William J. Hagerty, Complainant,v.Dr. Donald C. Winter, Secretary, Department of the Navy, Agency.

Equal Employment Opportunity CommissionFeb 8, 2007
0520070213 (E.E.O.C. Feb. 8, 2007)

0520070213

02-08-2007

William J. Hagerty, Complainant, v. Dr. Donald C. Winter, Secretary, Department of the Navy, Agency.


William J. Hagerty,

Complainant,

v.

Dr. Donald C. Winter,

Secretary,

Department of the Navy,

Agency.

Request No. 0520070213

Appeal No. 0720060084

Hearing No. 160-2005-00557X

Agency No. 0400102006

DENIAL

The agency timely requested reconsideration of the decision in William

J. Hagerty v. Department of the Navy, EEOC Appeal No. 0720060084 (November

13, 2006). EEOC Regulations provide that the Commission may, in its

discretion, grant a request to reconsider any previous Commission decision

where the requesting party demonstrates 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. See 29 C.F.R. � 1614.405(b).

On request, the agency states that the Commission's previous decision

erroneously ordered the agency to calculate interest on the award

of back pay although interest was not an available ADEA remedy for

a federal employee. The Commission notes that in numbered paragraph

2 of the previous decision, the Commission's previous Order provides

that the agency shall provide complainant with "appropriate" back pay

with interest pursuant to 29 C.F.R. �1614.501. Since the Commission,

pursuant to the foregoing cited regulation, has long recognized that

interest on an award of back pay is not a remedy available under the

ADEA, we do not find the previous decision erroneous. See Whalen

v. Department of Interior, EEOC Appeal No. 07A20049 (November 5, 2003)

(citing Ryan, Jr. v. Department of Defense, EEOC Petition No. 04960005

(Nov. 7, 1996)). Therefore, the Commission never intended to order

interest on the back pay. We will, nevertheless, clarify the matter in

the Order to leave out the reference to interest.

After reconsidering the previous decision and the entire record, the

Commission finds that the request fails to meet the criteria of 29

C.F.R. � 1614.405(b), and it is the decision of the Commission to deny

the request. The decision in EEOC Appeal No. 0720060084 remains the

Commission's final decision, with a slight modification of the Order.

There is no further right of administrative appeal on the decision of

the Commission on this request. The agency shall comply with the Order

as set forth below.

ORDER

We Order the agency to take the following actions:

1. Within 30 days of the date this decision becomes final, the

agency shall promote complainant to the Supervisory Industrial Engineer,

GS-0896-13 position or a substantially equivalent position, effective

to the date of the selectee's selection.

2. Within 60 days of the date this decision becomes final, the agency

shall also provide complainant with appropriate back pay from the date

of his promotion to GS-13 as provided by paragraph (1) of this Order.

The back pay shall be computed in the manner prescribed by 5 C.F.R. �

550.805. The agency shall determine the appropriate amount of back pay

and other benefits due complainant, pursuant to 29 C.F.R. � 1614.501, no

later than 60 calendar days after the date this decision becomes final.

The complainant shall cooperate in the agency's efforts to compute the

amount of back pay and benefits due, and shall provide all relevant

information requested by the agency. If there is a dispute regarding

the exact amount of back pay and/or benefits, the agency shall issue a

check to the complainant for the undisputed amount within 60 calendar

days of the date the agency determines the amount it believes to be due.

The complainant may petition for enforcement or clarification of the

amount in dispute. The petition for clarification or enforcement must

be filed with the Compliance Officer, at the address referenced in the

statement entitled "Implementation of the Commission's Decision."

3. Within 180 days of the date this decision becomes final,

the agency shall conduct two hours of EEO training which focuses on

the Age Discrimination in Employment Act of 1967 (ADEA), as amended,

29 U.S.C. � 621 et seq., for all supervisory officials responsible for

the discrimination found to have occurred in this case.

4. Within 180 days of the date this decision becomes final, the

agency shall consider taking appropriate disciplinary action against the

responsible management officials still employed by the agency. If the

agency decides to take disciplinary action it shall identify the action

taken. If the agency decides not to take disciplinary action, it shall set

forth the reason(s) for its decision not to impose discipline. If any of

the responsible management officials have left the agency's employment,

then the agency shall furnish documentation of their departure date(s).

The agency shall send evidence that they have complied with provisions

1 - 4 of this Order to the Compliance Officer as referenced herein.

POSTING ORDER (G0900)

The agency is ordered to post at its the Portsmouth Naval Shipyard,

Portsmouth, New Hampshire 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.

COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (R0900)

This is a decision requiring the agency to continue its administrative

processing of your complaint. However, if you wish to file a civil

action, you have the right to file such action in an appropriate United

States District Court within ninety (90) calendar days from the date

that you receive this decision. 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 filed your appeal with the

Commission. 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. 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 8, 2007

__________________

Date

4

0520070213

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P. O. Box 19848

Washington, D.C. 20036