01A14683
09-27-2002
Jeannine E. Busskohl, Complainant, v. Gordon R. England, Secretary, Department of the Navy, Agency.
Jeannine E. Busskohl v. Department of the Navy
01A14683
September 27, 2002
.
Jeannine E. Busskohl,
Complainant,
v.
Gordon R. England,
Secretary,
Department of the Navy,
Agency.
Appeal No. 01A14683
Agency No. 96-60042-002
Hearing No. 240-97-3792X
DECISION
The record indicates that on or around November 29, 1995, complainant,
a Personnel Assistant and Payroll Clerk, Administrative Section, Morale,
Welfare, and Recreation Department, at the agency's Naval Air Facility
in El Centro, California, filed a formal EEO complaint. therein, she
alleged that she was discriminated against on the basis of age (55 at the
relevant time) and subjected to retaliation for prior EEO activity when:
(1) she was terminated on July 25, 1995 and (2) she was denied training in
May 1995. After the investigation was completed, complainant requested
a hearing before an EEOC Administrative Judge (AJ). After a hearing,
the AJ concluded that complainant was subjected to age discrimination
when she was terminated. On February 1, 2001, the agency issued its
notice of final action agreeing to implement the AJ's decision in full.
By correspondence received on July 26, 2001, complainant filed the
instance appeal, pursuant to 29 C.F.R.� 1614.504, alleging that the
agency failed to comply with its final action.
EEOC regulation 29 C.F.R. � 1614.504 provides that a final action that
has not been the subject of an appeal to the Commission or a civil action
is binding on the agency, and that if a complainant believes the agency
has failed to comply with the terms thereof, she shall notify the agency
within 30 days of learning of the alleged noncompliance. If, after 35
days from the agency's receipt of complainant's written allegations of
noncompliance, the complainant is not satisfied with the agency's attempt
to resolve the matter, the complainant may appeal to the Commission for
a determination as to whether the agency has complied with the terms of
the final decision. See 29 C.F.R. � 1614.504(b).
In the case at hand, it is unclear from the record whether complainant
notified the agency of the alleged noncompliance prior to filing her
appeal. However, there is also no indication that complainant was
ever made aware of this requirement, as the agency's final action merely
indicates that complainant may file an appeal with this Commission if she
is dissatisfied. The Commission therefore will exercise its discretion
and consider the matter.
Complainant contends that the agency did not fully comply with the terms
of its final action, in particular noting that she was not awarded the
appropriate amount of retirement benefits, despite the fact that the
final action ordered that she be provided all benefits to which she
would have been entitled had she not been terminated. As we are unable
to determine from the information provided whether the agency complied
with its final action, the complaint is hereby REMANDED to the agency
for further action in accordance with the following order.
ORDER
To the extent that it has not already done so, the agency is ordered to
take the following remedial actions:
Within thirty (30) calendar days of the date this decision becomes
final, the agency shall offer to place complainant in the position she
would have occupied if she had not been terminated, or a substantially
equivalent position. Complainant shall be given a minimum of fifteen
(15) days from the date of her receipt of the offer within which to
accept or decline the offer.
The agency shall determine the appropriate amount of back pay (with
interest, if applicable) and other benefits, including retirement
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 shall pay front pay, provided that there is not another
equivalent position currently available. Front pay shall be paid until
such time and date that such a position becomes available, including
any pay increases, bonuses, and other benefits complainant would have
received had there been an equivalent position available immediately.<1>
Within thirty (30) calendar days of the date this decision becomes final,
the agency shall pursue corrective action including, but not limited
to, providing EEO training to the management officials responsible for
terminating complainant. The agency shall also ensure that no retaliatory
action is taken against complainant for filing this EEO complaint.
Within thirty (30) calendar days of the date this decision becomes final,
the agency shall review its discharge practices and take whatever steps
deemed appropriate to prevent the recurrence of discriminatory treatment
during this process.
The agency shall post the attached notice, as described below.
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.
INTERIM RELIEF (F0900)
When the agency requests reconsideration and the case involves a
finding of discrimination regarding a removal, separation, or suspension
continuing beyond the date of the request for reconsideration, and when
the decision orders retroactive restoration, the agency shall comply with
the decision to the extent of the temporary or conditional restoration
of the complainant to duty status in the position specified by the
Commission, pending the outcome of the agency request for reconsideration.
See 29 C.F.R. � 1614.502(b).
The agency shall notify the Commission and the complainant in writing at
the same time it requests reconsideration that the relief it provides
is temporary or conditional and, if applicable, that it will delay
the payment of any amounts owed but will pay interest from the date
of the original appellate decision until payment is made. Failure of
the agency to provide notification will result in the dismissal of the
agency's request. See 29 C.F.R. � 1614.502(b)(3).
POSTING ORDER (G0900)
The agency is ordered to post at its El Centro, California facility
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.
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
September 27, 2002
Date
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
An Agency of the United States Government
This Notice is posted pursuant to an Order by the United States Equal
Employment Opportunity Commission dated which found
that a violation of Section 501 of the Rehabilitation Act of 1973
(Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq., has occurred
at the Department of Navy, Naval Air Facility, in El Centro, California
(facility).
Federal law requires that there be no discrimination against any
employee or applicant for employment because of the person's RACE,
COLOR, RELIGION, SEX, NATIONAL ORIGIN, AGE, or DISABILITY with respect
to hiring, firing, promotion, compensation, or other terms, conditions
or privileges of employment.
The facility supports and will comply with such federal law and will
not take action against individuals because they have exercised their
rights under law.
The facility was found to have discriminated against an employee based
on her age when it terminated her. The facility was ordered to: (1)
offer to place complainant in the position she would have held had she
not been terminated, or a substantially equivalent position; (2)determine
the appropriate amount of back pay and other benefits owed complainant;
(3) pay complainant front pay, if no position is currently available;
(4) provide EEO training for supervisors and managers at the facility;
(5) review its discharge practices and take whatever steps deemed
appropriate to prevent the recurrence of discriminatory treatment during
this process; and (6) post this notice.
The facility 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 16141 Commission precedent holds that an award of front
pay is appropriate in certain circumstances. If nondiscriminatory
placement, such as reinstatement to a previously held position or a
substantially equivalent position, is not possible, then the agency must
make whole the employee through front pay until such nondiscriminatory
placement can be accomplished. See York v. Department of the Navy,
EEOC Appeal No. 01930435 (February 25, 1994).