04A30026
06-16-2004
Donald R. Czarnecki, Petitioner, v. Norman Y. Mineta, Secretary, Department of Transportation, (Federal Aviation Administration), Agency.
Donald R. Czarnecki v. Department of Transportation
04A30026
June 16, 2004
.
Donald R. Czarnecki,
Petitioner,
v.
Norman Y. Mineta,
Secretary,
Department of Transportation,
(Federal Aviation Administration),
Agency.
Petition No. 04A30026
Request No. 05A21003
Appeal No. 07A10096
Hearing No. 310-A0-5066X
Agency No. 5995056
DECISION ON A PETITION FOR ENFORCEMENT
On March 20, 2003, the Equal Employment Opportunity Commission docketed
a petition for enforcement to examine the enforcement of an order set
forth in Donald R. Czarnecki v. Department of Transportation, EEOC Appeal
No. 07A10096 (June 19, 2002), request to reconsider denied, EEOC Request
No. 05A21003 (September 6, 2002).<1> This petition for enforcement is
accepted by the Commission pursuant to 29 C.F.R. � 1614.503.
Petitioner filed a complaint in which he alleged that the agency
discriminated against him on the bases of race (Caucasian) and age (DOB:
02-28-1942) when he was not selected for the GS-14 position of Supervisory
Airway Transportation Systems Specialist in January 1999. After holding
a hearing, an EEOC Administrative Judge (AJ) found the agency liable for
race and age discrimination. To remedy petitioner, the Administrative
Judge ordered the agency to retroactively place petitioner in a GS-14
Manager of Maintenance Operations position, with appropriate back pay and
interest; to award petitioner $1,500.00 in compensatory damages; to pay
proven attorney's fees and costs; and to post a notice. The Commission
upheld the AJ's finding of liability and award of relief on appeal
and denied the agency's request for reconsideration. In EEOC Request
No. 05A21003, the Commission ordered the agency to do the following:
1. Within sixty (60) calendar days of this decision becoming final,
the agency is ordered to offer petitioner either the GS-14 Manager of
Maintenance Operations or a substantially equivalent GS-14 position
at a facility within petitioner's commuting area. Both parties shall
cooperate to identify an appropriate position for which petitioner is
qualified and willing to accept. Failure to accept the offer within
the time period set by the agency will be considered a rejection of the
offer, unless petitioner can show that circumstances beyond his control
prevented a response within the time limit.
2. The agency shall award petitioner back pay with interest and other
benefits due petitioner, for the period from the date that the selectee
was placed into the GS-14 Supervisory Airway Transportation Systems
Specialist position to the date petitioner accepts or declines to accept
the offer ordered in the above paragraph. The agency shall determine
the appropriate amount of back pay with interest and other benefits due
petitioner, pursuant to 29 C.F.R. � 1614.501, no later than sixty (60)
days after the date this decision becomes final. The petitioner shall
cooperate in the agency's efforts to compute the amount of back pay
and benefits due, and shall provide 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 the petitioner
for the undisputed amount within sixty (60) calendar days of the date
the agency determines the amount it believes to be due. The petitioner
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.�
3. The agency shall pay petitioner $1,500.00 in compensatory damages.
4. The agency shall conduct training for its management officials in its
Fort Worth, Texas and surrounding facilities regarding their obligations
under Title VII of the Civil Rights Act of 1964 (Title VII), as amended,
42 U.S.C. � 2000e et seq. and the Age Discrimination in Employment Act
of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
5. The issue of attorney's fees is remanded to the Dallas District
Office. As indicated in the Administrative Judge's decision, petitioner
shall submit a verified statement of fees and costs, accompanied
by an affidavit pursuant to 29 C.F.R. � 1614.501(e). Thereafter, an
Administrative Judge must be assigned in an expeditious manner to further
process the issue of attorney's fees in accordance with the regulations.
6. The agency is 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 verifying that the
foregoing corrective actions have been implemented.
The matter was assigned to a Compliance Officer and docketed as Compliance
No. 06A30171. On March 20, 2003, petitioner, through his attorney,
informed the Compliance Officer that the agency had failed to comply
with the Commission's Order. Specifically, petitioner argues that the
agency has never offered him the GS-14 Manager of Maintenance Operations
position or a substantially equivalent GS-14 position; that as a result
of the failure to offer petitioner the position, the back pay, interest
and other benefits due have been incorrectly calculated; that the Dallas
District Office has not fully acted on the petition for attorney's fees;
and that there is no proof that the training and posting of a notice have
occurred. The Compliance Officer recommended docketing this submission
as a petition for enforcement.
Review of the Compliance Officer's file reveals that petitioner retired
from the agency effective June 1, 2001. Petitioner did not bring this
fact to the Commission's attention while the case was pending before us.
Now petitioner is arguing that he was forced into retirement due to the
agency's discriminatory action and that he would not have retired had he
been selected for the GS-14 position in January 1999. The Commission is
not persuaded that these arguments are relevant insofar as petitioner
has never filed a complaint alleging constructive discharge. Further,
review of the Notification of Personnel Action on the Standard Form
50s concerning petitioner's retirement describes it as �Retirement
- Voluntary.� As such, the Commission finds the evidence of record
insufficient to support a nexus between the agency's discrimination and
petitioner's retirement. We therefore find that the agency appropriately
concluded that it did not have to offer petitioner a GS-14 position
and that petitioner's entitlement to back pay and other benefits due
terminated on the effective date of his retirement.
Upon further review of the compliance file, the Commission is satisfied
that the agency has complied with our order to pay compensatory
damages, to provide training and to post the notice of discrimination.
Concerning the issue of attorney's fees, it appears that the agency
paid petitioner $13,736.25 in fees for services performed before the AJ.
Petitioner contends that this amount represent fees for work performed
before the agency's appeal to the Commission and that the Commission's
Dallas District Office has failed to act on the fees incurred on appeal.
As petitioner was a prevailing party on appeal, he is entitled to fees for
services performed after the hearing. In the interests of efficiency,
we direct the agency to process petitioner's petition for additional
attorney's fees for work performed after the agency appealed on July
25, 2001, through September 6, 2002, which is the date the Commission's
decision became final.
Based upon a review of the record, and for the reasons stated herein,
the Commission finds that the agency is in compliance with our prior
Order set forth in Donald R. Czarnecki v. Department of Transportation,
EEOC Appeal No. 07A10096 (June 19, 2002), request to reconsider denied,
EEOC Request No. 05A21003 (September 6, 2002). The Commission remands
the issue of attorney's fees to the agency for action consistent with
the ORDER below.
ORDER
Within thirty (30) calendar days of this decision becoming final, the
agency shall send petitioner a letter informing him that his attorney
has thirty (30) days from receipt of the letter to submit a fee petition
for services performed on petitioner's behalf between July 25, 2001
and September 6, 2002. The letter shall state that the petition for
attorney's fees must be in compliance with 29 C.F.R. � 1614.501(e)
and shall provide the name and address of the agency employee to whose
attention this petition should be sent. Within sixty (60) days of receipt
of the petition, the agency shall issue a final decision on attorney's
fees pursuant to 29 C.F.R. � 1614.110(b).
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
petitioner. If the agency does not comply with the Commission's order,
the petitioner may petition the Commission for enforcement of the order.
29 C.F.R. � 1614.503(a). The petitioner 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 petitioner 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 petitioner 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.
PETITIONER'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
June 16, 2004
__________________
Date
1 In our previous decisions, Mr. Czarnecki was referred to as
�complainant.� For the sake of consistency, we will now substitute the
word �petitioner� for �complainant� when we refer to Mr. Czarnecki in
our prior decisions.