01A30118
02-05-2003
Sandra Gardner, Complainant, v. Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.
Sandra Gardner v. Department of Veterans Affairs
01A30118
February 5, 2003
.
Sandra Gardner,
Complainant,
v.
Anthony J. Principi,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01A30118
Agency Nos. 200I-2752; 200I-2958
DISMISSAL OF APPEAL
By Notice of Appeal postmarked September 28, 2002, complainant filed an
appeal with this Commission from the June 12, 2002 final agency decision
(FAD) dismissing her EEO complaint of unlawful employment discrimination.
A copy of the certified mail return receipt card reveals that the final
decision was received at complainant's address of record on June 19, 2002.
A review of the final decision reveals that the agency properly advised
complainant that she had thirty (30) calendar days after receipt of its
final decision to file her appeal with the Commission. Therefore, in
order to be considered timely, complainant had to file her appeal no later
than July 19, 2002. Complainant argues that the Administrative Judge
(AJ) erroneously advised her she could not appeal from the AJ's decision
which led to the untimely filing of the instant appeal. Our review of
the AJ's decision indicates that she correctly advised complainant she
was required to file any appeal from the agency's final order entered
subsequent to the AJ's decision. Additionally, the agency also advised
complainant of her right to appeal from its final order thus dispelling
any confusion she may have had on receiving the AJ's decision.<1>
Therefore, the Commission concludes that complainant has not offered
adequate justification for an extension of the applicable time limit for
filing her appeal. Accordingly, complainant's September 28, 2002 appeal
is hereby dismissed. See 29 C.F.R. � 1614.403(c). The AJ's remedial
order as set forth in full below remains the order of the Commission:
ORDER
1. The agency shall pay the Complainant $20,000.00 in compensatory
damages within 60 days of the Final Agency Decision;
2. The Agency shall pay the Complainant 24 hours of overtime at the
rate that she would have received overtime in September 2000 within 60
days of the Final Agency Decision.
3. The Agency shall pay the Complainant for the five (5) days of lost
Continuation of Pay (COP) at the rate that she would have received pay
in June 2000 within 60 days of the Final Agency Decision;
4. The Agency shall pay the Complainant for .5 hours for the September
20, 2000 incident within 60 days of the Final Agency Decision.
5. The Agency shall pay the Complainant prejudgment interest computed
at the IRS interest rate from July 1, 2001 to the date that the monetary
amount is paid based on the amounts paid in Item 2 through Item 4 within
60 days of the Final Agency Decision;
6. The agency will remove the October 19, 2000 written counseling from
the Complainant's file within 60 days of the Final Agency Decision;
7. The Agency shall enhance its harassment policy to include all types
of harassment and to be in compliance with the minimum requirements
recommended by the EEOC as noted in this decision within 120 days of
the Final Agency decision;
8. The Agency shall distribute its enhanced harassment policy to all
of its Birmingham, Alabama employees within 180 days of the Final Agency
Decision. The agency shall also give a copy of the enhanced harassment
policy to all of its new Birmingham, Alabama employees at the time of
their hire for at least a one year time period from the date of the
Final Agency Decision;
9. The Agency shall provide at least one hour of training to all
employees at its Birmingham, Alabama facility concerning harassment
and its enhanced harassment policy within 365 days of the Final Agency
Decision.
10. The Agency shall require the Nurse Manager (IV Therapy), Assistant
Chief, Nursing Services and the Injury Compensation Specialist/Worker's
Compensation Coordinator to attend at least 4 hours of training concerning
retaliation, harassment and sensitivity within 90 days of the date of
the Final Agency Decision.
11. The Agency shall ensure that the Complainant is not retaliated
against.
POSTING ORDER (G0900)
The agency is ordered to post at its Veterans Administration Medical
Center, Birmingham, Alabama 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.
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 (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
February 5, 2003
__________________
Date
1The agency's final decision fully implemented
the AJ's finding of discrimination and the accompanying Order for remedial
relief. It then opposed the complainant's appeal and contested the AJ's
compensatory damages award as incorrect. The Commission declines to
address the agency's arguments, however, as they were not the subject
of a properly filed appeal.