04A40016
06-16-2004
Francisco Padilla, Jr., Petitioner, v. Alphonso Jackson, Acting Secretary, Department of Housing and Urban Development, Agency.
Francisco Padilla, Jr. v. Department of Housing and Urban Development
04A40016
June 16, 2004
.
Francisco Padilla, Jr.,
Petitioner,
v.
Alphonso Jackson,
Acting Secretary,
Department of Housing and Urban Development,
Agency.
Petition No. 04A40016
Appeal No. 01986538
Agency No. FH9501
Hearing No. 100-96-7134X
CLARIFICATION OF A DECISION ON A PETITION FOR ENFORCEMENT
On our own motion, the Commission issues a clarification of its decision
in Francisco Padilla, Jr. v. Department of Housing and Urban Development,
EEOC Appeal No. 04A40016 (June 16, 2004). On March 10, 2004, the Equal
Employment Opportunity Commission (EEOC or Commission) docketed a petition
for enforcement to examine the enforcement of an order set forth in
Francisco Padilla, Jr. v. Department of Housing and Urban Development,
EEOC Appeal No. 04A20031 (September 30, 2003). Petitioner alleged
that the agency failed to fully comply with the Commission's order: (1)
regarding job placement with the agency; and (2) regarding the back pay
portion of the order. In our prior decision, the Commission concurred
with the agency's contention that it had offered petitioner, in good
faith, three (3) positions which were substantially equivalent to the
original Director, Multifamily Housing (DMH) position that complainant
applied for. As such, we found that the agency had complied with the
portion of the Commission's initial order which addressed job placement.
In addition, we concluded that the agency fully complied with the
Commission's order to supply petitioner with the documents sent to
the Commission's Compliance Officer regarding back pay. We therefore
concluded that the agency fully complied with the Commission's order
for relief in EEOC Appeal No. 01986538.
However, in EEOC Petition No. 04A40016, the Commission noted that the
agency stated that it would keep the three (3) positions previously
offered to petitioner open. As a result, we �requested� that the agency
keep these positions open, and give complainant thirty (30) days from the
date the decision was received to either accept or decline the positions
offered by the agency. Subsequently, neither petitioner nor his counsel
received copies of EEOC Petition No. 04A40016. In addition, counsel
for the agency verbally questioned that portion of the decision which
discussed keeping the offered positions open and allowing petitioner
time to accept or reject them. Due to the questions of the parties,
we have decided to issue this clarification of our decision on petition
for enforcement.
Upon review of the record, the Commission finds that by letter to
petitioner's counsel dated March 12, 2004, the agency's Director,
Resource Management Division (�the Director�) stated that the offered
positions remained open and available, but could not continue to remain
open without being detrimental to the agency. Thus, the Director stated
that the positions offered to petitioner were the agency's final offer,
and if petitioner reconsiders his initial declination of the offers, he
was to contact the agency no later than ten (10) days from receipt of the
letter. We note that petitioner filed his petition for enforcement with
the Commission on March 10, 2004. Nevertheless, we find after reviewing
the record that the agency offered petitioner three (3) substantially
equivalent positions to the DMH position, and petitioner declined each
offer. Following the Director's letter of March 12, 2004, the agency did
not offer to leave the positions offered to petitioner open indefinitely,
and petitioner's filing of the request for a petition for enforcement did
not relieve petitioner of his obligation to inform the agency if he had
decided to accept one of the offered positions by the date indicated by
the Director. As such, we find that the agency has fully complied with
the Commission's order in EEOC Appeal No. 01986538 to offer petitioner
a substantially equivalent position to the DMH position.<1>
STATEMENT OF PETITIONER'S RIGHTS - ON PETITION FOR ENFORCEMENT
PETITIONER'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 16, 2004
__________________
Date
1 The Commission notes that due to the issuance of this clarification,
petitioner is not a prevailing party in EEOC Petition No. 04A40016,
and attorney's fees are not warranted in conjunction with that request
for petition for enforcement.