0520100358
09-29-2010
Luis F. Ramos, Complainant, v. Robert M. Gates, Secretary, Department of Defense, (Defense Commissary Agency), Agency.
Luis F. Ramos,
Complainant,
v.
Robert M. Gates,
Secretary,
Department of Defense,
(Defense Commissary Agency),
Agency.
Request No. 0520100358
Appeal No. 0720090055
Hearing No. 530-2008-00095X
Agency No. DECA-00047-2007
DENIAL
The agency timely requested reconsideration of the decision in Luis F. Ramos v. Department of Defense, EEOC Appeal No. 0720090055 (April 12, 2010). 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).
In its reconsideration request, the Agency stated that the appellate decision contained erroneous interpretations of fact and that the remedy makes Complainant greater than whole so it should be modified. Further, the Agency stated that Complainant failed to show that he is an individual with a disability rather than a person with a temporary impairment.
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 Agency reiterated contentions made in its appeal and that were addressed properly by the appellate decision. The decision in EEOC Appeal No. 0720090055 remains the Commission's decision. There is no further right of administrative appeal on the decision of the Commission on this request.
ORDER
Within sixty (60) days of the date this decision becomes final:
1. The agency shall offer complainant permanent employment as a Store Worker, WG-6914-04, or to a substantially equivalent position, retroactive to March 9, 2007. The offer shall be in writing and the complainant shall have thirty (30) calendar days from the date of receipt to accept or decline the agency's offer. If complainant should decline the agency's offer of reinstatement, the date of his declination shall be the end date for any back pay due complainant. The position offered shall be either: (1) located at McGuire AFB, and shall include all reasonable relocation expenses associated with the need for complainant to move back to New Jersey, or shall (2) be located at Seymour Johnson AFB. If the agency offers the position at McGuire AFB, complainant shall be provided with at least 120 calendar days to move and shall retain his current interim position at Seymour Johnson AFB during that period.
2. The agency shall provide complainant with the appropriate back pay, with interest and other benefits due complainant, for the period starting on March 9, 2007, and ending when complainant either refuses the position as prescribed in paragraph 1 of this Order or when he begins said position, pursuant to 29 C.F.R. 1614.501. 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 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 reference in the statement entitled "Implementation of the Commission's Decision."
3. The agency shall pay complainant $4,000.00 in compensatory damages.
4. The agency shall provide training to complainant's supervisor during the relevant time, as well as the Human Resources department officials involved with the termination, at the McGuire AFB Commissary regarding their responsibilities under the Section 501 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. � 791 et seq. to ensure that similar violations do not occur.
5. The agency shall post at the McGuire AFB Commissary copies of the attached notice as instructed below.
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 back pay and other benefits due complainant, including evidence that the corrective action has been implemented.
POSTING ORDER (G0900)
The agency is ordered to post at the McGuire AFB Commissary, in New Jersey, 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 (H0610)
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 (K0610)
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 77960, Washington, DC 20013. 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 (P0610)
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 (Z0610)
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 from the Court that the Court appoint an attorney to represent you and that the Court also 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 with the Court 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
September 29, 2010
__________________
Date
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0520100358
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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