04A30031
07-22-2003
Wilma J. Hunter, Petitioner, v. R. L. Brownlee, Acting Secretary, Department of the Army, Agency.
Wilma J. Hunter v. Department of the Army
04A30031
July 22, 2003
.
Wilma J. Hunter,
Petitioner,
v.
R. L. Brownlee,
Acting Secretary,
Department of the Army,
Agency.
Petition No. 04A30031
Appeal No. 01994517
Agency No. 09412E0770
EEOC Hearing No. 100-96-7279
DECISION ON A PETITION FOR ENFORCEMENT
On May 16, 2003, the Equal Employment Opportunity Commission (EEOC
or Commission) docketed a petition for enforcement to examine the
enforcement of an order set forth in Wilma J. Hunter v. Department
of the Army, EEOC Appeal No. 01994517 (May 11, 2001). In EEOC Appeal
No. 01994517, the Commission found that the petitioner had been subjected
to a hostile work environment based on race. The agency was ordered to
provide back-pay representing the difference between the GS-5 pay and
GS-9 pay, with interest, including any increases in pay and set raises,
retirement benefits (if applicable), and any other benefits to which she
would have been entitled, for the period April 1989 through April 1990.
Petitioner contends that the agency failed to fully comply with the
Commission's order to provide all of the benefits to which she would
have been entitled. Specifically, the petitioner contends that the agency
failed to provide payment for the overtime hours at the GS-9 rate which
complainant worked for the period April 1989 through April 1990.
We find that the agency erred when it did not provide an accounting of the
overtime that the petitioner worked during the relevant period. Because
the record does not provide contemporaneous time records to document
the actual amount of overtime worked (if any), we direct the agency to
address this oversight and pay the complainant for the hours that she
earned. Accordingly, the Commission grants the petition for enforcement
with regard to the issue of overtime relief and we remand for the
following relief.
ORDER (C0900)
To the extent that the agency has not done so already, the agency is
ordered to take the following remedial action:
Within sixty days (60) from the date of this decision which is the final
decision, the agency shall determine the appropriate award of overtime
due petitioner, or otherwise reach agreement with the petitioner,
and pay the petitioner the agreed upon overtime fees, plus interest.
The agency is further directed to submit a report of compliance, as
provided in the statement entitled "Implementation of the Commission's
Decision." The report shall include supporting documentation verifying
that the corrective action has been implemented.
ATTORNEY'S FEES (H0900)
We note that petitioner received a May 22, 2003 decision regarding her
appeal of the agency's decision on attorney's fees. If complainant
has been represented by an attorney (as defined by 29 C.F.R. �
1614.501(e)(1)(iii)), he/she is entitled to an award of reasonable
attorney's fees incurred in the processing of this petition for
enforcement. 29 C.F.R. � 1614.501(e). The award of attorney's fees shall
be paid by the agency. The attorney shall submit a verified statement of
fees to the agency -- not to the Equal Employment Opportunity Commission,
Office of Federal Operations -- within thirty (30) calendar days of this
decision becoming final. The agency shall then process the claim for
attorney's fees in accordance with 29 C.F.R. � 1614.501.
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 (P0900)
This decision of the Commission is final, and there is no further right
of administrative appeal from this 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
July 22, 2003
________________
Date