0520120099
09-27-2012
Manuel Rodriguez, Complainant, v. Janet Napolitano, Secretary, Department of Homeland Security (Immigration and Customs Enforcement), Agency.
Manuel Rodriguez,
Complainant,
v.
Janet Napolitano,
Secretary,
Department of Homeland Security
(Immigration and Customs Enforcement),
Agency.
Request No. 0520120099
Appeal No. 0120093533
Agency No. HS-05-ICE-000716
DENIAL
The Agency timely requested reconsideration of the decision in Manuel Rodriguez v. Department of Homeland Security, EEOC Appeal No. 0120093533 (October 7, 2011). 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).
Complainant, a GS-13 Supervisory Detention and Deportation Officer at the Agency's Miami, Florida facility alleged that the Agency retaliated against him for engaging in EEO activity when: (1) it charged him Absent Without Leave (AWOL), (2) issued him a notice of 10-Day Suspension, (3) reassigned him to the Institutional Removal Program (IRP), (4) failed to select him for a GS-13 Supervisory Detention and Deportation Officer position; and (5) involuntarily reassigned him to the Krome Processing Center.
The facts and procedural background are set forth in the previous decision and are incorporated herein by reference. We note the following salient facts: the Agency issued a final decision which found that Complainant failed to prove that the Agency subjected him to discrimination as alleged. The Commission however affirmed the Agency's finding of no discrimination for claim 5, because all employees were reassigned to the Krome Processing Center. With respect to the remaining claims, the Commission found that for claims (1) and (2), the Agency's explanation for charging Complainant with AWOL and suspending him for 10 days was not persuasive. The record supported Complainant's statement that he called and spoke with a supervisor, albeit, not his immediate supervisor, which was an accepted practice at the facility for requesting emergency leave. Further, the record showed that Complainant's suspension was unprecedented and the second-longest suspension from 2002 - 2005.
With respect to claim (3), the Commission noted that the Agency maintained that Complainant was reassigned to non-supervisory duties because he was the subject of an internal investigation. However, the Commission did not find the Agency's position credible as the record was devoid of any evidence, i.e., investigative inquiries, investigative reports, or statements from officials involved in the investigation. Thus, the previous decision found that the Agency's explanation for reassigning Complainant to non-supervisory duties was also unworthy of belief.
Finally, regarding claim (4) the previous decision noted that the selection panelists inexplicably failed to specify whether they were aware of Complainants previous EEO activity. Moreover, the Agency failed to rebut Complainant's allegation that his first-line supervisor (S1) and second-line supervisor (S2) were aware of and involved in his previous EEO activity when they requested that his name be removed from the list of finalists for the position.
The Commission ordered the Agency to: (1) offer Complainant the position of GS-13 Supervisory Detention and Deportation Officer in Miami, or a substantially equivalent position; (2) award Complainant back pay, with interest and all benefits due from the date the selectee assumed the subject GS-13 Supervisory Detention and Deportation Office position until the date Complainant either assumes or declines the position; (3) conduct a supplemental investigation to determine Complainant's entitlement to compensatory damages; (4) expunge the AWOL charge, letter of proposed 14-day suspension, and 10-day suspension from all records; (5) restore any leave deducted from his leave balance attributed to the AWOL charge and suspension, and compensate him for any lost wages and benefits suffered during the suspension period; (6) if Complainant declined the offered position, the Agency was to restore Complainant's supervisory duties and return him to the unit he was assigned to prior to July 2005; (7) management officials were to be trained with special emphasis on preventing and eliminating retaliation; (8) the Agency had to consider taking disciplinary action against all responsible management officials; and (9) the Agency was ordered to submit a report of compliance.
REQUEST FOR RECONSIDERATION
In the Agency's request for reconsideration the Agency argues that with respect to claim 3, Complainant's reassignment to the IRP Unit was appropriate as two internal investigations into his conduct was being conducted. With respect to claim 4, the Agency argues that Complainant's non-selection was appropriate, as he was already a supervisor and the position was to bring new people into supervisory positions. Finally, the Agency argues that the Commission's decision ordering the Agency to offer Complainant a GS-13 supervisory position in Miami or a substantially similar position is moot given the Commission's finding in Rodriguez v. Department of Homeland Security, EEOC Appeal No. 0120091712 (July 6, 2010), upholding Complainant's removal on February 4, 2008. The Agency argues that returning Complainant to duty after his removal which was based on ethical violations would have a substantial impact on the operations of the Agency. The Agency requested that the Commission reconsider or clarify a portion of its Order of relief in light of the Commission's finding that his removal from his position was not discriminatory.
Further, the Agency argues that back pay is unnecessary in this case because Complainant remained a GS-13 until he was removed on February 4, 2008. The Agency maintains that even if Complainant had been selected for the position his pay would not have changed because the position he encumbered and the position at issue were both at the GS-13 level. Thus, Complainant's non-selection did not result in any loss of pay between his non-selection in 2005 and his removal in 2008. Therefore, Complainant is not entitled to any back pay with respect to his non-selection and the Order should be modified accordingly.
In response, Complainant opposes any reconsideration of the previous decision, as the decision is substantiated by the record and not clearly erroneous. Complainant contends that the Commission's decision finding retaliatory discrimination in 2005 does not conflict with his subsequent 2008 removal. Complainant also opposes the Agency's request for a modification of the Commission's Order because the discriminatory conduct occurred years earlier and but for the discriminatory actions of the Agency his termination might not have occurred.
Complainant also maintains that the Agency's claim that he was already a GS-13 supervisor and therefore not entitle to back pay is flawed. Complainant contends that he has additional evidence which supports his contention that he was subjected to reprisal in 2005, as he alleged.
FINDINGS AND ANALYSIS
We remind the Agency that a "request for reconsideration is not a second appeal to the Commission." Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110) (rev. Nov. 9, 1999), at 9-17. A reconsideration request is an opportunity to demonstrate that the previous decision involved a clearly erroneous interpretation of material fact or law; or (2) will have a substantial impact on the policies, practices, or operations of the Agency. Here, we find no evidence that the Agency has met the criteria for reconsideration.
With respect to the appellate decision, the Commission finds that the evidence supports the finding that Complainant was subjected to reprisal with respect to claims 1 through 4 but not claim 5. The Commission, however, on its own motion will modify the previous decision's Order to reflect the fact that Complainant is no longer an employee of the Agency as set forth in EEOC Appeal No. 0120091712 (July 6, 2010). Specifically, the Commission finds that while it is true that the evidence shows that Complainant was subjected to reprisal discrimination which lead to his nonselection in 2005, the Commission's subsequent decision found that his removal from the Agency did not involve reprisal.
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. Accordingly, the decision in EEOC Appeal No. 0120093533, as MODIFIED by this decision, 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) calendar days of the date of this decision, the Agency is ordered to take the follow actions:
1. The Agency shall retroactively place Complainant in the position of GS-1801-13 Supervisor Detention and Deportation Officer in Miami, or a substantially equivalent position, that he would have occupied had he been selected in 2005.
2. The Agency shall award Complainant back pay, with interest, and all benefits due from the date the selectee assumed the subject GS-13 Supervisor Detention and Deportation Officer position until the date of Complainant's removal from the Agency. 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. 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. 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 shall provide Complainant back pay, with interest and other benefits due Complainant.
3. The Agency shall conduct a supplemental investigation to determine Complainant's entitlement to compensatory damages and shall issue him a written decision on his entitlement to compensatory damages, appealable to this Commission.
4. The Agency shall expunge the AWOL charge, letter of proposed 14-day suspension, and 10-day suspension from all records.
5. The Agency shall restore to Complainant any leave deducted from his leave balance attributable to the AWOL charge and suspension, and compensate him for any lost wages and benefits suffered during the suspension period.
6. The Agency shall provide at least 16 hours of EEO training to all management officials in its Miami facilities regarding their responsibilities to ensure equal employment opportunities and the elimination of discrimination in the federal workplace. The training shall place special emphasis on preventing and eliminating retaliation. The Commission does not consider training to be disciplinary action.
8. The Agency shall consider taking appropriate disciplinary action against all responsible management officials in this case and 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 not doing so with specificity.
9. 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 and evidence that the corrective action has been implemented.
POSTING ORDER (G0610)
The Agency is ordered to post at its Miami, Florida 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 (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.
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (R0610)
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 (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
__9/27/12________________
Date
2
0520120099
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0520120099