the wage-loss benefits complainant has received pursuant to
his workers' compensation claim. See, e.g., Finlay v. United States
Postal Service, EEOC Appeal No. 01942985 (April 29, 1997).
Sick Leave
Because of the agency's failure to accommodate complainant's disability,
complainant was required to use 291.5 hours of sick leave. Although the
agency correctly notes that complainant is not entitled to be repaid
for the sick leave he used<3>, he is entitled to have his sick leave
balance restored, regardless of whether he returns to duty. Therefore,
to the extent that complainant's sick leave balance has not been restored
pursuant to workers' compensation procedures, the agency must restore
up to 291.5 hours of sick leave.
Compensatory Damages
The AJ awarded complainant compensatory damages in the amount of $2900.
The agency does not disagree that complainant is entitled to at least
that amount, but states that it would allow complainant the opportunity
to submit further evidence of entitlement to a greater amount.
The Commission therefore will order the agency to tender the $2900 in
damages, pending its determination whether complainant is entitled to
a greater amount.
Attorney's Fees and Costs
The agency acknowledges that its is obligated to pay complainant's
reasonable attorney's fees and costs, subject to complainant's submission
of the necessary supporting documentation. The amount of fees and costs
payable is not before the Commission at this time.
Preventive Action
The AJ ordered the agency to commit to preventive action to ensure that
the unlawful discrimination would be unlikely to recur. As an example,
the AJ directed that the agency should provide training relevant to
the Rehabilitation Act to �all employees.� The Commission finds this
portion of the AJ's order to be somewhat over-broad, as it might be said
to encompass all employees of the Department of Justice, with no showing
that disability discrimination is a department-wide problem. Rather,
the Commission will modify this provision to require mandatory training
on the Rehabilitation Act for all supervisory and managerial employees
of the Marion, Illinois Penitentiary. The Commission will also order
the agency to consider disciplinary action against the agency officials
responsible for the discriminatory actions in this case.
Notice of Discrimination
The agency did not addressed the posted notice of the finding of
discrimination. The Commission will order the agency to post the notice,
if it has not already done so.
CONCLUSION
Therefore, after a careful review of the record, including arguments
and evidence not specifically discussed in this decision, the Commission
MODIFIES the agency's final order and remands the matter to the agency
to take corrective action in accordance with this decision and the
Order below.
ORDER (D0900)
The agency is ORDERED to take the following remedial action:
The agency shall return complainant to duty as a Correctional Counselor,
or a substantially equivalent position, in a location that complies with
his medical restrictions at its Marion, Illinois Penitentiary, with any
necessary reasonable accommodation. The agency may solicit current
information from complainant regarding his present fitness for duty,
including medical limitations, in order to provide such accommodation.
The agency shall afford complainant up to thirty (30) days to submit
such information. Complainant shall cooperate by providing such
information as the agency may require.
The agency shall tender back pay and benefits, as set forth in the
paragraphs below, from the date on which complainant stopped work in
August 1999 until the date complainant returns to duty pursuant to
paragraph 1, supra, or declines an offer to return to duty. The agency
shall offset the amount of back pay awarded by any workers' compensation
wage-replacement benefits received by complainant during the same period.
The agency shall restore complainant's sick leave balance, up to
291.5 hours. The agency shall offset any part of this balance which
previously has been restored through the workers' compensation program.
If it has not already done so, the agency shall immediately tender to
complainant compensatory damages in the amount of $2900.
The agency shall determine complainant's entitlement to additional
compensatory damages. The agency shall request complainant to
submit additional evidence in support of his claim, and shall afford
complainant up to forty-five(45) days from receipt of its request to
submit such additional evidence. Within thirty (30) days of receipt
of complainant's evidence, the agency shall determine the amount of
damages payable and shall tender payment to complainant, less the $2900
already paid pursuant to paragraph 4, supra.
The agency shall provide mandatory training on rights and obligations
under the Rehabilitation Act to all supervisory and managerial personnel
at its Marion, Illinois Penitentiary.
The agency shall consider taking disciplinary action against the
officials identified as being responsible for the discriminatory
treatment perpetrated against complainant. The agency shall report
its decision. If the agency decides to take disciplinary action, it
shall identify the action taken. If the agency decides not to take
disciplinary action, it shall set forth the reason(s) for its decision
not to impose discipline.
The agency shall pay complainant's attorney's fees and costs, consistent
with the paragraph below entitled, �Attorney's Fees.�
If it has not already done so, the agency shall post a notice of the
finding of discrimination, in accordance with the paragraph below
entitled, �Posting Order.�
The agency shall determine the appropriate amount of back pay (with
interest, if applicable) and other benefits due complainant, pursuant
to 29 C.F.R. � 1614.501, no later than sixty (60) calendar days after
the date this decision becomes final. The complainant 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 complainant for the
undisputed amount within sixty (60) calendar days of the date the
agency determines the amount it believes to be due. The complainant
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.�
The agency is further directed to submit a report of compliance, as
provided in the statement entitled �Implementation of the Commission's
Decision.� 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.
POSTING ORDER (G0900)
The agency is ordered to post at its Marion, Illinois Penitentiary copies
of the attached notice. Copies of the notice, after being signed by the
agency's duly authorized representative, shall be posted by the agency
within thirty (30) calendar days of the date this decision becomes final,
and shall remain posted for sixty (60) consecutive days, in conspicuous
places, including all places where notices to employees are customarily
posted. The agency shall take reasonable steps to ensure that said
notices are not altered, defaced, or covered by any other material.
The original signed notice is to be submitted to the Compliance Officer
at the address cited in the paragraph entitled �Implementation of the
Commission's Decision,� within ten (10) calendar days of the expiration
of the posting period.
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.
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 (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
May 15, 2003
__________________
Date
This Notice is posted pursuant to an Order by the United States Equal
Employment Opportunity Commission dated which found that a
violation of the Rehabilitation Act of 1973, as amended, 29 U.S.C. �791
et seq. has occurred at this facility.
Federal law requires that there be no discrimination against any
employee or applicant for employment because of that person's RACE,
COLOR, RELIGION, SEX, NATIONAL ORIGIN, AGE, or PHYSICAL or MENTAL
DISABILITY with respect to hiring, firing, promotion, compensation,
or other terms, conditions, or privileges of employment.
The United States Department of Justice, Bureau of Prisons supports
and will comply with such Federal law and will not take action against
individuals because they have exercised their rights under law.
The United States Department of Justice, Bureau of Prisons has been
found to have discriminated against the individual affected by the
Commission's finding. The United States Department of Justice, Bureau
of Prisons shall return the affected individual to duty with back pay
and benefits; pay compensatory damages; and pay attorney's fees and
costs. The United States Department of Justice, Bureau of Prisons
will ensure that officials responsible for personnel decisions and
terms and conditions of employment will abide by the requirements of
all Federal equal employment opportunity laws and will not retaliate
against employees who file EEO complaints.
The United States Department of Justice, Bureau of Prisons will not
in any manner restrain, interfere, coerce, or retaliate against any
individual who exercises his or her right to oppose practices made
unlawful by, or who participates in proceedings pursuant to, Federal
equal employment opportunity law.
_________________________
Date Posted: ____________________
Posting Expires: _________________
29 C.F.R. Part 1614
1Although complainant references a settlement, there is no evidence
of record that a settlement agreement was entered into in this case.
Rather, complainant appears to refer to the order of the AJ directing
the agency to reinstate him.
2The record does not contain documentation regarding a fitness-for-duty
examination subsequent to the AJ's decision.
3It is noted that, in the Federal employment system, accrued sick leave
has no cash value, but an employee's sick leave balance may impact terms
and conditions of employment in other ways; for example, with respect
to pension calculations.