04a00019
06-21-2000
Louis Caldera, ) Request No. 05980251
Hunter Timmons, Jr. v. Department of the Army
04A00019
June 21, 2000
Hunter Timmons, Jr., )
Petitioner, )
)
v. ) Petition No. 04A00019
) Prior Petition No. 04980038
Louis Caldera, ) Request No. 05980251
Secretary, ) Appeal No. 01961926
Department of the Army,) Agency No. 94-07-0073
Agency. )
)
DECISION ON PETITION FOR ENFORCEMENT
On May 18, 2000, the Equal Employment Opportunity Commission (EEOC or
Commission) docketed a Petition for Enforcement from Hunter Timmons, Jr.,
(petitioner), requesting enforcement of the Commission's order in Hunter
Timmons, Jr., v. Department of the Army, EEOC Petition No. 04980038
(March 15, 2000). The Petition for Enforcement was properly filed in
accordance with 29 C.F.R. �1614.503(a). For the reasons set forth herein,
the petition is DENIED.
ISSUE PRESENTED
The issue presented in this petition is whether the agency has fully
complied with the Order of the Commission set forth in EEOC Petition
No. 04980038.
BACKGROUND
This is the second Petition for Enforcement (PFE) filed in this case.
The history of the case is as follows: In a decision on an appeal filed
by petitioner, the Commission found that the Department of the Army
(the agency) had discriminated against petitioner based on physical
disability in violation of the Rehabilitation Act of 1973, as amended,
29 U.S.C. � 791 et seq. As relief, the Commission ordered, in relevant
part, that the agency "correct [petitioner's] records to show that his
temporary Materials Handler, WG-4, position was extended for the same
period as that of the Comparative [employee]," and that the agency provide
petitioner with appropriate back pay and benefits. Hunter Timmons, Jr.,
v. Department of the Army, EEOC Appeal No. 01961926 (December 12, 1997).
The agency subsequently filed a request for reconsideration, which was
denied. Hunter Timmons, Jr., v. Department of the Army, EEOC Request
No. 05980251 (April 30, 1998).
Petitioner subsequently filed a PFE alleging that the agency had
not provided the relief ordered by the Commission. In relevant part,
petitioner argued that the agency had not properly calculated the amount
of back pay to which he was entitled for lost overtime opportunities.
Petitioner argued that the agency had based its calculations on the
amount of overtime worked by the individual who in earlier proceedings was
identified as "the Comparative" or "the Comparative employee," and that
this individual had resigned his position shortly after his appointment
was extended, thereby improperly limiting the amount of overtime back
pay petitioner would receive to 47 hours. In its decision on that PFE,
the Commission ordered the agency, in relevant part, to "estimate the
amount of overtime petitioner would have worked during the full year of
his extension [had his appointment been extended] rather than rely on
the number of hours actually worked by the comparative employee prior
to his resignation."
The agency thereafter filed a report of compliance, captioned as a
response to the Order of the Commission in the first PFE. The agency
noted that it had not, in fact, based its overtime calculations on the
overtime performed by the Comparative. Rather, the agency stated, it
had based its calculations on the overtime worked by the employee who
assumed the duties, albeit not the actual position, which petitioner
would have performed had his appointment been extended; and that this
employee (Comparative 2) actually worked 47 hours of overtime during
the one-year period referenced by the Commission.
In the instant PFE, petitioner again argues, in relevant part, that
the agency has improperly calculated the amount of overtime back pay to
which he is entitled. In its response, the agency maintains that its
calculations are correct.
ANALYSIS and FINDINGS
Having reviewed the entire record, including the instant PFE and the
agency's response thereto, the Commission concludes that the agency has
complied with the relief ordered in its previous decisions. The record
reflects that the individual referred to as "the Comparative" was the
appropriate comparative for purposes of determining whether the agency
had discriminated against petitioner when it did not extend his temporary
appointment. However, the Comparative resigned his position shortly after
his appointment was extended. The agency recognized that petitioner's
overtime back pay therefore should not be calculated based on the overtime
worked by the Comparative. Instead, the agency relied upon the overtime
worked by a second employee, referred to above as Comparative 2, who
assumed the duties previously performed by the incumbents of the Materials
Handler, WG-4, positions (petitioner and the Comparative). Based upon the
overtime worked by Comparative 2, the agency paid petitioner back pay for
47 hours of overtime. It appears that the dispute over whether the agency
calculated the amount of overtime back pay arose from a lack of clarity
as to whom the parties meant when referring to "the Comparative": the
employee identified as "the Comparative" in the finding of discrimination
or the employee identified herein as Comparative 2.
The Commission notes petitioner's argument that he is entitled to more
than one year of back pay. Petitioner is entitled to a remedy that
constitutes full, make-whole relief to restore him to the position
he would have occupied absent the discrimination. See, e.g., Franks
v. Bowman Transportation Co., 424 U.S. 747, 764 (1976); Adesanya
v. U.S. Postal Service, 01933395 (July 21, 1994). The Commission has
previously determined that, absent the discrimination, petitioner's
temporary appointment would have been extended for one year. Accordingly,
petitioner's entitlement to relief is limited to what benefits he would
have received during that one- year period.
CONCLUSION
Based upon a careful review of the record, and for the foregoing reasons,
the petition for enforcement is DENIED.
STATEMENT OF RIGHTS - PETITION FOR ENFORCEMENT
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)
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:
June 21, 2000
Date Carlton M. Hadden, Acting Director
Office of Federal Operations