04A20036
08-28-2003
James D. Pallente, Petitioner, v. Tom Ridge, Secretary, Department of Homeland Security, Agency.
James D. Pallente v. Department of Justice
04A20036
August 28, 2003
.
James D. Pallente,
Petitioner,
v.
Tom Ridge,
Secretary,
Department of Homeland Security,
Agency.
Petition No. 04A20036
Appeal No. 01A04996
Agency No. I-97-0046
DECISION ON A PETITION FOR CLARIFICATION
On August 23, 2002, the Equal Employment Opportunity Commission (EEOC or
Commission) docketed a petition for clarification of an order set forth in
James D. Pallente v. Department of Justice, EEOC Appeal No. 01A04996 (July
6, 2001). This petition for clarification is accepted by the Commission
pursuant to 29 C.F.R. � 1614.503(c). Petitioner seeks clarification of
the issue of his entitlement to attorney's fees and compensatory damages.
Petitioner filed a complaint in which he alleged that the agency
discriminated against him on the bases of sex (Male) and in reprisal
for prior EEO activity. Petitioner appealed the agency's final decision
denying his complaint to the Commission. In EEOC Appeal No. 01A04996, the
Commission found that the agency did not engage in discrimination based
on sex, but did retaliate against Petitioner when supervisors called him
a �whiner� and reduced his 1997 rating from �outstanding� to �excellent.�
In that decision, the Order did not grant Petitioner entitlement to
attorney's fees and compensatory damages. However, the decision also
included a Posting Order directing the agency to post a notice (Notice)
in conspicuous places in the facility where the discrimination occurred,
stating that the agency had been found to have unlawfully subjected the
Petitioner to discrimination on the basis of retaliation. The Notice
further specified, inter alia, that the agency had been ordered to award
attorney's fees incurred in processing the complaint and to consider
Petitioner's claim for compensatory damages. Because of the discrepancy
between the Order and the Notice, Petitioner, on August 23, 2002,
submitted the petition for clarification at issue. Petitioner contends
that he would have requested reconsideration of Appeal No. 01A04996 if
he understood that decision to have denied him entitlement to attorney's
fees and consideration for compensatory damages. The Commission grants
the instant petition for clarification.
Following a review of the record, the Commission finds that the sentence
in the Notice addressing Petitioner's entitlement to compensatory damages
was in error because the record does not show that Petitioner made any
request for such damages. In his Formal Complaint, Petitioner wrote that
he would address the issue of corrective action �with the EEO investigator
at the time of my interview.� See Report of Investigation (ROI),
Exhibit 1. His subsequent affidavits, however, contain no statement
that can reasonably be construed as a claim for compensatory damages,
see ROI, Exhibits 12 & 17, nor do the various memoranda, statements,
and other items of correspondence submitted by Petitioner during the
processing of his complaint. See four memoranda, all dated on May 6,
1998, submitted by Petitioner in support of his appeal of the agency's
Final Decision. In view of the above, Petitioner is not entitled to
compensatory damages. Regarding attorney's fees, Petitioner indicated
in his Formal Complaint his possible intent to obtain the services of
an attorney, although it is unclear from the record if he ever did so.
Accordingly, he is entitled to reasonable attorney's fees incurred in
the processing of the complaint, if shown. The agency is ORDERED to
take further action as set forth in the Order of the Commission, below.
ORDER
1. The issues of attorney's fees and costs are REMANDED to the agency.
Petitioner, through counsel, shall submit a request for attorney's
fees and costs in accordance with the Attorney's Fees paragraph set
forth below. No later than sixty (60) days after the agency's receipt
of the attorney's fees statement and supporting affidavit, the agency
shall issue a final agency decision addressing the issues of attorney's
fees and costs. The agency shall submit a copy of the final decision
to the Compliance Officer at the address set forth below;
2. The agency, if it has not already done so, is directed to conduct
training for the Management Officials who were found to have retaliated
against Petitioner. The agency shall address these employees'
responsibilities regarding the protection of the rights of employees
engaged in protected EEO activities;
3. Within thirty (30) days of the agency's receipt of this petition,
the agency, if it has not already done so, shall expunge from any and
all of its personnel and other records any reference to Petitioner's
1997 Performance Work Plan rating of �excellent�;
4. 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 of the
agency's management training, and evidence that the corrective action
has been implemented.
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.
ATTORNEY'S FEES (H0900)
If complainant 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.
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
August 28, 2003
__________________
Date