This EEOC Claim awarding reinstatement gives us an insite on what happens when the federal agency does not comply with the administrative judges final order.
Just because you have an award, it does not always mean you get the award, unless you continue to challenge the agency in court.
Wrongful termination and reinstatement
There are many things to learn from this EEOC claim, especially if you’ve been wrongfully terminated. One reason its important, is your file must be corrected once you are reinstated, and I’m not referring to your current employment folder, but the one that was archived.
The agency further asserts that in order to fully comply with provisions 1, 2 and 3 of the order, it became necessary to request complainant’s Official Personnel Folder (OPF) from the National Personnel Records Center due to the amount of time since complainant’s removal. The agency indicates that complainant’s OPF was requested on March 15, 2007.
Payment delays due to banking information errors
Many changes occur in a persons life over the course of trying to either sustain yourself while fighting a wrongful termination or moving on to other employment opportunities. One thing likely to change is changing banks. Luckily for the complainant, the federal agency only took about one month to notify the complainant to correct the banking information.
Paul Loomis,
Petitioner,
v.
Michael Chertoff,
Secretary,
Department of Homeland Security,
Agency.
Appeal No. 0120071945
Agency Nos. TSAF040353, TSAF04691
Hearing No. 340-2005-00070x
DECISION
Complainant timely initiated an appeal from the agency’s final order
concerning his equal employment opportunity (EEO) complaint of unlawful
employment discrimination in violation of Title VII of the Civil Rights
Act of 1964 (Title VII), as amended, 42 U.S.C. § 200e et seq. The appeal
is accepted pursuant to 29 C.F.R. § 1614.405.
On November 13, 2006, the agency’s Final Order fully implemented
a decision by an EEOC Administrative Judge (AJ) following a hearing
pursuant to a complaint of discrimination alleging that complainant was
discriminated against on the basis of reprisal (prior EEO activity) when
he was placed on administrative leave on April 1, 2004 and terminated
from his position with the agency on May 21, 2004.
The agency implemented the following order:
1. The Agency shall offer complainant reinstatement into his former
position, or one equal to it, and provide him back pay, minus any
mitigation for his subsequent employment. Because this case involved
a termination action, and [the AJ] ordered reinstatement, the Agency
shall provide the required interim relief even pending an Appeal of
this decision. See, 29 C.F.R. § 1614.505.
2. The Agency shall restore all annual and sick leave that would have
accumulated for Complainant during the period from his termination through
the time he is reemployed and provide him with any other equitable remedy
to which he would otherwise be entitled had he not been subjected to
unlawful reprisal.
3. The Agency shall compensate the Complainant for non-pecuniary damages
in the amount of $45,000.00.
4. The Agency shall compensate the Complainant for pecuniary damages in
the amount of $255.00.
5. The Agency shall ensure that the relevant management officials [named
individuals], who were either directly or indirectly involved in the
reprisal-based decisions to terminate Complainant to undergo training
and/or disciplinary action. Such training shall include, but is not
limited to, EEO awareness training, especially focusing on reprisal.
To the extent that the Agency still has functional control over those
employees responsible for the illegal actions, the Agency shall require
these employees to attend a minimum of forty (40) hours of EEO awareness
training within one year.
6. The Agency shall prominently post at the Palm Springs International
Airport, a notice of the finding of discrimination in conformity with
Appendix A of 29 C.F.R. Part 1614. The notice shall indicate that it
is being posted pursuant to this Decision.
7. Because the Complainant is a prevailing party he is entitled to
award of reasonable attorney fees in the amount of $38,889.75 ($29,
210.00 + $7,026.25 + $1,187.50 + $1,466.00) and costs in the amount
of $1,786.92.
In a letter dated January 23, 2007, complainant, through his attorneys
notified the agency that he believed that they had not complied with
its November 13, 2006 final order. Specifically, complainant stated
that the agency had not taken any steps to implement the terms of the
AJ’s decision dated September 27, 2006 and affirmed in the agency’s
final order dated November 13, 2006. The record further indicates
that having received no response from the agency to his January 23,
2007 correspondence, complainant again contacted the agency through
correspondence dated January 29, 2007. Therein, complainant notified the
agency of his intention to file an appeal with the Commission alleging
that the agency failed to comply with its final order in this matter.
Thereafter, on March 6, 2007, the complainant filed the instant appeal.1
Therein, the complainant indicates specifically that the agency has
failed to:
1. Pay back pay and benefits, less any mitigation for subsequent
employment, to complainant.
2. Reinstate complainant to his former TSA position or one equal to it;
3. Restore all annual and sick leave that complainant would have earned
from the time of his termination to the time of his reinstatement;
4. Ensure that the relevant management officials [named individuals]
undergo training and/or disciplinary action;
5. Pay attorney’s fees of $38,889.75 and expenses of $1,786.92 to
complainant’s counsel;
6. Prominently post a notice of the AJ’s finding of discrimination in
conformity with Appendix A of 29 C.F.R. Part 1614 at the Palm Springs
International Airport.
Complainant indicates in his appeal that the agency has complied with
the provisions of the order requiring it to pay complainant $45,000.00
in compensatory damages and $255.00 in pecuniary damages.
In response to complainant’s appeal, the agency submitted some
documentation purportedly to show that it complied with the corrective
action specified in its November 13, 2006 decision. With regard
to provisions 1, 2, and 3, the agency asserts that on March 12,
2007, complainant returned to the agency his employee notifications
and benefits options/forms and security paperwork which allowed the
agency to authorize Human Resources Service (HRS) to begin processing
complainant’s reinstatement and back pay calculation with benefits
elections. The agency further asserts that in order to fully comply
with provisions 1, 2 and 3 of the order, it became necessary to request
complainant’s Official Personnel Folder (OPF) from the National Personnel
Records Center due to the amount of time since complainant’s removal.
The agency indicates that complainant’s OPF was requested on March
15, 2007.
With regard to provision 4 of the Order requiring responsible management
officials undergo training and/or disciplinary action, the agency
indicated in its response to complainant’s appeal, that training “is in
the process of being scheduled,” and that the deadline for training in
accordance with the Order is September 28, 2007.
Concerning the agency’s obligation to pay complainant’s attorney’s fees in
the amount of $38, 889.75 and costs of $1,789.92, the agency indicates
that a payment to complainant’s attorneys in the amount of $40,676.67
(fees + costs), was paid on February 21, 2007, but was returned to the
U.S. Department of the Treasury due to incorrect banking information.
The agency indicates that it informed complainant’s attorneys on March
16, 2007 that updated banking information was required before another
payment would be processed.
Finally, with regard to the agency’s obligation to post a Notice of
the AJ’s finding of discrimination in a conspicuous place at the Palm
Springs International Airport, the agency asserts that the Notice was
posted for 60 days beginning on December 14, 2006.
Reinstatement, Back-pay and Restoration of Sick and Annual Leave
Upon review of the agency’s AJ’s Order, issued on September 27, 2006 and
affirmed by the agency on November 13, 2006, we find that the agency has
failed to comply with the specific provisions thereof. The AJ’s Order
obligated the agency to reinstate complainant to his former position or an
equivalent one and to provide back pay, minus mitigation for subsequent
employment. The agency has failed to do so. It indicates that as of
March 15, 2007, it has authorized HRS to begin processing complainant’s
reinstatement. However, the agency has failed to provide the Commission
with any documentation in support of its finding of compliance with
the AJ’s Order involving reinstatement, back-pay and the restoration
of benefits. The Commission finds that the agency’s statement that it
has authorized HRS to process complainant’s reinstatement, back-pay
and restoration of annual and sick leave, while preliminary steps to
compliance, do not establish that full compliance has occurred.
Training and/or Disciplinary Action for Management Officials
The AJ’s Order regarding training and/or discipline for the responsible
Management Officials obligates the agency to comply within one year.
The agency indicates that training is “in the process of being scheduled.”
Because the AJ’s Order allows the agency until September 28, 2007, we
cannot find that the agency has failed to comply with this provision of
the Order.
Attorney’s Fees and Costs
The agency indicates that a payment of $40,676.67 (fees + costs)
was made to complainant’s attorney on February 21, 2007. However,
the agency asserts that complainant’s attorney is required to provide
correct banking information before the payment can be made. However,
the agency fails to provide any documentation in support of it claims.
In that regard, we have an inadequate basis to find that the agency has
fully complied with the AJ’s Order concerning the payment of attorney’s
fees and costs.
Notice of Discrimination
While the agency asserts that it has complied with the AJ’s Order in
this regard, there is no evidence in the record to support the agency’s
contentions. Accordingly, to the extent that it has not done so already,
the agency is ordered to comply with the AJ’s Order by completing the
posting requirements.
As set forth herein, we find that the agency is in non-compliance with
its Final Order, in part. In light of the foregoing, we hereby direct
the agency to comply with the Order below, which directs the agency, to
the extent it has not done so, to provide the relief ordered by the AJ.
If the agency does not comply, complainant may file a petition for
enforcement of the Order below, pursuant to 29 C.F.R. § 1614.503.
ORDER
To the extent that the agency has not already done so, the agency is
ordered to take the following remedial action within thirty (30) days
of the date this decision becomes final:
1. The agency shall reinstate complainant to his former position or
one equal to it, and provide him back pay, minus any mitigation for his
subsequent employment.
2. The agency shall restore all annual and sick leave that would have
accumulated for complainant during the period from his termination through
the time he is reemployed and provide him with any other equitable remedy
to which he would otherwise be entitled had he not been subjected to
unlawful reprisal.
3. The agency shall ensure that the relevant management officials who were
either directly or indirectly involved in the reprisal-based decision to
terminate complainant, to undergo training and or/disciplinary action.
Such training shall include, but it not limited to, EEO awareness
training, especially focusing on reprisal. To the extent that the agency
still has functional control over these employees responsible for the
illegal actions, the agency shall require these employees to attend a
minimum of forty (40) hours of EEO awareness training.
4. The agency shall pay complainant’s attorney’s fees in the amount of
$38,889.75 and costs in the amount of $1,786.92.
POSTING ORDER (G0900)
The agency is ordered to prominently post at the Palm Springs
International Airport, a notice of the finding of discrimination in
conformity with Appendix A of 29 C.F.R. Part 1614. The notice shall
indicate that it is being posted pursuant to this decision. 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 stems 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 required.
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.
ATTORNEY’S FEES (H0900)
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 the complaint.
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.
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 (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
June 12, 2007
__________________
Date
1 The Commission notes that complainant’s appeal is captioned as a
Petition for Enforcement. However, a Petition for Enforcement is only
available to enforce an order of the Commission itself and, therefore,
we will address complainant’s appeal as a claim regarding the agency’s
non-compliance with its own final order dated November 13, 2006.
2
0120071945
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
8
0120071945
