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.