Nina Torres, Complainant,v.Ann M. Veneman, Secretary, Department of Agriculture, Agency.

Equal Employment Opportunity CommissionSep 5, 2002
01986936 (E.E.O.C. Sep. 5, 2002)

01986936

09-05-2002

Nina Torres, Complainant, v. Ann M. Veneman, Secretary, Department of Agriculture, Agency.


Nina Torres v. Department of Agriculture

01986936

September 5, 2002

.

Nina Torres,

Complainant,

v.

Ann M. Veneman,

Secretary,

Department of Agriculture,

Agency.

Appeal No. 01986936

Agency No. 930423

DECISION

Complainant alleges that the agency failed to comply with the terms

of a final agency decision (FAD) dated December 21, 1995, which found

that the agency discriminated against complainant based on race and sex

when it terminated her employment<1>, and ordered appropriate remedies.

Specifically, complainant alleged that the agency failed to comply with

the FAD when it 1) failed to address the opportunities for promotion

and training complainant missed due to the agency's discrimination

against her, 2) failed to provide complainant with �full� back pay, 3)

based the back pay award on an incorrect pay grade step, 4) failed to

provide complainant with rehire rights and eligibility, and 5) failed

to implement the remedial actions ordered by the FAD in a timely manner.

The FAD provides, in pertinent part, �[The agency will] [r]etroactively

restore the complainant to her GS-3 (or like) position with full back

pay and benefits commensurate with her TAPER appointment. This includes

restoration of eligibility and all benefits which other TAPER employees

received.�

In 1998, the agency issued a decision finding that it had substantially

complied with the terms of the FAD and that no further action by the

agency was required. This appeal by complainant followed.

EEOC Regulation 29 C.F.R. � 1614.504(a) provides that a final agency

decision that has not been the subject of an appeal or civil action shall

be binding on the agency. It further provides that if a complainant

believes that the agency has failed to comply with the terms of a

decision, she may request that the terms of the decision be specifically

implemented or that the complaint be reinstated for further processing.

Complainant alleged that the agency failed to provide a remedy for the

training and promotional opportunities she missed. During the period

in question, complainant held a temporary, three year appointment with

the agency under a TAPER Worker-Trainee Program. TAPER appointees

were hired at the GS-1 level with the potential for promotion to the

GS-3 level over the course of a three year work and training period.

After three years of qualifying experience, a TAPER appointee could

receive a career appointment with the agency. Complainant, during

her three year TAPER appointment, attained the GS-3, step 3 level, but,

subsequently, did not receive a career appointment. The Commission finds

that complainant received the highest attainable grade under her TAPER

appointment and that the possible award of any additional promotions or

training would be merely speculative.

Complainant alleged that the agency failed to award her �full� back pay

in that her back pay award ended on the termination date of her three year

appointment. Complainant was hired on March 9, 1992 and terminated based

on discriminatory motives on February 16, 1993. The agency calculated

complainant's back pay for the period from February 17, 1993 through

March 8, 1995. The back pay award included within grade increases,

cost of living increases, and interest and was lessened by complainant's

interim earnings and other appropriate offsets. The Commission finds it

foreseeable that, but for the agency's discrimination, complainant would

have held employment with the agency through March 8, 1995, which was

the end of her three year appointment. The possibility of complainant's

employment with the agency beyond March 8 is merely speculative.

Complainant alleged that she was at the GS-3, step 3 level rather than

the GS-3, step 1 level when she was terminated so her back pay award

should begin at step 3 and include subsequent within grade increases.

Based on the record, complainant was a GS-322-03-01 Clerk-Typist at the

time of her termination. We find that the agency's back pay award was

based on the correct grade step.

Complainant alleged that the agency failed to provide her with rehire

rights and eligibility. Complainant held a TAPER appointment, which

was a temporary, non-competitive appointment with a possibility of

conversion to a career appointment. We find that, based on the record,

complainant's termination was processed in accordance with the guidelines

of the TAPER program.

Complainant alleged that the agency failed to implement the remedy awarded

by the FAD in a timely manner. The Commission finds that the agency

complied with the terms of the FAD and it did so within a reasonable

amount of time. Therefore, no further action is required by the agency.

The agency's decision is affirmed.

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

1Complainant held a Temporary Appointment Pending Establishment of a

Register (TAPER).