05a50685
04-26-2005
Juan A. Garcia, Complainant, v. Michael Chertoff, Secretary, Department of Homeland Security, Agency.
Juan A. Garcia v. Dept. of Homeland Security
05A50685
April 26, 2005
.
Juan A. Garcia,
Complainant,
v.
Michael Chertoff,
Secretary,
Department of Homeland Security,
Agency.
Request No. 05A50685
Appeal No. 01A32050
Agency No. I-95-6233, I-96-6869 et al.
DENIAL
The complainant requested reconsideration of the decision in Juan
A. Garcia v. Dept. of Homeland Security, EEOC Appeal No. 01A32050
(January 7, 2005). 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).
By regulation, requests must be filed within thirty (30) calendar days
after the party receives the previous decision. 29 C.F.R. � 1614.405(b).
A document is timely if it is received or postmarked before the expiration
of the applicable filing period or, in the absence of a legible postmark,
if it is received by mail within five days of the expiration of the
applicable filing period. 29 C.F.R. � 1614.604(b).
It is noted that the Commission's previous decision included a
Certificate of Mailing indicating that, for purposes of timeliness,
the Commission will presume that the decision was received within
five (5) calendar days of the date on which it was mailed, January 7,
2005. Complainant is presumed to have received the previous decision
no later than January 12, 2005. Thirty days from that date is February
11, 2005. As evidenced by the post mark date, Complainant mailed his
request on March 23, 2005. which was beyond the 30-day limit set by
regulation. Complainant asserts that his wife was hospitalized and
provides documentation showing that she was hospitalized on January 24,
2005 (a simple patients rights and responsibilities sheet was submitted)
and had a physical examination in the emergency room on February 13,
2005 (the bill was submitted). Although complainant also provided
information that he was admitted to the hospital on March 15, 2005,
he did not provide anything to show that he was so incapacitated during
the relevant time period, that he was unable to timely file his request.
For the foregoing reasons, the Complainant's request is denied. The
decision in EEOC Appeal No. 01A32050 remains the Commission's final
decision. There is no further right of administrative appeal on the
decision of the Commission on this request. The agency is directed to
comply with the Order as set forth below.
ORDER (D0403)
The agency is ordered to take the following remedial action:
Within sixty (60) days of this decision becoming final, the agency
is ordered to offer complainant the Supervisory Border Patrol Agent
(Chief Patrol Agent) position, GS-1896-14, in the Spokane sector, or
a substantially equivalent position. Complainant shall have fifteen
(15) calendar days from receipt of the offer to accept the offer.
Failure to accept the offer within the 15-day period shall be considered
a declination of the offer, unless complainant can show that circumstances
beyond his control prevented a response within the time limit. The agency
shall award complainant back pay, interest, and benefits from the date
S3 was placed in the position.
The agency shall offer complainant the next available 30-day acting
Assistant Regional Director position.
The issue of compensatory damages is REMANDED to the agency. The agency
shall conduct a supplemental investigation addressing the amount of
compensatory damages to be awarded complainant. The agency shall
give complainant a notice of his right to submit objective evidence
(pursuant to the guidance given in Carle v. Department of the Navy,
EEOC Appeal No. 01922369 (January 5, 1993)) and request objective
evidence from complainant in support of his request for compensatory
damages within forty-five (45) calendar days of the date complainant
receives the agency's notice. No later than ninety (90) calendar days
after the date that this decision becomes final, the agency shall issue
a final agency decision addressing the issues of compensatory damages.
The agency shall submit a copy of the final decision to the Compliance
Officer at the address set forth below.
Within forty five (45) days of this decision becoming final, the agency
shall take corrective, curative and preventive action to ensure that
discrimination does not recur, including but not limited to providing
training to the responsible official(s)<1> at the McAllen, Texas facility
in the law against employment discrimination, to include training in
EEOC regulations concerning the maintenance of records under 29 C.F.R. �
1602.14. Within thirty (30) calendar days of the date the training is
completed, the agency shall submit to the Compliance Officer appropriate
documentation evidencing completion of such training.
The agency shall consider taking disciplinary action against the
management official identified as SO2. The agency shall report
its decision. 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.
The agency shall determine the appropriate amount of back pay, with
interest, and other benefits due complainant, pursuant to 29 C.F.R. �
1614.501, no later than sixty (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 sixty (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."
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 of the
agency's calculation of backpay and other benefits due complainant,
including evidence that the corrective action has been implemented.
POSTING ORDER (G0900)
The agency is ordered to post at its McAllen, Texas 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.
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.
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
April 26, 2005
__________________
Date
POSTED BY ORDER OF THE
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
An Agency of the United States Government
This Notice is posted pursuant to an Order by the United States Equal
Employment Opportunity Commission dated which found that a
violation of the Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. � 2000e et seq., (Title VII), has occurred at this facility.
Federal law requires that there be no discrimination against any employee
or applicant for employment because of the person's RACE, COLOR, RELIGION,
SEX, NATIONAL ORIGIN, AGE, or DISABILITY with respect to hiring, firing,
promotion, compensation, or other terms, conditions or privileges of
employment. The Department of Homeland Security confirms its commitment
to comply with these statutory provisions.
The Department of Homeland Security supports and will comply with such
Federal law and will not take action against individuals because they
have exercised their rights under law.
The Department of Homeland Security has been found to have discriminated
against an employee when he was not selected for a Supervisory Border
Patrol Agent (Chief Patrol Agent) position and was not selected for a
temporary position as acting Assistant Regional Director. The Department
of Homeland Security has been ordered to offer the affected employee
placement in a comparable position, consider payment of compensatory
damages, and provide training regarding reprisal under Title VII
to appropriate managers. The Department of Homeland Security will
ensure that officials responsible for personnel decisions and terms and
conditions of employment will abide by the requirements of all Federal
equal employment opportunity laws.
The Department of Homeland Security will not in any manner restrain,
interfere, coerce, or retaliate against any individual who exercises his
or her right to oppose practices made unlawful by, or who participates
in proceedings pursuant to, Federal equal employment opportunity law.
_______________________________
Date Posted: ____________________
Posting Expires: ________________
29 C.F.R. Part 16141We note that the record shows that the selecting
official identified as SO1 in this decision no longer works at the agency.