04A00010
09-30-2003
Antonio Vereb, Petitioner, v. Tom Ridge, Secretary, Department of Homeland Security (Immigration and Naturalization Service), Agency.
Antonio Vereb v. Department of Homeland Security (Immigration and
Naturalization Service)
04A00010
09-30-03
.
Antonio Vereb,
Petitioner,
v.
Tom Ridge,
Secretary,
Department of Homeland Security<1>
(Immigration and Naturalization Service),
Agency.
Petition No. 04A00010
Petition No. 04980008
Appeal No. 01945011
Agency No. I-92-6170
DECISION ON PETITION FOR ENFORCEMENT
The Commission has docketed the above-captioned matter to review
compliance with its decisions in Antonio Vereb v. Janet Reno, Attorney
General, Department of Justice (Immigration and Naturalization Service),
in EEOC Petition No. 04980008 (February 26, 1999) and EEOC Appeal
No. 01945011 (January 26, 1996). Pursuant to the order in EEOC Appeal
No. 01945011, the Commission directed the Immigration and Naturalization
Service (hereinafter referred to as the agency) to redress petitioner
following a finding that agency officials had discriminated against
petitioner on the basis of sex in violation of Title VII of the Civil
Rights Act of 1964, as amended, 42 U.S.C. �2000e et seq. Pursuant to our
order in EEOC Petition No. 04980008, we directed the agency to explain
its back pay calculations to petitioner and to conduct a supplemental
investigation as to why petitioner was not placed in the position.
This petition for enforcement is governed by the Commission's regulations,
29 C.F.R. � 1614.503. For the reasons that follow, we find that the
agency has complied with the Order in EEOC Appeal No. 01945011.
In EEOC Appeal No. 01945011 (January 26, 1996), the Commission found that
the agency discriminated against petitioner on the basis of sex when it
did not select him for the position of Immigration Inspector, GS-5/7,
on April 10, 1992. The Commission ordered, inter alia, at Paragraph A,
that the agency take remedial action to promote petitioner to the position
of Immigration Inspector, GS-7, retroactive to February 14, 1992, and, at
Paragraph B, to pay appropriate back pay, with interest, and benefits.<2>
Thereafter, petitioner's counsel informed the Commission that only three
matters remained: the agency had not (a) provided a breakdown for the
back pay payment to petitioner; (b) demonstrated contribution to his
retirement as required by Appendix A, 29 C.F.R. Part 1613; and (c) placed
petitioner in the position. Because the record before us was incomplete,
we required the agency to (1) provide petitioner an explanation of
the calculations for back pay and benefits; (2) conduct a supplemental
investigation as to why petitioner was not placed in the position; and (3)
conduct a supplemental investigation to determine whether an equivalent
position was available. EEOC Petition No. 04980008 (February 26, 1999).
The agency provided documentation affording petitioner an explanation
of its calculations for back pay, with interest, and benefits, showing
payment for the period from February 14, 1992, through October 27,
1997. The agency also submitted a status report of all agency positions,
showing that no equivalent positions were vacant or otherwise available.
With regard to (2), above, the record shows that the agency offered
petitioner the position subject to physical/medical clearances.
On October 27, 1997, the agency withdrew its offer of employment, having
determined that petitioner was ineligible because of medical reasons, in
that, his hearing level, even with hearing aids, did not meet established
medical criteria for incumbents to the position.<3>
The agency provided medical reports showing the results of several hearing
tests taken by petitioner, including a determination by a U.S. Public
Health Service physician and a test by petitioner's private physician,
demonstrating that petitioner's hearing, even with hearing aids, did not
meet the level required for the position. The agency provided copies of
its regulations showing that OPM had authorized establishment of medical
criteria for certain agency positions and the medical criteria for the
position of Immigration Inspector, including the hearing requirements
for the position. This information showed the standard for acceptable
hearing levels in both ears, i.e., an applicant's hearing should not
exceed 30 decibels below the 2000 hertz range
or exceed 40 decibels at the 3000 hertz range utilizing a standard
"pure tone audiogram." The results of petitioner's several hearing
tests showed that petitioner exceeded the required levels with use of
his hearing aids. The agency stated that it has never granted a waiver
for these requirements. Finally, the agency submitted documentation
demonstrating that it had searched for an equivalent position for
petitioner for which he was qualified and medically eligible but that
no position was available for him.
Petitioner did not respond to the agency's submissions or to the notice
docketing the instant matter. The agency did not provide comments in
response to the instant notice.
Where discrimination has been found, the Commission orders corrective
action to make a complainant whole, that is, to restore him or her to the
position that s/he would have been in were it not for the discriminatory
conduct by the agency, through such means as reinstatement, appropriate
back pay, and training for supervisors. Franks v. Bowman Transportation
Co., 424 U.S. 747, 764 (1976); see also Albemarle Paper Co. v. Moody, 422
U.S. 405, 418 (1975). Based on correspondence contained in the record
before us as well as documents submitted to the Compliance Officer,
we conclude that the matters identified, above, by petitioner's counsel
have been resolved and that the agency has fully complied with our Orders
in EEOC Appeal No. 01945011 and EEOC Petition No. 04980008.
The agency submitted documentation demonstrating that it provided a full
explanation of its calculations for back pay, all employment benefits,
including retirement benefits, and interest payments to petitioner.
Petitioner has not disputed the agency's calculations, and our review
indicates that petitioner has been made whole with regard to back pay
and benefits. We find therefore that the agency has complied with
Paragraph B of our Order.
According to the record before us, on October 27, 1997, petitioner
was deemed ineligible for the position of Immigration Inspector for
medical reasons, specifically, he failed the hearing tests. Tests were
conducted by two physicians, including petitioner's private physician,
showing that petitioner's hearing, even with hearing aids, did not
meet the level required for the position. The medical criteria for
this position requires acceptable hearing levels in both ears and the
reports of petitioner's hearing tests show that he did not meet the
established standards. In addition, the agency submitted documents
showing that it conducted a search for an equivalent position for
petitioner but found none. Based on our review of the entire record,
including material submitted in response to EEOC Petition No. 04980008,
we find that the agency has complied with Paragraph A of our Order.
CONCLUSION
Based upon a review of the record, the Commission finds that the agency
has complied with the Orders in Antonio Vereb v. Janet Reno, Attorney
General, Department of Justice (Immigration and Naturalization Service),
EEOC Appeal No. 01945011 (January 26, 1996) and EEOC Petition No. 04980008
(February 26, 1999).
STATEMENT OF PETITIONER'S RIGHTS
PETITIONER'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 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 (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 Hadden, Director
Office of Federal Operations
_09-30-03_________
Date
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing. I certify that
the decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
___________
Date
______________________
1The Commission notes that the complaint initially was filed against
the Department of Justice. During the pendency of these proceedings,
however, responsibility for the Immigration and Naturalization Service
was transferred to the Department of Homeland Security.
2In addition, the agency was ordered to afford petitioner an opportunity
to show entitlement to compensatory damages, provide training for
managers, report on its compliance, post a notice, and pay reasonable
attorney's fees. The agency has shown its compliance with these portions
of the Commission's Order, and they are not at issue. Petitioner's appeal
from the agency's decision awarding compensatory damages was addressed
in EEOC Appeal No. 01990136 (June 11, 1999).
3At the time of the discriminatory event in 1992, Immigration Inspectors
were allowed to qualify for the position using hearing aids; thus,
petitioner was tested with his aids. Hearings aids were disqualifying
as of April 1996.