04A00026
04-11-2002
Fouaimalo T. Tuala, Petitioner, v. Gordon R. England, Secretary, Department of the Navy, Agency.
Fouaimalo T. Tuala v. Department of the Navy
04A00026
04-11-02
.
Fouaimalo T. Tuala,
Petitioner,
v.
Gordon R. England,
Secretary,
Department of the Navy,
Agency.
Petition No. 04A00026
Appeal No. 01976694
Agency No. 95-60258-042
DECISION ON PETITION FOR ENFORCEMENT
Fouaimalo T. Tuala (hereinafter referred to as petitioner) filed
a petition with the Equal Employment Opportunity Commission for
enforcement of the Order set forth in Fouaimalo T. Tuala v. Richard
J. Danzig, Secretary, Department of the Navy, EEOC Appeal No. 01976694
(July 24, 2000). Pursuant to that Order, the Commission directed the
Department of the Navy (hereinafter referred to as the agency) to redress
petitioner following a finding that agency officials had discriminated
against petitioner on the bases of race (Asian/Pacific Islander) and
national origin (Samoan) in violation of Title VII of the Civil Rights
Act of 1964, as amended, 42 U.S.C. �2000e et seq. This petition for
enforcement is accepted by the Commission pursuant to 29 C.F.R. �1614.503.
The issue presented by this petition is whether the agency has complied
with the Commission's Order in EEOC Appeal No. 01976694. In that
decision, the Commission found that the agency discriminated against
petitioner on the bases race (Asian/Pacific Islander) and national origin
(Samoan) when she was not selected for the position of EEO Specialist,
GS-9 (target 11) in 1995. To remedy the discrimination, the Commission
directed the agency to take certain actions. In her filings, petitioner
contended that she was not placed in a substantially equivalent position
compared to those incumbent to the EEO Specialist, GS-11, position
in 1996. As stated below, we find that the agency has complied with
our Order, in part, and failed to comply, in part.
ORDER, Paragraphs (B)-(F), Posting Order, and Attorney's Fees Order
Initially we address the agency's compliance with Paragraphs (B)-(F), (1)
the posting order, and (2) the attorney's fees order. The Commission's
Order directed the agency to take the following remedial actions: (B) pay
back pay; (C) consider petitioner's claim for compensatory damages; (D)
conduct a desk audit; (E) provide training for the supervisors identified
in the decision; and (F) submit a report of compliance. In addition, the
agency was ordered to (1) post a notice of compliance; and (2) provide
attorney's fees, if any.<1> The Commission has received compliance
reports from the agency dated January 31, 2001, and May 14, 2001.
(B) The agency reported that petitioner was awarded back pay of
$23,909.50, plus interest, from which appropriate legal deductions
were taken.
(C) The agency addressed petitioner on September 27, 2000, requesting
submission of her claim for compensatory damages. The agency's letter
explained the types of such damages and the evidence required in support.
After receipt of petitioner's request for compensatory damages, the agency
issued a final decision on petitioner's claim for compensatory damages on
April 12, 2001. Petitioner has filed an appeal from that decision, and
it is presently pending before the Commission as EEOC Appeal No. 01A13645.
(D) The agency stated that petitioner's revised promotion date was
previous to her initial request for a desk audit, and this matter
became moot.
(E) The agency has shown that the two supervisors identified in the
decision have taken EEO-related courses.
(F) The agency has submitted two compliance reports to the Compliance
Officer, as stated, above.
(1) Because the Long Beach Naval Shipyard (LBNS) closed in 1996, no
posting was accomplished.
(2) The agency stated that petitioner has not requested attorney's fees,
and she has not indicated that she was represented by an attorney.
Petitioner has not challenged or complained of the agency's actions
with regard to the above provisions. After a review of the documents
submitted by the agency and based on the entire record in this matter,
we find that the agency has complied with Paragraphs (B)-(F), the Posting
Order, and the Attorney's Fees Order.
ORDER, Paragraph (A)
At Paragraph (A), the agency was directed to comply with the following
provision:
The agency shall place [petitioner] in the position of EEO Specialist,
GS-9, at the Long Beach Naval Shipyard retroactive to the date on which
the selectee was chosen for the position. This placement should include
all within-grade and career ladder promotions attached to the position.
Upon a finding of discrimination, the Commission attempts to fashion
a remedy that both eliminates the unlawful employment practice(s) but
also makes petitioner whole, that is, puts him/her in the position s/he
would have occupied were it not for the unlawful discrimination.<2>
Albemarle Paper Co. v. Moody, 422 U.S. 405, 418-419 (1975) (remedial
action is intended to make a person whole by placing him/her �as near as
may be in the situation he would have occupied if the wrong had not been
committed�). The Commission recognizes that in, some instances and for
non-discriminatory reasons, a person cannot be placed in the position to
which s/he is entitled, and the Commission's remedies must be applied to
a markedly different employment situation. Spicer v. Department of the
Interior, EEOC Petition No. 04980007 (September 24, 1998). Nevertheless,
it is the agency's burden to explain the reasons why it cannot comply and
to establish that the party was placed in a substantially equivalent
position. Id., Shaw v. Department of the Air Force, EEOC Request
No. 05930370 (July 15, 1994).
With regard to the instance matter, unbeknownst to the Commission when
it issued the prior decision, the LBNS had closed during the year 1996.
At that time, employees were placed in a Priority Placement Program (PPP)
and picked up by other agency facilities as positions opened. In October
1996, petitioner accepted a position at the agency's facility at China
Lake, and, as of October 2000, she was employed as a Senior Office
Manager, DG-303-3, entitled to "pay retention" at GS-11. According to
the reconstructed SF-50 forms submitted by the agency, petitioner was
retroactively placed in the position of EEO Specialist, GS-9, as of July
23, 1995, was awarded promotion to GS-11 in August 1996, and received
annual pay raises, awards, and within-grade increases thereafter; thus,
when LBNS closed, petitioner �held� the position of EEO Specialist, GS-11.
While the agency has provided forms showing petitioner's remedial
promotions, nevertheless, several matters remain unclear. First, we
note that the salary actually paid to petitioner does not appear to be
equivalent to the GS-11/Step 1 rate of pay since at least 1997, and the
record does not contain any explanation for this seeming disparity.
Also, the SF-50s for petitioner do not show increases in annual pay,
although there is an indication that she received within-grade increases.
In addition, the Commission is confused about any difference between
"entitled to pay retention," as stated on the SF-50 forms, and "save
pay," the phrase used in the agency report. Finally, the Commission is
unclear about the designation, pay plan, and benefits for "DG" employees,
and the difference from the GS schedule.
Finally, based on her current placement, the Commission is not persuaded
that petitioner was placed in the position she would have had but for
the agency's discrimination. According to the SF-50s, petitioner was
employed at LBNS when she received the promotion to EEO Specialist,
GS-11; however, because in actuality she was a GS-7 EEO Assistant when
LBNS closed, she was afforded rights on the PPP list at that lower level
rather than at the GS-11 level. Consequently, she may not be in the
situation she would have been but for discrimination, and we find nothing
in the record to indicate that the agency adjusted her PPP placement based
on her retroactive promotion to GS-11 or in any way acted to fully comply
with our Order. To be made whole, petitioner is entitled, at a minimum,
to be in the same position as the actual selectee for Vacancy Announcement
No. 95-BJR-027 and those incumbent to the GS-11 and GS-9 positions at
LBNS at the time of closing, with regard to both job assignment and pay.
For these reasons, we find that the agency has not complied with
Paragraph (A) of the Order to place petitioner in the position at issue.
A substantially equivalent position is one that is similar in duties,
responsibilities, and location to the original position. Patterson
v. Department of Agriculture, EEOC Requestion No. 05930370 (July 15,
1994). There is no indication in the record that petitioner's current
position is, in any way, similar to the EEO Specialist position.
To reconstruct petitioner's rightful placement due to the closing at
LBNS, it is necessary to know the PPP status and job history of all
GS-9 and GS-11 EEO Specialists at LBNS from 1996 through the present.
Upon examining this information and other information, the agency may
assess whether petitioner has been placed in a substantially equivalent
position.
CONCLUSION
Based upon a review of the record herein, the submissions of the parties,
and for the foregoing reasons, the Commission finds that the agency has
complied with Paragraphs (B)-(F), the posting, and attorney's fees orders,
but has failed to comply with Paragraph (A) of the Order set forth in
EEOC Appeal No. 01976694 (July 24, 2000). The agency is directed to
comply with our Order, below.
ORDER
Within sixty (60) calendar days of the date of this decision, the agency
is directed to conduct a supplemental investigation to address the issues
in this decision and to take the following actions:
I. The agency must explain the disparity in petitioner's pay and her
employment as a DG-303-3 employee compared with her status as an EEO
Specialist, GS-11.
II. Given that LBNS has closed, the agency must determine whether
petitioner is employed in a substantially equivalent position to the
original position. The agency shall further analyze the placement of
the EEO specialists working at LBNS at the time of its closing. If the
agency finds that petitioner is not in a substantially equal position
to the original position, it shall place her in a substantially equal
position and provide back pay and associated benefits.
III. The agency shall provide a report, including all records and
supporting information used in its deliberative process, to petitioner
and the EEOC Compliance Officer of its findings and determination as to
petitioner's proper placement and rate of pay as compared to the selectee
in Vacancy Announcement No. 95-BJR-027 and those incumbent to the EEO
Specialist position at LBNS at its closure in 1996. Particularly, the
agency shall provide PPP listing and placement information for these
employees as well as their present status and rate of pay.
ATTORNEY'S FEES (H0900)
If petitioner 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 PETITIONER'S RIGHTS ON PETITION FOR ENFORCEMENT
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
___04-11-02_______________
Date
1Petitioner requested appointment of an attorney, referring to the
paragraph "Right to Request Counsel (Z1199)" in the previous decision.
Petitioner misreads this statement, as it is the Court whom she petitions
for appointment of counsel should she elect to file a civil action.
2See also 29 C.F.R. �1614.501(a), citing the Commission's Policy Statement
on Remedies and Relief for Individual Cases of Unlawful Discrimination.