04A30034
09-10-2003
Evan D. Ralph, Petitioner, v. Tom Ridge, Secretary, Department of Homeland Security, Agency.
Evan D. Ralph v. Department of Homeland Security
04A30034
September 10, 2003
.
Evan D. Ralph,
Petitioner,
v.
Tom Ridge,
Secretary,
Department of Homeland Security<1>,
Agency.
Petition No. 04A30034
Request No. 05A10509
Appeal No. 01974175
Agency No. 1923116
DECISION ON A PETITION FOR ENFORCEMENT
On June 19, 2003, the Equal Employment Opportunity Commission (EEOC or
Commission) docketed a petition for enforcement to examine the enforcement
of an order set forth in Evan D. Ralph v. Department of the Treasury, EEOC
Appeal No. 01974175 (March 6, 2001), req. for recons. den., EEOC Request
No. 05A10509 (January 2, 2003). This petition for enforcement is accepted
by the Commission pursuant to 29 C.F.R. � 1614.503. Petitioner alleged
that the agency failed to fully comply with the Commission's order.
Petitioner was an Aircraft Pilot with the agency's U.S. Customs Service.
He was removed from this position in early 1992 for his refusal to fly
the Blackhawk helicopter. The removal action was appealed to the Merit
Systems Protection Board (MSPB). An MSPB Administrative Judge reversed
the agency's action and petitioner was reinstated to his position as
an Aircraft Pilot in July 1993. During this time, petitioner had an
EEO complaint pending against the agency alleging discrimination on the
basis of disability.
On January 27, 1994, the agency and petitioner entered into a settlement
agreement (SA). In exchange for petitioner's withdrawal of his EEO
complaint, the agency agreed it would take several actions including
removing references to disciplinary actions taken against petitioner.
Petitioner alleged that the agency breached the settlement agreement.
When the agency failed to respond to petitioner's allegations, he
filed an appeal with the Commission. In EEOC Appeal No. 01974175,
the Commission found that the agency breached the settlement agreement.
The decision noted that the settlement agreement provided that in the
event the agency failed to abide by the terms of the agreement, the
agency shall reinstate him to his position. Accordingly, the Commission
in EEOC Appeal No. 01974175 ordered the agency, among other things, to
reinstate him to his position, to calculate back pay, and to process an
award of attorney's fees and costs.
The agency requested reconsideration on the matter which was addressed in
Evan D. Ralph v. Department of the Treasury, EEOC Request No. 05A10509
(January 2, 2003). The previous decision found that the agency's request
failed to meet the criteria for reconsideration. The previous decision
also noted that the decision in EEOC Appeal No. 01974175 merely ordered
what petitioner and the agency agreed upon in the settlement agreement.
Accordingly, the previous decision ordered the agency to take the same
remedial steps listed in EEOC Appeal No. 01974175.
The matter was assigned to a Compliance Officer and docketed as
Compliance No. 06A30568. The agency stated in its compliance report
that petitioner's position at the time of the SA was that of a disabled
retired annuitant. Therefore, petitioner's position today is the same
as the position he held at the signing of the SA. Based on the agency's
determination regarding his position, the agency found that he was not
entitled to any back pay and/or benefits.
On May 16, 2003, petitioner submitted the petition for enforcement at
issue. Petitioner contends that the agency has not reinstated him to
his prior position, tendered him back pay, nor processed his attorney's
claim for fees and costs. The Commission grants the petition.
Upon review, the Commission finds that the agency has not complied
with our order in EEOC Request No. 05A10509. The agency argued that
petitioner was a disabled retired annuitant. The record indicates that
petitioner's disability retirement was granted on June 17, 1994, and
applied retroactively to his last day with the agency, January 11, 1994.
Accordingly, the agency claimed that at the signing of the settlement
agreement on January 27, 1994, based on the retroactive status of the
disability retirement, petitioner was a disabled retired annuitant.
Since petitioner is in the same status as he was at the time of the
SA, the agency contended that there is no need to change his position.
Consequently, the agency concluded that petitioner is not entitled to
any back pay.
The Commission finds the agency's position is not supported. The SA
provided that the agency would process petitioner's disability retirement.
Therefore, at the time the SA was actually signed, petitioner's disability
retirement had not been granted and was not a disabled retired annuitant.
Further, the record clearly indicates that the "position" referred to in
the SA was that of an Aircraft Pilot. Accordingly, we are not persuaded
by the agency's argument regarding petitioner's position. In addition,
the Commission finds that the agency's denial of back pay was incorrect
in that the agency relied on its erroneous interpretation of "position."
Therefore, the agency has not provided petitioner with the remedies
ordered in the Commission's previous decision.
Further, petitioner contends that the agency has failed to process his
claim for attorney's fees and costs. The agency has not shown that it
has made any attempt to process this claim. Therefore, the agency is
ordered to determine the award of attorney's fees and costs incurred
in the processing of the complaint including the instant petition for
enforcement.
Based upon the compliance record, the Commission is concerned with
the agency's game of semantics regarding the term "position" from
our previous orders and the agency's failure to respond to the claim
for attorney's fees and costs. To the Commission it appears that the
agency is avoiding its obligation to take the remedial actions ordered
in our previous decisions. We caution the agency that continued failure
to comply with our orders may result in the Commission's referral of
the matter to the Office of Special Counsel for enforcement action.
See 29 C.F.R. � 1614.503 (f).
CONCLUSION
Based upon the foregoing, the Petition for Enforcement is GRANTED, and
the agency is ORDERED to take further action as set forth in the Order
of the Commission, below.
ORDER
The agency is ORDERED to take the following remedial action:
The agency shall reinstate petitioner to his position as an Aircraft
Pilot within sixty (60) days.
The agency shall tender to petitioner back pay and benefits for the
period from the date on which his sick leave was exhausted until either
the date on which he is reinstated to his former position or the date
on which it is determined that he is not suited for employment as an
Aircraft Pilot. The agency shall determine the appropriate amount of back
pay (with interest, if applicable) and other benefits due petitioner,
pursuant to 29 C.F.R. � 1614.501, no later than sixty (60) calendar
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 all 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."
The agency shall process petitioner's claim for attorney's fees and costs
incurred in the processing of this complaint including the petition for
enforcement within thirty (30) days.
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 verifying
that the corrective action has been implemented.
ATTORNEY'S FEES (H0900)
If petitioner has been represented by an attorney (as defined by
29 C.F.R. � 1614.501(e)(1)(iii)), he/she 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 (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.
STATEMENT OF RIGHTS - ON PETITION FOR ENFORCEMENT
PETITIONER'S RIGHT TO FILE A CIVIL ACTION (S0900)
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. If you
file a request to reconsider and also file a civil action, 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
September 10, 2003
__________________
Date
1This matter was initially captioned Evan D. Ralph v. Department of
the Treasury. Since the Commission's prior decision, the Department
of Treasury's Customs Service has been absorbed into the Department of
Homeland Security. Therefore, the instant matter in now captioned Evan D.
Ralph v. Department of Homeland Security.