Arun C. Basu, Petitioner,v.Ann M. Veneman, Secretary, Department of Agriculture, Agency.

Equal Employment Opportunity CommissionJun 27, 2001
04A00014 (E.E.O.C. Jun. 27, 2001)

04A00014

06-27-2001

Arun C. Basu, Petitioner, v. Ann M. Veneman, Secretary, Department of Agriculture, Agency.


Arun C. Basu v. Department of Agriculture

04A00014

June 27, 2001

.

Arun C. Basu,

Petitioner,

v.

Ann M. Veneman,

Secretary,

Department of Agriculture,

Agency.

Petition No. 04A00014

Appeal No. 01980299

Agency No. 970932

DECISION ON A PETITION FOR ENFORCEMENT

On March 23, 2000, the Equal Employment Opportunity Commission (EEOC or

Commission) docketed a petition for enforcement to examine the enforcement

of an order set forth in Arun C. Basu v. Department of Agriculture, EEOC

Appeal No. 01980299 (August 21, 1998). This petition for enforcement

is accepted by the Commission pursuant to 29 C.F.R. � 1614.503.

During the relevant period, petitioner was employed as a GS-15,

Sociologist at the agency's Social Sciences Institute, Natural Resources

Conservation Service (NRCS). Petitioner filed formal EEO complaints

on February 25 and May 1, 1995, (95-05-05 and 95-10-16), alleging that he

had been subjected to unlawful discrimination in hiring and promotion on

the bases of race (Asian-American), religion (Non - Christian/Hinduism),

national origin (East Asia), and in reprisal for prior EEO activity

Petitioner filed formal EEO complaints on February 25 and May 1, 1995,

(95-05-05 and 95-10-16), alleging that he had been subjected to unlawful

discrimination on the bases of race (Asian-American), religion (Non -

Christian/Hinduism), national origin (East Asia), and in reprisal for

prior EEO activity. The agency accepted petitioner's complaints for

processing, and conducted an investigation. Prior to a hearing being

held, petitioner and the agency settled the complaints on January 9, 1997.

The settlement agreement provided, in pertinent part, that:

8. [The agency] will notify [petitioner] of any Senior Executive Service

(SES) openings in National Resources Conservation Services (NRCS) and

provide [petitioner] with the opportunity to apply and/or compete for

the position vacancy.

10. [The agency] will not take retaliatory action against [petitioner].

On September 5, 1997, petitioner wrote to the agency asserting that the

agency had breached the settlement agreement by failing to inform him

of vacancies. When the agency did not respond within the 35 day time

limit specified by 29 C.F.R. � 1614.504(b), petitioner appealed to the

Commission and requested that his formal complaints be reinstated.

We found that the agency had breached the settlement agreement, holding,

in part, as follows:

the agency violated provision 8 of the settlement agreement when

it promoted an employee in May 1997, to an unannounced SES position,

without providing [petitioner] notice of the vacancy, or an opportunity

to compete for the position.

Basu v. Department of Agriculture, EEOC Appeal No. 01980299 (August

21, 1998).

As a remedy for the breach, on August 21, 1998, we ordered as follows:

The agency is ORDERED to resume processing of [petitioner's] complaints

from the point processing ceased. Specifically, the agency shall forward

[petitioner's] complaints to an EEOC administrative judge for scheduling

of a hearing.

Id.

Neither party requested reconsideration of this decision.

For reasons not explained in the record, while the appeal was pending

before the Commission, the agency undertook independently to address

petitioner's claim of settlement breach. In a decision dated August 14,

1998, the agency's Office of Civil Rights held:

We find that the agency has breached Term 8 of the settlement agreement.

The complainant has the option of having his complaints reinstated,

in which case, he must return all the benefits he received under the

settlement agreement, before processing of the complaints will proceed.

The complainant can instead ask for enforcement of the settlement

agreement, which will result in the agency informing him of all future SES

vacancies. The complainant is afforded 30 days from the date he receives

this decision to inform the agency and this office of his election.

[emphasis supplied]

In a letter dated September 9, 1998, petitioner informed the agency's

Office of Civil Rights that his �financial situation� prevented him from

pursuing reinstatement of his formal complaints, presumably because

of the agency-imposed requirement that he return the benefits he had

received under the settlement agreement. Instead, he opted for future

enforcement of the January 9, 1997 settlement agreement.

On September 11, 1998,<1> petitioner wrote to the Commission informing

us of his decision not to have his formal complaints reinstated but also

adding �I am looking forward to the scheduled date of my hearing before

an EEOC administrative judge in this matter.�

Between September 11, 1998 and the present, petitioner has written

additional letters to the Commission asserting that the agency has

committed three additional violations of the settlement agreement by

failing to notify him about vacant SES positions and failing to give

him the opportunity to apply for those positions.

Complainant requests that these alleged breaches be remedied by ordering

the agency 1) to notify petitioner of any future openings; 2) to pay

punitive damages; and 3) reimburse petitioner for the attorney's fees

and costs he has incurred. In addition, petitioner requests that �a

hearing before an EEOC administrative judge be granted on this matter.�

ANALYSIS AND FINDINGS

Agency's Compliance With August 21, 1998 Order

It appears to be uncontroverted that the agency has failed to comply with

the Commission's August 21, 1998 order. In that order we directed the

agency to reinstate petitioner's formal complaints. It has not done so.

The agency has supplied us with no explanation for its failure to comply.

It may be that the agency regards itself as having been relieved of

the obligation to comply with our order by petitioner's September 9,

1998 letter. We do not regard this as a valid excuse for the agency's

failure to comply with our order because the agency improperly

conditioned petitioner's right to have his complaints reinstated on

petitioner repaying to the agency �all the benefits he received under

the settlement agreement.�

Our order did not condition petitioner's right to have his complaints

reinstated on any such payment. Nor is there any basis in law that

would permit the agency unilaterally to impose such a condition. In Basu

v. Department of Agriculture EEOC Appeal No. 01970460 (April 8, 1999),

citing Oubre v. Entergy Operations, Inc. 522 U.S. 422, 118 S.Ct. 838

(1998) and Hogue v. Southern Ry., 390 U.S. 516 (1968), we held under

similar circumstances that �return of the [settlement proceeds] is not

a prerequisite for continued processing of the complaint.� We conclude

that petitioner is not required to return the settlement proceeds to

the agency as a condition of continued processing of his complaints and

that he is not bound by his September 9, 1998 election not to have his

complaints reinstated. Therefore, we will direct the agency to resume

processing of the complaints.

Attorney's Fees

Having prevailed here on the issue of the agency's noncompliance

with our August 21, 1998 order, petitioner is entitled to an award of

attorney's fees. See Terrell v. Department of Health and Human Services,

EEOC Petition No. 04950018 (November 7, 1996). Therefore, in accordance

with our order below, the agency shall reimburse petitioner for attorney's

fees and costs he has incurred in connection with Petition No. 04A00014.

CONCLUSION

Based upon a review of the record herein, and for the foregoing reasons,

the Commission finds that the agency has failed to comply with the

previous Order set forth in EEOC Appeal No. 01980299 (August 21, 1998).

Accordingly, the agency shall be required to afford to petitioner the

relief set forth in the order below.<2>

ORDER

1. The agency is ORDERED to resume processing of petitioner's complaints

from the point processing ceased.

2. The agency shall reimburse petitioner for attorney's fees and costs

incurred in connection with the filing of Petition No. 04A00014.

The attorney shall submit a verified statement of fees to the agency

within thirty (30) calendar days of the date on which this decision

becomes final. The agency shall then process the claim for attorney's

fees in accordance with 29 C.F.R. � 1614.501.

3. 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 the attorney's fees payable.

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.

STATEMENT OF PETITIONER'S RIGHTS ON PETITION FOR ENFORCEMENT

COMPLAINANT'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 M. Hadden, Director

Office of Federal Operations

June 27, 2001

__________________

Date

1The letter actually bears the date �August 11, 1998" but the facts

recited in the letter make clear that the letter was written in September,

1998.

2It should be noted that complainant has pending before the agency at

least one additional administrative EEO complaint. In that complaint,

complainant sought to have a class certified. The request for

certification was denied by the EEOC Administrative Judge to whom it

was assigned and by the agency. In Basu v. Department of Agriculture,

EEOC Appeal No. 01A10660, the Commission reversed, in part, the denial

of certification and directed that a class be conditionally certified.

In view of the pendency of that class action, the instant matter should

be handled in accordance with Equal Employment Opportunity Management

Directive for 29 C.F.R. Part 1614 (EEO-MD-110), Chap. 8 III C, at 8-5,

November 9, 1999.