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).