01A12830_r
07-11-2002
Michael T. Wagner, Complainant, v. Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.
Michael T. Wagner v. Department of Veterans Affairs
01A12830
July 11, 2002
.
Michael T. Wagner,
Complainant,
v.
Anthony J. Principi,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01A12830
Agency No. 99-4420
Hearing No. 160-AO-8279X
DECISION
Complainant filed an appeal with the Commission alleging that the agency
failed to comply with a final order issued by the agency on May 12, 2000.
A review of the record reveals that during the relevant time, complainant
was employed as a cemetery caretaker, WG-5, assigned to the Grounds
section of the Calverton National Cemetery. Believing he was subjected
to discrimination on the bases of race and color when on February 19,
1998, he was not selected for a WG-7 position, complainant sought EEO
counseling and, subsequently, filed a formal complaint of discrimination
on March 30, 1998. At the conclusion of the investigation, complainant
requested a hearing before an EEOC Administrative Judge (AJ). The AJ
issued a decision on April 17, 2000, entering summary judgment in favor
of complainant.<1>
On May 12, 2000, the agency issued a final order finding that complainant
was subjected to discrimination on the bases of race and color when he
was not selected as the motor vehicle operator, WG-7, in February 1998.
The agency order provided the following equitable remedies:
retroactive promotion to the position of Motor Vehicle Operator, WG-7;
backpay (less interim earnings);
any and all benefits or training that complainant would have earned or
received but for the prohibited discrimination;
restoration of all leave (annual, sick, or leave without pay) taken as
a result of the discriminatory action; and
commitment to complainant in writing that the agency will cease from
engaging in the unlawful employment practice found in this case.
The agency order further provided that within 30 days of its receipt
of all necessary information, management will implement the remedial
relief ordered, and shall advise the complainant in writing of: �(1)
the amount of back pay and other attendant benefits due him, and (2)
how management reached its determinations regarding these matters.�
In addition to equitable relief, the agency found that complainant was
entitled to costs associated with the prosecution of the case. Finally,
the agency stated that an appropriate management official shall sign
and conspicuously post at the facility an attached notice of violation
for a period of not less than 60 days.
In a letter dated January 19, 2001, complainant alleged that the agency
was not complying with its May 12, 2000 final order. Specifically,
complainant stated that the agency failed to: (1) restore annual and
sick leave; (2) provide interest on retroactive backpay; (3) allow
him to contribute a portion of his backpay to the thrift savings plan
(TSP); and (4) provide training on numerous vehicles and equipment.
In addition, complainant alleged that the agency failed to comply with
the time frames required in its final order in the following areas:
(5) promotion to WG-7; (6) posting of the employee notice of a Title
VII violation; (7) retroactive backpay; and (8) written commitment to
ensure no future discrimination.
The agency issued a final decision dated March 9, 2001, finding that it
was in compliance with the May 12, 2000 final order. The agency stated
that complainant was promoted to a WG-7/2 motor vehicle operator on June
19, 2000. The agency stated that with regard to the backpay, interest,
and other benefits, it submitted the paperwork to the servicing personnel
office at the Northport Medical Center's payroll processing office but
due to staff shortages, and the complexity of the case, the processing of
complainant's backpay was delayed. The agency noted that complainant
met with Person A, the Personnel Specialist at the payroll office
in Northport, in mid-October 2000, to discuss backpay calculations.
The agency stated that complainant was pleased with the calculations
and was paid $3,503.05 in backpay in pay period 21 (October 21, 2000 -
November 3, 2000). The agency also stated that complainant was paid
interest on the backpay in pay period 23 in the amount of $281.74.
With regard to the restoration of leave, the agency noted that complainant
provided the dates of leave taken as a result of the discrimination on
October 16, 2000, totaling 96 hours of annual leave and 40 hours of
sick leave. The agency noted that it sent complainant a request for
medical documentation regarding the leave requested on October 26, 2000.
The agency stated that it ultimately decided to restore the total
leave requested by complainant. With regard to complainant's claim
that he has not received training on numerous vehicles and equipment,
the agency pointed out that complainant has received training on seven
dates between March 2, 2000, and February 14, 2001. The agency stated
that it also sent complainant a letter committing to cease from engaging
in the unlawful employment practice found in his case. The agency stated
that complainant met with the Personnel Specialist in October to discuss
the back pay calculations. The agency found that the agency's attempt
to provide complainant a review of the back pay calculations fulfilled
the agency's obligation as stated in the March 12, 2000 decision.
The agency stated, however, that it will provide complainant a written
determination on how the back pay calculations were made. Finally, the
agency noted that the requisite employee notice was posted from July 7,
2000, through September 7, 2000.
In his April 23, 2001 appeal, complainant states that the agency failed
to comply with the appropriate time frames required by its March 12,
2000 order. Complainant claims that the agency failed to retroactively
promote him to a WG-7 until approximately July 10, 2000. In addition,
complainant states that he did not receive the appropriate back pay
until pay period 21 (October 21, 2000 - November 3, 2000); and he did
not receive the accrued interest until pay period 23 of the year 2000.
Complainant also states that the agency failed to restore his leave in
accordance with the final order. Complainant claims that the agency
failed to provide training on WG-7 equipment such as small backhoes,
front-end loader with rake, and turbo ditch witch with cutting wheel.
Complainant states the training identified by the agency in its March 9,
2001 decision related to training on equipment he was required to operate
as a WG-5. Complainant notes that other WG-7 employees have been trained
on the equipment he identified. Complainant claims that the agency did
not post the employee notice of Title VII violation until July 7, 2000.<2>
Complainant states that he received a letter in November 2000, with a
postmark of September 28, 2000, stating that the agency and Calverton
National Cemetery are committed to providing complainant a work place
free from discrimination. Complainant states that he has since filed four
additional complaints of discrimination. Thus, he argues that the agency
was late in providing the required letter and that it failed to honor
the commitment stated in this letter. Finally, complainant states that
the has been denied the opportunity to contribute a portion of his back
pay to the TSP as agreed to in a meeting with the agency in May of 2000.
Upon review, the Commission finds that it is unable to determine
whether the agency restored the leave complainant used as a result
of discrimination. We note that although the agency stated that it
restored 96 hours of annual leave and 40 hours of sick leave, there is
no documentation provided in the record to support this assertion.
Therefore, the Commission shall remand this matter for further
investigation and a new decision by the agency.
With regard to complainant's claim that the agency failed to timely
provide him back pay and interest for his retroactive promotion, we find
that the agency has complied with this provision of the final order.
Complainant acknowledges that he met with the Personnel Specialist in
October 2000 to review the back pay calculations. Complainant admits
that he received the appropriate back pay in pay period 21 (October
21, 2000- November 3, 2000) and the interest in pay period 23 of 2000.
Complainant does not allege that the agency did not pay him the correct
amount of back pay. Upon review, we find that the agency paid complainant
the required retroactive back pay within thirty days of receipt of all
necessary information. We note that while the payment of interest was
not received within the requisite time frame, we find that the agency
substantially complied with the final decision by making the payment in
pay period 23, which was prior to the filing of complainant's claim of
noncompliance in January 2001.
The agency's March 12, 2000 decision stated that the agency was to promote
complainant to the position of motor vehicle operator, WG-7. On appeal,
complainant states that she was promoted to a WG-7 in approximately
July 2000. Thus, the Commission finds that the agency substantially
complied with the relief stated in the agency's March 12, 2000 order.
The agency order stated that in addition to promoting complainant
retroactively to the WG-7 motor vehicle operator position, the agency
was required to provide complainant with all benefits or training
that he would have otherwise earned or received but for the prohibited
discrimination. Complainant alleged that the agency failed to comply
with this requirement in that the agency did not: (1) allow complainant
to contribute a portion of his back pay to the TSP; and (2) provide
complainant training on WG-7 equipment, such as the small backhoes,
front-end loader with rake, and turbo ditch witch with cutting wheel.
The Commission finds that there is insufficient evidence in the record to
determine whether the agency complied with this portion of the order and
we shall remand the matter for further investigation and a new decision
by the agency.
The March 12, 2000 order required the agency to post an employee notice
of the Title VII violation for a period of sixty days. On appeal,
complainant acknowledges that the agency posted the required notice
on July 7, 2000. The Commission finds that the agency substantially
complied with the posting requirement when it posted the employee notice
on July 7, 2000, which was prior to complainant's filing of the present
noncompliance claim.
Finally, with regard to complainant's claim that the agency failed
to timely provide a written notice that it is committed to provide
him a workplace free from discrimination, we find that the agency has
complied with this provision. Specifically, the record reveals that
the agency provided complainant written notice by a letter postmarked
September 28, 2000, that it is �committed to providing a workplace
free of discrimination.� The Commission notes that to the extent that
complainant believes that the agency took an action against him based on
discrimination, we find that such a claim should be raised by complainant
with the EEO Counselor as a separate complaint of discrimination and
not as a claim of noncompliance.
Accordingly, the agency's determination that it complied with the
retroactive promotion, back pay, interest, and posting requirements
as stated in the May 12, 2000 final order is AFFIRMED. The agency's
decision that it complied with the provisions requiring restoration of
leave, training, and TSP contributions, is VACATED and these matters
are REMANDED for further processing in accordance with the Order below.
ORDER
The agency shall take the following actions:
The agency shall place into the record documentation indicating whether
it has restored all leave (annual, sick, or leave without pay) taken by
complainant as a result of the discriminatory action.
The agency shall place into the record documentation showing whether
complainant has been afforded all training that he would have otherwise
received had he been promoted to the WG-7 Motor Vehicle Operator position.
The agency shall place into the record documentation showing whether
complainant was allowed to contribute part of his back pay to his Thrift
Savings Plan.
Within 30 calendar days of the date that this decision become final,
the agency shall issue its decision on complainant's claim that the
agency failed to comply with the above mentioned provisions of relief
stated in the final order dated May 12, 2000.
A copy of the agency's new decision must be sent to the Compliance
Officer as referenced herein.
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 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 (T0900)
This decision affirms the agency's final decision/action in part, but it
also requires the agency to continue its administrative processing of a
portion of your complaint. 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 on both that portion
of your complaint which the Commission has affirmed and that portion
of the complaint which has been remanded for continued administrative
processing. 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 your appeal with the Commission, until
such time as the agency issues its final decision on your complaint.
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
July 11, 2002
__________________
Date
1Complainant filed another EEO complaint
under Agency No. 99-1134 which was consolidated with the present
case for a hearing. On April 17, 2000, the AJ issued a decision on
both cases. The AJ issued summary judgment in favor of the agency
in Case No. 99-1134 and in favor of complaint in Case No. 99-4420.
The agency subsequently issued a final order adopting the AJ's decision.
The Commission has no indication that complainant appealed the agency's
finding of no-discrimination with regard to Agency Case No. 99-1134.
2On appeal, complainant states that the agency failed to post the
required notice until July 7, 2001, and also states that he filed a new
discrimination complaint on June 19, 2001, regarding the agency's failure
to post this notice. However, the record shows that complainant initially
contacted an EEO Counselor regarding the agency's failure to post the
notice on June 19, 2000. Further, the letter provided by complainant on
appeal was dated April 23, 2001. Thus, we find that complainant meant to
refer to a posting by the agency on July 7, 2000, instead of July 7, 2001.