05a20949
12-18-2002
Marylou Gressman v. Department of the Air Force, 05A20949 12-18-02 .Marylou Gressman, Complainant, v. Dr. James G. Roche, Secretary, Department of the Air Force, National Guard Bureau, Agency.
Marylou Gressman v. Department of the Air Force,
05A20949
12-18-02
.Marylou Gressman,
Complainant,
v.
Dr. James G. Roche,
Secretary,
Department of the Air Force,
National Guard Bureau,
Agency.
Appeal No. 05A20949
Appeal No. 01993872
DENIAL OF REQUEST FOR RECONSIDERATION
On July 3, 2002, the agency initiated a timely request to the Equal
Employment Opportunity Commission (Commission) to reconsider the decision
in Marylou Gressman v. Thomas E. White, Secretary, Department of the Army
(National Guard Bureau), EEOC Appeal No. 01993872 (May 29, 2002).<1> EEOC
Regulations provide that the Commission may, in its discretion, reconsider
any previous decision where the party demonstrates that: (1) the previous
decision involved a clearly erroneous interpretation of material fact or
law; or (2) the decision will have a substantial impact on the policies,
practices, or operation of the agency. 29 C.F.R. � 1614.405(b).
After a review of the agency's request for reconsideration, complainant's
response thereto, the previous decision, and the entire record, the
Commission finds that the agency's request does not meet the criteria in
29 C.F.R. � 1614.405(b). Therefore, it is the decision of the Commission
to deny the agency's request. The decision in EEOC Appeal No. 01993872
(May 29, 2002) remains the Commission's final decision. The agency shall
comply with the provisions of the Order, as modified below. There is no
further right of administrative appeal on a decision of the Commission
on this Request for Reconsideration.
ORDER
The agency is ORDERED to take the following remedial action:
1. The agency shall, within thirty (30) days of the date this decision
becomes final, retroactively promote complainant to the position of Auto
Mechanic Supervisor, or a substantially equivalent position, effective
March 30, 1997, the date on which the individual selected assumed the
position.
2. The agency shall reimburse complainant for any lost wages, seniority,
leave, or other benefits incurred due to the nonselection. The agency
shall determine the appropriate amount of back pay and other benefits
due claimant, pursuant to 29 C.F.R. � 1614.501, no later than sixty (60)
calendar days after the date this decision becomes final. The claimant
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 claimant for
the undisputed amount within sixty (60) calendar days of the date the
agency determines the amount it believes to be due. The claimant 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."
3. The agency shall conduct a supplemental investigation to determine
whether complainant is entitled to compensatory damages for the denial
of reasonable accommodation, as requested in his formal complaint.
Within fifteen (15) days of the date this decision becomes final, the
agency shall notify complainant of his right to present evidence to
the agency regarding his claim for damages, including medical bills and
statements from family members and doctors. Complainant shall provide
objective evidence that the damages in question were a result of the
agency's discrimination and of the amount of the claimed damages.<2>
Thereafter, the agency shall issue a final decision as to complainant's
compensatory damages claim. The supplemental investigation and issuance
of the final decision must be completed within sixty (60) calendar days
of the date this decision becomes final.
4. The agency shall conduct 8 hours of training for the selecting official
addressing his responsibility under equal employment opportunity law.
The training shall place special emphasis on the elimination of sex
discrimination.
5. The agency shall consider appropriate disciplinary action against
the selecting official and any other management officials responsible
for the nonselection herein. The agency shall report its decision.
If the agency decides to take disciplinary action, it shall identify the
action taken. If the agency decides not to take disciplinary action, it
shall set forth the reason(s) for its decision not to impose discipline.
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 evidence that corrective action
has been implemented.
POSTING ORDER (G0900)
The agency is ordered to post at its Duluth, Minnesota, Vehicle
Maintenance 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.
ATTORNEY'S FEES (H0900)
If complainant has been represented by an attorney (as defined by
29 C.F.R. � 1614.501(e)(1)(iii), he/she is entitled to an award of
reasonable attorney's fees incurred in the processing of the complaint.
29 C.F.R. � 1614.501(e). The award of attorney's fees shall be paid
by the agency. The attorney shall submit a verified statement of fees
to the agency -- not to the Equal Employment Opportunity Commission,
Office of Federal Operations -- within thirty (30) calendar days of this
decision becoming final. The agency shall then process the claim for
attorney's fees in accordance with 29 C.F.R. � 1614.501.
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.
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
______12-18-02____________________________
Date
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing. I certify that
the decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
_________________________
Date
_________________________
1It is noted that the initial appeal decision incorrectly cited the
agency as being the Department of the Army, however, this would not
effect the ultimate decision in the case.
2The Commission's decision in Carle v. Department of the Navy, EEOC Appeal
No. 01922369 (January 5, 1993), describes in detail the type of evidence
which should be presented in support of a claim for compensatory damages.