Larry Young, Complainant,v.Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity CommissionSep 5, 2002
01A01826 (E.E.O.C. Sep. 5, 2002)

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