04A10047
12-07-2001
Lawrence McCurdy, Complainant, v. Tommy G. Thompson, Secretary, Department of Health and Human Services, Agency.
Lawrence McCurdy v. Department of Health and Human Services
04A10047
December 7, 2001
.
Lawrence McCurdy,
Complainant,
v.
Tommy G. Thompson,
Secretary,
Department of Health and Human Services,
Agency.
Petition No. 04A10047
Appeal No. 01A10659
Agency No. 95-1249
Hearing No. 100-96-7336X
DECISION ON PETITION FOR CLARIFICATION
On July 11, 2001, the Equal Employment Opportunity Commission (EEOC
or Commission) docketed a Petition for Enforcement from the Department
of Health and Human Services (agency) requesting clarification of the
Commission's order in Lawrence McCurdy v. Department of Health and
Human Services, EEOC Appeal No. 01A10659 (June 13, 2001). The Petition
for Clarification focuses on the amount of damages ordered by the
Commission in its EEOC Appeal No. 01A10659 decision. Paragraph one of
the Commission's order directed that the agency tender to complainant
$1,500 in past pecuniary damages and $5,000 in non-pecuniary damages,
a total of $6,500. The agency's Petition for Clarification was properly
filed in accordance with 29 C.F.R. � 1614.503(c) and is granted.
The agency in its final decision on damages (FAD (Damages)) awarded
complainant a total of $6,310 in compensatory damages, $1,310 in pecuniary
compensatory damages and $5,000 in nonpecuniary compensatory damages.
In appealing the FAD (Damages), complainant did not dispute the agency's
award of $1,310 in pecuniary compensatory damages. However, complainant
submitted that the agency's award of $5,000 in nonpecuniary compensatory
damages was inadequate. The Commission in its EEOC Appeal No. 01A10659
decision affirmed the agency's final decision on damages, noting that
complainant did not dispute the agency's award of pecuniary damages (see
complainant's appeal at 21) and finding that complainant was entitled
to nonpecuniary damages in the amount of $5,000.
The award of $1,500 in pecuniary compensatory damages was an error.
The $1,310 in pecuniary compensatory damages awarded by the agency in
its FAD (Damages) was not even in dispute on appeal. Accordingly,
the Commission is ordering the agency to pay $6,310 in compensatory
damages, including $1,310 in pecuniary compensatory damages and $5,000
in nonpecuniary compensatory damages.
CONCLUSION
Based on a review of the record, and for the foregoing reasons,
the Commission grants the Petition for Clarification of the order in
Lawrence McCurdy v. Department of Health and Human Services, EEOC Appeal
No. 01A10659 (June 13, 2001). The agency shall take the actions set
forth in the order below.
ORDER
The agency is ordered to take the following remedial actions:
1. Within thirty calendar days of the date this decision becomes final,
the agency shall tender to complainant $1,310 in past pecuniary damages
and $5,000 in non-pecuniary damages, a total of $6,310.
2. The agency is further directed to submit a report of compliance,
as provided in the statement below entitled �Implementation of the
Commission's Decision.� The report shall include documentation that
the ordered action has been implemented.
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 PETITION FOR CLARIFICATION
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
December 7, 2001
Date