04A20013
03-10-2003
Stan Laber, Petitioner, v. Thomas E. White, Secretary, Department of the Army, Agency.
Stan Laber v. Department of the Army
04A20013
March 10, 2003
.
Stan Laber,
Petitioner,
v.
Thomas E. White,
Secretary,
Department of the Army,
Agency.
Petition No. 04A20013
Request No. 05990372
Appeal No. 01973838
Hearing No. 100-94-7118X
Agency No. 0793061E
DECISION ON A PETITION FOR CLARIFICATION
On March 5, 2002, the Equal Employment Opportunity Commission docketed
a petition for clarification to examine an order set forth in Stan Laber
v. Department of the Army, EEOC Petition No. 04A00020 (January 23, 2002).
This petition for clarification is accepted by the Commission pursuant
to 29 C.F.R. � 1614.503.
In its decisions set forth in Stan Laber v. Department of the Army,
EEOC Appeal No. 01973838 (December 22, 1998) request for reconsideration
denied, EEOC Request No. 05990372 (April 10, 2000),<1> the Commission
affirmed a finding by an EEOC Administrative Judge that petitioner
had been discriminated against on the basis of religion when he was
not selected for the position of Industrial Specialist, GS-1150-11,
in Tel Aviv, Israel. The Commission ordered the agency to accomplish
the following:
Within thirty (30) days of the date the Commission's decision became
final, the agency must offer petitioner immediate placement in an
Industrial Specialist GS-11 position in Israel, or a substantially
equivalent position even if such position is at a GS-12 or GS-13 level,
providing that petitioner is qualified for such position, and award him
appropriate back pay, interest, and other benefits.
The matter was then assigned to a Compliance Officer and docketed
as Compliance No. 06A01000 on April 17, 2000. On May 16, 2000, the
agency submitted its initial compliance report. Petitioner contacted the
Compliance Officer on May 26, 2000, indicating that he wished to file
a petition for enforcement. In accordance with petitioner's request,
the petition was docketed on July 10, 2000. By his letter dated July
19, 2000, petitioner stated that he had accepted the agency's offer of
employment in Germany with no conditions regarding placement in Israel
or elsewhere. Petitioner withdrew that portion of his petition for
enforcement which claimed that the agency's offer of employment was
deficient because the location was not Israel, and requested that his
petition be modified accordingly. In a final (330-day) compliance
report dated March 12, 2001, the agency contends that it has complied
with the provision of the Order relating to the agency's job offer, as
petitioner unconditionally accepted an agency-offered GS-11 position in
Germany, and he has been working in that position since October 2000.
The agency also stated that it had complied with the provisions of
the Order regarding training, posting of the discrimination notice and
payment of attorney's fees and costs. The agency's final compliance
report stated that it had not yet complied with the provision of the
Order relating to payment of back pay and allowances.
In Stan Laber v. Department of the Army, EEOC Petition No. 04A00020
(Jan. 23, 2002), the Commission directed the agency to accomplish the
following:
1. With regard to Paragraph A of the Order in EEOC Request No. 05990372
(Placement in GS-11 Industrial Specialist position in Israel), we direct
the agency to provide petitioner return rights to his position with the
Defense Logistics Agency upon his completion of his current assignment
in Germany, and also provide that the date for computation of benefits is
made retroactive to the date he would have begun the position in Israel,
which shall be determined by the agency to be no earlier than March 1,
1990 but no later than July 30, 1990; and
2. With regard to Paragraph B of the Order in EEOC Request No. 05990372
(Back Pay, Interest, and Benefits), the agency is directed to conduct
a supplemental investigation on the subject of back pay, addressing
the following and providing a full explanation with regard to its
denial of back pay to petitioner, including, but not limited to: (a)
the methodology used to establish petitioner's earnings after he was
not selected for the position at issue; and (b) whether amounts for
overtime, compensatory time and other benefits such as Sunday premium
pay were included in the determination that petitioner was not entitled
to back pay.
On February 26, 2002, the agency responded. The agency contended that it
has no authority to provide return rights to petitioner's former position
with the Defense Logistics Agency (DLA) or with the Defense Contract
Management Agency (DCMA) upon completion of his current position with the
agency in Germany. The agency contended that it had no legal authority
to impose the remedy of return rights on either the DLA or the DCMA,
as these agencies were not parties to the complaint, nor did they have
any involvement in the case. Further, the agency alleges that it was
incumbent on petitioner to negotiate a return rights agreement to either
the DLA or DCMA if he wanted to return after his overseas assignment, but
he failed to do so. In response, petitioner filed the instant petition
requesting clarification as to whether he was entitled to return rights.
In its March 29, 2002 response, the agency contended that it is in full
compliance.<2>
Initially, we address the parties' contentions regarding the issue of
return rights.<3> In EEOC Petition 04A00020, the Commission determined
that in order to remedy the discrimination by the agency in 1990, the
agency must provide petitioner with return rights to a position with the
DLA, petitioner's former employer, upon completion of his then-current
assignment with the agency in Germany. We did not find that petitioner
would have been eligible for a return to the DLA through the DOD's
Priority Placement Program (PPP), as there was no evidence to suggest
that this eligibility was available to petitioner in 1990.<4>
However, after consideration of the agency's response to the instant
petition for clarification, we agree with the agency that there is
insufficient evidence in the record to find that had petitioner been
offered the position in Israel in 1990, he would have been given return
rights to a position with the DLA. As stated by the agency, return
rights were to be determined between petitioner and the DLA prior to
his leaving employment with that agency. The evidence suggests that
if petitioner sought return rights to the DLA or another DOD agency, he
was obligated to negotiate a return rights agreement with the DOD or DLA
prior to accepting employment with the Department of the Army, which he
did not do. In the absence of any documentation of a negotiated return
rights agreement between petitioner and the DLA, we cannot find that
petitioner is entitled to such rights, and cannot compel the agency to
place petitioner in a position with the DLA absent any contrary evidence.
In light of the arguments made by the agency, and in the absence of
contrary evidence presented by petitioner, the Commission now finds
that it was an error to direct the agency to provide petitioner with
return rights to his former position with the DLA upon completion of his
assignment in Germany. However, as noted by the agency, upon completion
of petitioner's overseas tour with the agency, he will be eligible to
be placed in the DOD's PPP, returning him to the PPP region from which
he reported for his overseas duty.<5>
Further, upon review, the Commission finds that the agency is in
compliance with the Order set forth in Stan Laber v. Department of
the Army, EEOC Appeal No. 01973838 (December 22, 1998) request for
reconsideration denied, EEOC Request No. 05990372 (April 10, 2000).
The Commission finds that the agency provided adequate evidence in its
response to petitioner's petition for clarification that it complied
with the Commission's order regarding the calculation of any back pay
which would have been owed to petitioner. The agency stated in its most
recent compliance report that petitioner was not entitled to back pay,
as he suffered no loss of base pay due to his non-selection for the
position in Israel. The agency stated that the position offered in
Israel was a two-year position at the GS-11 level, and petitioner was a
GS-12/Step 10 when he applied for the position. The agency then stated
that it conducted a pay comparison for the positions and determined that
petitioner made $2,381.12 more in base pay at his position with the DLA
than he would have made at the GS-11 level in Israel. In addition, the
agency stated that as the position in Israel was for only two years and
he would not have been employed in Israel beyond 1992, it was impossible
for him to ever make more in salary in Israel than he would have in his
DLA position. Specifically addressing the Order in Petition No. 04A00020,
the agency stated that it considered the issues of overtime, compensatory
time and other benefits such as Sunday premium pay, and found that
petitioner was entitled to compensation for Sunday premium pay in
the amount of $4,883.38, plus interest in the amount of $6,124.55.
The agency enclosed a Leave and Earnings statement establishing
that petitioner received payment for these amounts on June 13, 2002.
The agency then found that petitioner was not entitled to compensation
for Post Allowances, premium payment for living in difficult locations
or compensatory damages, as the act of discrimination took place in 1990,
prior to passage of the Civil Rights Act of 1991.
Based on our review of the record, the Commission grant's petitioner's
Petition for Clarification of the Order in Stan Laber v. Department of
the Army, EEOC Petition No. 04A00020 (Jan. 23, 2002). For the foregoing
reasons, the Order in EEOC Petition No. 04A00020 is no longer in effect.
The Commission further finds that the agency has fully complied with the
Commission's Order in Stan Laber v. Department of the Army, EEOC Appeal
No. 01973838 (December 22, 1998) request for reconsideration denied,
EEOC Request No. 05990372 (April 10, 2000).
PETITIONER'S RIGHT TO FILE A CIVIL ACTION (P0900)
This decision of the Commission is final, and there is no further right
of administrative appeal from the Commission's decision. 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.
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
March 10, 2003
__________________
Date
1 In EEOC Request No. 05990372, the Commission found that complainant's
concerns about the agency's noncompliance were speculative.
2 The record before us contains the appellate case file, the compliance
file and further documents from the agency and petitioner.
3 Return rights can be granted to employees of the Department of Defense
(DOD) pursuant to 10 U.S.C � 1586, and state that the Secretary of
Defense and the Secretary of each military department �may� establish
policies providing for the return of an employee to the grade and position
held before acceptance of an assignment outside of the United States.
The agency contends that DOD employees must negotiate return rights
with their U.S.-based employer before accepting an overseas position,
or if the employee does not have return rights at the end of his/her
overseas assignment, the employee is enrolled in the DOD Priority
Placement Program.
4 The Commission notes that prior to accepting the agency's offered
position in Germany in 2000, petitioner was employed with the DCMA in
Chicago, Illinois. Thus, petitioner left employment with the DCMA to
return to employment with the Department of the Army.
5 We note that the agency offered petitioner a temporary promotion for a
period not to exceed four (4) years at an ONOCUS Army activity in Alaska
following his assignment in Germany, and petitioner tentatively accepted
the agency's offer.