Francis M. Dorsey, Complainant,v.Paul H. O'Neill, Secretary, Department of the Treasury, Agency.

Equal Employment Opportunity CommissionSep 10, 2002
07A00017 (E.E.O.C. Sep. 10, 2002)

07A00017

09-10-2002

Francis M. Dorsey, Complainant, v. Paul H. O'Neill, Secretary, Department of the Treasury, Agency.


Francis M. Dorsey v. Department of the Treasury

07A00017

September 10, 2002

.

Francis M. Dorsey,

Complainant,

v.

Paul H. O'Neill,

Secretary,

Department of the Treasury,

Agency.

Appeal No. 07A00017

Agency No. 97-1171

DISMISSAL OF APPEAL

By Notice of Appeal postmarked January 29, 2000, the agency filed an

appeal with this Commission from the October 25, 1999 decision of

the Administrative Judge (AJ) for Recommended Relief on the issue

of compensatory damages and from the AJ's decision on the issue of

discrimination dated September 14, 1998. The AJ found that the agency

had discriminated against the complainant based on a disability and

ordered relief separate from her decision granting compensatory damages.

The agency issued a final decision dated January 3, 2000 declining to

implement the AJ's finding of discrimination. The agency's appeal of

that decision addressed in its January 29, 2000 submission, is untimely

and is hereby dismissed.

The agency stated in its brief that it received the AJ's decision

(dated October 25, 1999) on November 4, 1999 (Brief p. 2). In such

circumstances, the Commission's Interim Guidance (dated October 15, 1999,

(Guidance)) applies where the time for the issuance of the agency's final

action began to run before the effective date of our new regulations.

Under this Guidance, the agency has 60 days to take final action.<1>

Accordingly, the agency's final decision along with its Notice of Appeal

was due to be filed no later than January 4, 2000. Although the agency

claims it filed its appeal on January 3, 2000, it submitted no evidence

to support its claim. Therefore, based on the agency's own statement

of the date of its receipt of the AJ's Decision and the record before us

indicating the agency's appeal was filed on January 29, 2000, we conclude

that the agency's appeal is untimely filed and it is hereby DISMISSED. See

29 C.F.R. 1614.402(b). The Findings and Conclusions, dated September 14,

1998, and Recommended Relief, dated October 25, 1999, set forth by the

administrative judge are hereby adopted as the Order of this Commission.

ORDER

1. The Agency shall identify vacant positions for which Complainant is

qualified within the commuting area and serviced by the same appointing

authority and at the same grade or level as Complainant's current

position<2>, and offer placement in such positions to Complainant.

2. Complainant shall be awarded backpay, with interest, computed in

the manner prescribed by 5 C.F.R. �550.805, and any other benefits of

employment, from the date he was placed in a leave without pay status

until the date he is placed in the position or declines the Agency's

offer.

3. The Agency shall award the Complainant attorney's fees and costs for

representation related to its failure to provide reasonable accommodation.

Complainant's attorney shall submit a verified statement to the Agency

as prescribed by 29 C.F.R.� 1614.501(e)(2).

4. To the extent it has not already done so, the Agency shall pay

Complainant compensatory damages for any pecuniary and non-pecuniary

losses for its failure to provide reasonable accommodation as determined

by the Administrative Judge in her October 25, 1999 Recommended Relief.

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.

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.

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

September 10, 2002

__________________

Date

CERTIFICATE OF MAILING

For timeliness purposes, the Commission will presume that this decision

was received within five (5) calendar days after it was mailed. I certify

that this decision was mailed to complainant, complainant's representative

(if applicable), and the agency on:

__________________

Date

______________________________

1The Commission's Guidance stated in pertinent part, �For all such cases,

the responding agency shall have the remainder of the 60 days from its

receipt of the decision to take final action by issuing an order notifying

the complainant whether or not the agency will fully implement the AJ's

decision.� Guidance at p. 4. The AJ's decision also contained notice

of these time requirements.

2The Commission modifies the AJ's Order to be consistent with 29

C.F.R. �1614.203(g), in effect at the time of the AJ's decision. While

we decline to address the agency's untimely appeal on the merits of this

matter, we note that if we had done so, the agency's liability would

have been assessed under �1614.203(g).

However, the agency is advised that 29 C.F.R. � 1614.203(g), which

governed and limited the obligation of reassignment in the Federal sector,

has been superseded and no longer applies. 67 Fed. Reg. 35732 (5/21/02),

to be codified as 29 C.F.R. � 1614.203(b). The ADA standards apply to all

conduct on or after June 20, 2002, and emphasize, among other things, a

broader search for a vacancy. The ADA regulations regarding reassignment

can be found at 29 C.F.R. �� 1630.2(o) and 1630.9. Additional information

can be found in the Appendix to the ADA regulations and in the EEOC's

Enforcement Guidance on Reasonable Accommodation and Undue Hardship Under

the Americans with Disabilities Act (March 1, 1999) at Questions 25-30.

These documents are available on the EEOC's website at www.eeoc.gov.