01A01826
09-05-2002
Larry Young, Complainant, v. Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.
Larry Young v. Department of Veterans Affairs
01A01826
September 5, 2002
.
Larry Young,
Complainant,
v.
Anthony J. Principi,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01A01826
Agency No. 99-1624
DECISION
On December 27, 1999, complainant appealed the Commission regarding the
agency's December 3, 1999 determination as to his entitlement to back
pay. The Commission notified the agency of the appeal. In response,
the agency provided the Commission with a copy of the complaint file
and noted that the agency believed that their decision should be affirmed.
Complainant filed a formal complaint alleging that the agency
discriminated against him on the basis of his race and disability when
he was terminated from his Housekeeping Aide position on June 9, 1998.
The agency investigated the complaint. Complainant was notified of
his right to request a hearing before an EEOC Administrative Judge or
an immediate final decision. When complainant failed to respond to the
notification, the agency issued its final decision on September 27, 1999.
The agency found that it had discriminated against complainant based on
his perceived disability when he was terminated. As remedy, the decision
ordered the agency, inter alia, to compute back pay commencing on June 9,
1998 to the date of his reinstatement to his Housekeeping Aide position.
On December 3, 1999, complainant received the agency's computation of his
entitlement to back pay. He appealed the computation to the Commission
alleging that the agency should not have offset his back pay award by
the amount of money he earned in the interim.
Back pay is a remedy available pursuant to 29 C.F.R. � 1614.501.
Under the regulations, back pay is to be computed in a manner prescribed
by 5 C.F.R. � 550.805. In 5 C.F.R. � 550.805(e)(1), it states that
in computing the amount of back pay, an agency must make offsets and
deductions from the gross back pay award for any outside earnings
received by an employee for other employment undertaken to replace the
loss of employment due to an unjustified or unwarranted personnel action
during the interim period covered by the corrective action. In the
case at hand, there is no dispute that complainant earned wages during
the back pay period. Complainant merely argues that the agency should
not have been able to reduce his award by the amount he earned during
the back pay period. Upon review, the Commission finds that the agency
is entitled to deduct complainant's earnings from the back pay award.
Therefore, we affirm the agency's computation of complainant's back pay.
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 5, 2002
__________________
Date