0420050001_Burns
10-03-2005
Curtis L. Burns, Petitioner, v. Michael Chertoff, Secretary, Department of Homeland Security, Agency.
Reference #: 0420050001
Daniel Southerland, Director
Office of Civil Rights & Civil Liberties
Department of Homeland Security
Washington, DC 20528
Reference #: 0420050001
Curtis L. Burns
11800 James Drive
Balch Springs, TX 75180
Reference #: 0420050001
Mark J. Berkowitz,
Esq.
524 S. Andrews
Avenue
Suite 200N
Ft. Lauderdale,
FL 33301
Reference #: 0420050001
Judy Maltby, Chief
EEO Complaints Program Management Office
Department of Homeland Security
Bishop Henry Whipple Federal Building
One Federal Drive, Room G-56C
Twin Cities, MN 55111-4007
Curtis L. Burns,
Petitioner,
v.
Michael Chertoff,
Secretary,
Department of Homeland Security,
Agency.
Petition No. 0420050001
Appeal No. 01972934
Agency No. I946510
DECISION ON A PETITION FOR ENFORCEMENT
On September 28, 2004, the Equal Employment Opportunity Commission
(EEOC or Commission) docketed a petition for enforcement to examine the
enforcement of an order set forth in Curtis L. Burns v. Department of
Homeland Security, Appeal No. 01972934 (January 19, 2001). This petition
for enforcement is accepted by the Commission pursuant to 29 C.F.R. �
1614.503. Petitioner has alleged that the agency failed to fully comply
with the Commission's order as set forth below.
Petitioner filed a complaint in which he alleged that the agency
discriminated against him on the bases of race (African-American) and
disability (right wrist tenosynovitis) in violation of Title VII of the
Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et
seq. and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation
Act), as amended, 29 U.S.C. � 791 et seq. Petitioner appealed the
agency's final decision to the Commission, and in Appeal No. 01972934,
the Commission found that the agency had violated the Rehabilitation
Act when it improperly denied complainant a reasonable accommodation
for his disability.
The Commission ordered the agency to afford complainant several forms of
relief for the discrimination including ordering the agency to determine
the amount of compensatory damages to which complainant was entitled.
The matter was assigned to a Compliance Officer and docketed as Compliance
No. 06A10578 on January 23, 2001.
On September 28, 2004, the Commission dockedted the petition for
enforcement at issue. Petitioner contends that the agency has failed to
make any determination with respect to his entitlement to compensatory
damages.
The agency has not responded to complainant's petition for enforcement.
The compliance record before us indicates that complainant submitted
information to the agency concerning his entitlement to compensatory
damages but is devoid of any indication that the agency made the
compensatory damages determination as we ordered it to do. Accordingly,
the petition for enforcement is GRANTED as the record does not demonstrate
that the agency has complied with our order as repeated, in part, below.
ORDER
The agency is ORDERED to take the following remedial action:
(A) The agency shall conduct a supplemental investigation pertaining to
complainant's entitlement to compensatory damages incurred as result of
the agency's discriminatory actions. See Teshima v. United States Postal
Service, EEOC Appeal No. 01961997 (May 5, 1998); Feris v. Environmental
Protection Agency, EEOC Appeal No. 011934828 (August 10, 1995), request
to reopen denied, EEOC Request No. 05950936 (July 19, 1996); Rivera
v. Department of the Navy, EEOC Appeal No. 01934157 (July 22, 1994);
Carle v. Department of the Navy, EEOC Appeal No. 01922369 (January 5,
1993). See also, Cobey Turner v. Department of the Interior, EEOC Appeal
Nos. 01956390 and 01960518 (April 27, 1998); Jackson v. United States
Postal Service, EEOC Appeal No. 01923399 (November 12, 1992), request for
reconsideration denied, EEOC Request No. 05930306 (February 1, 1993). The
agency shall afford complainant sixty (60) days to submit additional
evidence in support of his claim for compensatory damages. Within thirty
(30) days of its receipt of complainant's evidence, the agency shall issue
a final decision determining complainant's entitlement to compensatory
damages, together with appropriate appeal rights.
(B) The agency is further directed to submit a report of compliance, as
provided in the statement entitled "Implementation of the Commission's
Decision."
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
__________________
Date
04 Case Code Sheet - INTERNAL CIRCULATION ONLY
Initials Date TO: Carlton M. Hadden, Director, Office of
Federal Operations Hilda Rodriguez, Director, Appellate
Review Programs FROM: Neal Thomas, Attorney Shelley
Kahn, Supervisor Melissa Miller, Division Director
Petition Number(s) 0420050001 Appeal Number(s) Agency Number(s)
I946510 Hearing Number(s) Petitioner(s): Curtis L. Burns Agency: DHS
Decision: Granted Statute(s) Alleged Title VII and Rehab Act Basis(es)
Alleged HP - Disability/Physical and RB - Race/Black Issue(s) Alleged A5,
reassignment (Where Discrimination Is
Found Only): (A) Basis(es) For Finding: (B) Issues In Finding HP A5,
reassignment
(Check All Applicable Codes) Merits Decision Codes X 4A - Merits
decision
? 7P - Clarification decision (the decision
Clarifies the remedy only)
X 7Q - Decision directs agency to conduct
Investigation and submit supplementary
report to OFO
? 7R - Decision directs complainant to provide
Additional information ? 7L - Compliance terminated
(the decision has
Determined that the agency's actions are
in compliance with the prior decision. No
further action is required)
X 4Q - Compliance required
Revised 10/3/05
ARP Companion Case Checklist
Complainant Agency Appeal/Request/Petition No. Curtis L. Burns DHS
0420050001
OPEN CASES
Appeal No. ORADS Status Related (Yes/No) Actions Taken 0
CLOSED CASES
Appeal No. ORADS Status Related (Yes/No) Actions Taken 0 01972934 y
Same case
April 23, 2008
Attorney Date
2
0420050001
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
4
0420050001
5
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