0120062646
11-09-2007
Russell Harris, Complainant, v. Dr. Donald C. Winter, Secretary, Department of the Navy, Agency.
Russell Harris,
Complainant,
v.
Dr. Donald C. Winter,
Secretary,
Department of the Navy,
Agency.
Appeal No. 01200626461
Agency No. 04-61065-09915
DECISION
Complainant filed an appeal with the Commission
on March 20, 2006, seeking a determination whether
the agency has fully complied with its final order.
The record reveals that complainant filed a complaint alleging that
he was discriminated against on the bases of race (African-American),
color (black), and reprisal for prior protected EEO activity when:
on September 21, 2003, complainant was not selected for a GS-0083-08
Supervisory Police Officer position, advertised under vacancy announcement
NWC03-0083-08-218684. At the conclusion of the investigation, complainant
requested a hearing before an EEOC Administrative Judge (AJ). On July
26, 2005, an AJ issued a default judgment in favor of complainant.
Following a hearing on damages, the AJ issued a decision on November 7,
2005, regarding damages and attorney's fees and ordered the agency to:
(1) pay complainant $10,000.00 in non-pecuniary damages;
(2) retroactively promote complainant to a GS-08 Supervisory Police
Officer position, effective September 21, 2003;
(3) provide complainant with any training or other benefits he would
have received as a result of his promotion;
(4) pay complainant full back pay at the GS-0083 rate from September 21,
2003, through November 7, 2005, including annual step increases;
(5) pay complainant 117 hours of night differential pay, 61 hours
of annual holiday pay, and 400 hours of overtime for the period from
September 21, 2003, through November 7, 2005; and
(6) pay complainant $23,531.25 in attorney's fees and $124.64 in costs.
On December 15, 2005, the agency issued its final order fully implementing
the AJ's decision finding discrimination and the corrective action
ordered in the AJ's decision.
The decision stated that within thirty days of receipt of the decision,
the activity will submit to the Director, Office of EEO Complaints
Management and Adjudication, a report regarding the status of the
compliance with the corrective actions. A report was to be submitted
every thirty days thereafter until full compliance is met. The final
decision gave complainant appeal rights to the Commission.
The record contains the agency's first compliance report dated March 7,
2006, stating that on January 11, 2006, a voucher was submitted for
payment of $10,000.00 in non-pecuniary damages. With regard to the
ordered relief on promotions, back pay, night differential pay, holiday,
overtime, training and benefits, the agency reported that calculations and
personnel actions are still being processed. The agency also stated that
vouchers were submitted on January 11, 2006, for payment of $23,531.25
in attorney's fees and on February 6, 2006, for $124.64 in costs.
The record contains an April 12, 2006 final compliance report purporting
to document full compliance with the agency's final order. The agency
notes that it submitted a voucher on January 11, 2006, for payment of
$10,000.00 in non-pecuniary damages, a voucher for payment of attorney's
fees in the amount of $23,531.25 on January 11, 2006, and a voucher for
payment of $124.64 in costs on February 6, 2006. The agency submits
a copy of the vouchers referenced and an electronic mail message from
a Resource Management employee containing a printout from its Official
Reporting System to verify payment in the specified amounts.
The final compliance report attaches several Standard Form 50s,
Notification of Personnel Action, to show it provided complainant with the
promotion, back pay, night differential pay and other benefits specified
in its final order. The record contains a SF 50 showing that effective
September 21, 2003, complainant was promoted from a Police Officer,
GS-0083, Grade 6, Step 8, to a Supervisory Police Officer, GS-0083,
Grade 8, Step 1. The record also contains a SF 50 showing that effective
September 19, 2004, complainant progressed from GS-0083, Grade 8, Step 1,
to GS-0083, Grade 8, Step 2. The record also contains a SF 50 showing
that effective September 18, 2005, complainant advanced from a GS-0083,
Grade 8, Step 2, to GS-0083, Grade 8, Step 3.
Finally, the agency provides an Individual Development Plan (IDP)
signed by complainant on March 23, 2006, which states that complainant
will receive formal training in the following courses: "Introduction to
Supervision" to be scheduled within six months, "Supervisor's Role in
Human Resources Programs" to be scheduled within 6 months, "EEO for
Supervisors" to be given annually, and "Communication Skills" to be
scheduled within twelve months.
On January 21, 2006, and January 27, 2006, complainant wrote the agency
requesting a status report on its compliance with the final order.
On January 31, 2006, and February 11, 2006, complainant notified the
agency of its noncompliance with the final order and requested immediate
implementation of all benefits denied him. On March 13, 2006, the agency
sent complainant an electronic mail message informing him that he would
be promoted to the GS-8 Supervisory Police Officer position effective
March 19, 2006.
On March 20, 2006, complainant filed an appeal with the Commission
alleging that the agency failed to comply with the terms of its final
order. Complainant claimed that to date the agency failed to promote him
to the specified position effective September 21, 2003, failed to provide
him back pay and failed to pay him overtime as stated in its final order.
In response to complainant's appeal, the agency reiterated its position
that it achieved full compliance with its final order.
In a May 2, 2006 letter, complainant stated that the agency has not
explained why he was promoted to a GS-8, step 1. Complainant notes that
at the time of the AJ's decision he was a GS-6, step 8 and argues as a
result of the finding of discrimination he should have been promoted to
a GS-8, step 3 effective September 21, 2003. He states he then would
have progressed to a GS-8, step 3 in 2003, and a GS-8, step 4, in 2004.
Complainant also states that the agency did not provide a pay period by
pay period break down of back pay calculations. Additionally, complainant
argues that the training specified in the IDP does not constitute all
the training he was denied when he was not promoted in September 2003.
Complainant states that other supervisory employees received specialized
training in hazardous material, bomb detection, and other training.
Thus, complainant claims the agency should provide a detailed list of all
training provided to others during the time he was denied the position
and schedule him to catch up on the training. Finally, complainant
requests interest on the back pay awarded to him.
As an initial matter, we find that as neither party disputes the AJ's
finding of discrimination, we hereby affirm that determination herein.
Additionally, we note that complainant has not appealed the remedy
awarded by the AJ.
Upon review, the Commission finds the agency has shown compliance
with corrective action (1), as stated in the agency's final order.
Under corrective action (1), the agency was required to pay complainant
$10,000.00 in non-pecuniary damages. The record shows that the agency
submitted a voucher for payment of $10,000.00 on January 11, 2006, and
provides an electronic mail message from a Resource Management employee
verifying payment.
With regard to corrective action (2), we find the agency has shown
compliance with this provision. Under corrective action (2), the agency
was to retroactively promote complainant to a GS-8 Supervisory Police
Officer position, effective September 21, 2003. The record contains a SF
50 showing that effective September 21, 2003, complainant was promoted
from a Police Officer, GS-6, Step 8, to a Supervisory Police Officer,
GS-8, Step 1. The record also shows that effective September 19, 2004,
complainant progressed from GS-8, Step 1, to GS-8, Step 2. The record
shows that effective September 18, 2005, complainant advanced from a
GS-8, Step 2, to GS-8, Step 3. Despite complainant's contention that
he should have been promoted to a GS-8, Step 3, effective September 21,
2003, we note that the record reveals that at the time giving rise to
the discriminatory non-selection, complainant was a Grade 6, Step 8,
earning $47,905.00. As noted by the AJ in her November 7, 2005 decision,
in 2003, the GS-8, Step 1 annual salary was $50,832.00 and $51,743.00
in 2004. Thus, we find the agency has shown that it properly promoted
complainant effective September 21, 2003, to a GS-8, Step 1, in accordance
with the AJ's decision which it fully implemented. Further, the agency
has shown that it provided complainant the appropriate step increases
on September 19, 2004, and September 18, 2005.
The Commission is unable to determine whether the agency complied with
corrective action (3) as stated in its final order. Under corrective
action (3), the agency was required to provide complainant with any
training or other benefits he would have received as a result of his
promotion. The record contains an Individual Development Plan Signed
by complainant on March 23, 2006, which states that complainant will
receive formal training in the following courses: "Introduction to
Supervision" to be scheduled within six months, "Supervisor's Role in
Human Resources Programs" to be scheduled within 6 months, and "EEO
for Supervisors" to be given annually, and "Communication Skills" to
be scheduled within twelve months. We note that complainant does not
challenge the determination that this is training he would have received
as a result of his promotion. However, the agency failed to show that
such training was provided to complainant. Further, complainant claims
that he lost specialized training in hazardous material, bomb detection,
and other training. The agency did not address the propriety of providing
the additional training specified by complainant. Therefore, we shall
remand the issue of compliance with corrective action (3) so that the
agency may supplement the record with evidence showing whether it has
provided complainant with all training he would have received as a result
of his promotion.
Upon review of the record, the Commission is unable to determine whether
the agency has complied with the corrective action (4) specified in its
final order. Specifically, the agency was ordered to pay complainant full
back pay at the GS-0083 rate from September 21, 2003, through November 7,
2005, including annual step increases. The agency has failed to include
any evidence indicating whether this corrective action was completed.
Furthermore, to the extent interest is due on the back pay award,
the agency shall provide documentation indicating how such interest
calculations were made and evidence this interest was paid. Accordingly,
the issue of the agency's compliance with corrective action (4) will be
remanded for further processing in accordance with the Order below.
Similarly, the Commission is unable to determine whether the agency has
complied with the corrective action (5) specified in its final order.
Specifically, under corrective action (5), the agency was ordered to
pay complainant 117 hours of night differential pay, 61 hours of annual
holiday pay, and 400 hours of overtime for the period from September 21,
2003, through November 7, 2005. The agency failed to include any evidence
indicating whether this corrective action was completed. Accordingly,
the issue of the agency's compliance with corrective action (5) will be
remanded for further processing in accordance with the Order below.
Upon review, we find the agency has shown compliance with corrective
action (6) specified in its final order. Under corrective action (6),
the agency was required to pay complainant $23,531.25 in attorney's fees
and $124.64 in costs. We note the record contains a voucher for payment
of $23,531.25 in attorney's fees submitted on January 11, 2006, and a
voucher for payment of $124.64 in costs submitted on February 6, 2006.
The agency submits a copy of the vouchers referenced and an electronic
mail message from a Resource Management employee containing a printout
from its Official Reporting System to verify payment in the specified
amounts. Furthermore, we note complainant has not contested the agency's
position that payment of attorney's fees and costs have been made.
Accordingly, the agency's final decision regarding corrective action (3),
(4), and (5) is VACATED and the matter is REMANDED for a supplemental
investigation. The agency's final decision regarding corrective action
(1), (2), and (6) is AFFIRMED.
ORDER
Within 30 days of the date this decision becomes final, the agency shall:
1. Supplement the record with evidence indicating whether it has
paid full back pay at the GS-0083 rate from September 21, 2003, through
November 7, 2005, including annual step increases. The agency shall
include documentation of back pay calculations and indication of the
date complainant was paid back pay, as well as appropriate interest.
2. Supplement the record with evidence showing whether complainant
was paid for 117 hours of night differential pay, 61 hours of annual
holiday pay, and 400 hours of overtime for the period from September
21, 2003, through November 7, 2005. The agency shall provide
documentation of pay calculations and evidence of any payments made
to complainant.
3. Supplement the record with evidence indicating whether the agency
has provided complainant with all training or other benefits he would have
received as a result of his promotion. The agency shall provide evidence
indicating whether complainant received formal training in the following
courses: "Introduction to Supervision," "Supervisor's Role in Human
Resources Programs," "EEO for Supervisors," and "Communication Skills."
The agency shall also address complainant's contention that he was also
entitled to receive training in hazardous material and bomb detection.
4. Issue a decision on complainant's claim of agency noncompliance
with the ordered relief.
A copy of the agency's 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
November 9, 2007
__________________
Date
1 Due to a new data system, this case has been redesignated with the
above referenced appeal number.
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0120062646
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
8
0120062646