EEOC Petition No. 0420160031
01-05-2017
Donny F. v. Dep't of Homeland Sec.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Donny F.,1
Petitioner,
v.
Jeh Johnson,
Secretary,
Department of Homeland Security
(Transportation Security Administration),
Agency.
Petition No. 0420160031
Appeal No. 0720130035
Agency No. HS08TSA008204
DECISION ON A PETITION FOR ENFORCEMENT
On March 21, 2016, the Equal Employment Opportunity Commission (EEOC or Commission) docketed a petition for enforcement (PFE) to examine the enforcement of an Order set forth in EEOC Appeal No. 0720130035 (October 20, 2015). The Commission accepts this petition for enforcement pursuant to 29 C.F.R. � 1614.503. Petitioner alleged that the Agency did not fully comply with the Commission's order for relief. For the following reasons, the PFE is GRANTED.
BACKGROUND
At the time of events giving rise to this complaint, Petitioner worked as a Transportation Security Specialist at the Reno International Airport in Reno, Nevada. Petitioner filed a complaint in which he alleged that the Agency discriminated against him on the bases of national origin (Hispanic) and reprisal for prior protected EEO activity in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq. An Equal Employment Opportunity Commission Administrative Judge (AJ) found that the Agency subjected Petitioner to reprisal discrimination, and awarded Petitioner relief, which included paying Petitioner the equivalent monetary value of leave without pay he utilized as a result of the discrimination. The Agency issued a FAD rejecting the AJ's finding of reprisal discrimination and also rejected the AJ's order for relief. Petitioner appealed the Agency's FAD to the Commission, and in EEOC Appeal No. 0720130035 (October 20, 2015), the Commission reversed the Agency's FAD, and affirmed the AJ's finding that Petitioner was subjected to reprisal discrimination. The Commission also affirmed the AJ's award for relief, and the Order specified, in relevant part, that the Agency was required to: (1) calculate the monetary and/or retirement value of Petitioner's sick, annual, and unpaid leave from when he left the workplace in July 2008 until his resignation in January 2009, and pay to Petitioner the equivalent monetary value of the leave in question; (2) provide training to the responsible management officials; (3) consider taking disciplinary action against the responsible management officials; and (4) post a notice of the finding of discrimination at the facility. The matter was assigned to a Compliance Officer and docketed as Compliance No. 06-2016-0067 on October 21, 2015. On March 21, 2016, Petitioner submitted the PFE at issue. Petitioner contends that the Agency did not comply with the Commission's order regarding the aforementioned relief.
ANALYSIS AND FINDINGS
I. Training, Disciplinary Action, and Posting Notice
The Agency submitted documentation showing that the notice of the discrimination finding was posted. The Agency also explained that the responsible management officials left the Agency prior to the issuance of the Commission's decision, therefore, it did not have the opportunity to take disciplinary action or provide training to the officials.
II. Monetary Payment for Leave Without Pay
The Agency did not pay to Petitioner the monetary value of leave without pay he incurred as a result of discrimination.
Relief which is provided pursuant to Title VII is designed to make a person who has been subjected to discrimination 'whole' by placing him 'as near as may be, in the situation he would have occupied if the wrong had not been committed.' Albemarle Paper Co. v. Moody, 422 U.S. 405, 418-19 (1975).
The Commission ordered the following regarding Petitioner's leave: "the Agency will calculate the monetary and/or retirement value of Complainant's sick, annual, and unpaid leave from when he left the workplace in July 2008 until his resignation in January 2009. The Agency will pay to Complainant the equivalent monetary value of the leave in question. Additionally, the Agency will correct Complainant's relevant personnel/retirement records." EEOC Appeal No. 0720130035 (Oct. 20, 2015). The Agency admittedly did not provide Petitioner with any money to compensate him for the leave without pay Petitioner incurred. Agency Brief, p. 6. The Agency argued that the Commission did not order for the Agency to pay Petitioner back pay for the 308.75 hours he was in leave without pay status, and that Petitioner was not entitled to such backpay because Petitioner did not prevail on a constructive discharge claim. Agency Brief, p. 6-7. The Agency argued that the Commission ordered for the Agency to pay Petitioner the equivalent monetary value of Petitioner's sick, annual and unpaid leave, and that "there is no monetary value to leave without pay." Id. Therefore, the Agency reasoned that it did not have to pay Petitioner anything. Id.
Petitioner utilized leave without pay as a result of the Agency's retaliatory harassment. The Commission's decision explained that the Agency did not contest Petitioner's request for compensation for sick leave, annual leave, and unpaid leave from July 2008 through January 2009 before the AJ. Therefore, the decision accepted the AJ's determination that Petitioner should be compensated for his leave. Further, paying Petitioner the monetary value of his leave taken without pay constitutes make-whole relief because Petitioner would not have utilized such leave, and would have received pay if not for the Agency's reprisal discrimination. See, e.g., Halliburton v. Small Business Administration, EEOC Appeal No. 01911033 (June 21, 1991) (explaining that "if appellant could prove discrimination, she would be entitled to reimbursement for leave without pay and restoration of annual leave and sick leave taken during the period of the discriminatory occurrence"); Complainant v. Dep't of Treasury, EEOC Appeal No. 01A40791 (March 28, 2005) (awarding complainant reimbursement for all Leave Without Pay taken as a result of the agency's discriminatory denial of her reasonable accommodation to work flexiplace three days a week). Contrary to the Agency's argument, relief for the monetary value of leave without pay is available even though Petitioner did not prevail on a constructive discharge claim, and previous Commission cases have reimbursed complainants their pay for periods of leave without pay taken as a result of discrimination.
Therefore, the Agency is not in compliance with the Commission's order in EEOC Appeal No. 0720130035 (October 20, 2015) to pay Petitioner the monetary value of leave without pay he incurred from July 2008 through January 2009.
CONCLUSION
Based on a thorough review of the record and the contentions in the PFE, including those not specifically addressed, Petitioner's PFE is GRANTED. Petitioner's claim for the Agency to pay him for the monetary value of leave without pay he incurred from July 2008 through January 2009 is REMANDED for the Agency to comply.
ORDER
Within one hundred and twenty (120) calendar days from the date this decision becomes final, the Agency is ORDERED to calculate the monetary and/or retirement value of Petitioner 's unpaid leave from when he left the workplace in July 2008 until his resignation in January 2009. The Agency will pay to Petitioner the equivalent monetary value of the leave in question. Additionally, the Agency will correct Petitioner's relevant personnel/retirement records.
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 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.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0610)
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 77960, Washington, DC 20013. 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 RIGHTS - ON APPEAL
RECONSIDERATION (M0416)
The Commission may, in its discretion, reconsider the decision in this case if the Complainant or the Agency submits a written request containing arguments or evidence which tend to establish 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.
Requests to reconsider, with supporting statement or brief, must be filed with the Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision or within twenty (20) calendar days of receipt of another party's timely request for reconsideration. See 29 C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9 � VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. The requests may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, the request to reconsider shall be deemed timely filed if it is received by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. � 1614.604. The request or opposition must also include proof of service on the other party.
Failure to file within the time period will result in dismissal of your request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted with your request for reconsideration. The Commission will consider requests for reconsideration filed after the deadline only in very limited circumstances. See 29 C.F.R. � 1614.604(c).
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 (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests.
Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant's Right to File a Civil Action for the specific time limits).
FOR THE COMMISSION:
______________________________ Carlton M. Hadden's signature
Carlton M. Hadden, Director
Office of Federal Operations
1-5-2017
__________________
Date
1 This case has been randomly assigned a pseudonym which will replace Petitioner's name when the decision is published to non-parties and the Commission's website.
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