07A20038
09-30-2003
Lance Edmonds, Complainant, v. Tom Ridge, Secretary, Department of Homeland Security (Immigration and Naturalization Service), Agency.
Lance Edmonds v. Department of Homeland Security
07A20038
September 30, 2003
.
Lance Edmonds,
Complainant,
v.
Tom Ridge,
Secretary,
Department of Homeland Security<1>
(Immigration and Naturalization Service),
Agency.
Appeal No. 07A20038
Agency No. I-97-0160
Hearing No. 100-99-7144X
DECISION
Following its November 8, 2001 final order, the agency filed a timely
appeal which the Commission accepts pursuant to 29 C.F.R. � 1614.405.
On appeal, the agency accepts a finding by the Administrative Judge (AJ)
of disability discrimination, but rejects in part the relief awarded by
the AJ. For the following reasons the Commission AFFIRMS the agency's
final order.
Complainant, an applicant for employment with the agency's Immigration
and Naturalization Service, filed a formal EEO complaint alleging that
the agency had discriminated against him on the basis of disability
(epilepsy/nocturnal seizure disorder) when it withdrew a September
19, 1995, conditional job offer for the position of Immigration
Inspector, GS-1816-5. The agency investigated the complaint, and at the
conclusion of the investigation, provided complainant with a copy of the
investigative report. Complainant then requested a hearing before an AJ.
Following a hearing, the AJ found that the agency had discriminated
against complainant based on disability when it withdrew its job offer.
The AJ awarded relief including, in relevant part, back pay and benefits
commencing September 25, 1995. The AJ did not explain the basis for
her selection of this date.
The record reflects the following sequence of events: On September
19, 1995, the agency tendered to complainant a job offer conditioned
on medical clearance for the position at issue, which is classified
as a law enforcement position. By this date, complainant had already
undergone a physical examination as part of the application process.
On October 5, 1995, complainant was advised of the need for a medical
evaluation relative to his condition, particularly to his use of the
drug phenobarbital to treat his condition. Complainant underwent the
evaluation, but based upon the information obtained was found to be
medically disqualified.
On April 15, 1996, the agency advised complainant that he had been found
medically disqualified, but afforded complainant the opportunity to
submit additional evidence in support of his qualifications. Complainant
submitted additional medical information, which was then evaluated by
the agency's Medical Officer. On November 26, 1996, the agency again
determined that complainant was medically disqualified from holding the
position at issue. The agency did not, however, formally issue a final
withdrawal of the offer until July 24, 1997.
On appeal, the agency contests only the commencement date of the back pay
period. The agency notes that the offer of employment was conditional
upon complainant obtaining medical clearance. The agency notes that
original medical evaluation raised questions about complainant's
medical qualification, requiring additional medical information from
complainant. The agency notes that it was not until its November 26,
1996 determination that it finally had sufficient information from which
to assess complainant's medical qualification. The agency admits that its
determination that complainant was not medically qualified constituted
disability discrimination. The agency argues that because it did not
possess the required information until November 26, 1996, the back pay
period should commence no earlier than that date.
When discrimination is found, the agency must provide the complainant
with an equitable remedy that constitutes full, make-whole relief to
restore him or her to the position he or she would have occupied absent
the discrimination. See, e.g., Franks v. Bowman Transportation Co.,
424 U.S. 747, 764 (1976); Adesanya v. U.S. Postal Service, 01933395
(July 21, 1994). In this case, the only portion of the remedy at issue
is the extent to which complainant is entitled to back pay.
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by
an AJ will be upheld if supported by substantial evidence in the record.
Substantial evidence is defined as �such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.� Universal
Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951)
(citation omitted). A finding regarding whether or not discriminatory
intent existed is a factual finding. See Pullman-Standard Co. v. Swint,
456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a
de novo standard of review, whether or not a hearing was held.
Here, the Commission finds that the AJ's selection of September 25,
1995, as the commencement date for the back pay period is not supported
by substantial evidence of record. The AJ did not explain her choice
of this date, nor does the record reflect the basis for its selection.
There was a legitimate question as to whether complainant was medically
qualified for the position at issue, particularly with regard to his use
of the drug phenobarbital to treat his condition. This question had not
been addressed as of September 25, 1995. This question was not fully
addressed, and resolved, until November 26, 1996, notwithstanding that
the determination issued on that date effectively discriminated against
complainant based on his disability by denying him employment. Because a
determination whether to proceed with complainant's employment could not
be reached until that date, the back pay period should commence no earlier
than that date. To allow otherwise would be to place complainant in a
more favorable position than he would have occupied had the discrimination
not occurred.
Therefore, after a careful review of the record, including arguments and
evidence not specifically discussed in this decision, the Commission
AFFIRMS the agency's final order and remands the matter to the agency
to take corrective action in accordance with this decision and the
Order below.
ORDER (D0403)
If it has not already done so, the agency is ordered to take the following
remedial actions:
Complainant shall be offered the position of Immigration Inspector,
GS-1816-5, retroactive to November 26, 1996. The offer shall be made
in writing, and complainant shall have 20 days from receipt of offer
to accept or decline. If he accepts the position, complainant shall
serve the required probationary period.
Complainant shall be awarded back pay, minus mitigation, with interest,
and any other benefits of employment, including seniority and accrued
leave, up to the date he is placed in the position or declines the
offer of employment.
The agency shall provide training on the requirements of the
Rehabilitation Act to the officials identified as responsible for the
withdrawal of the offer of employment. this training is mandatory for
any of these individuals who are still employed by the agency.
The agency shall consider taking disciplinary action against the
officials identified as responsible for the withdrawal of the offer
of employment. The agency shall report its decision. If the agency
decides to take disciplinary action, it shall identify the action taken.
If the agency decides not to take disciplinary action, it shall set
forth the reason(s) for its decision not to impose discipline.
The agency shall pay complainant $15,000 in compensatory damages.
The agency shall pay complainant $30,577 in attorney's fees, and
no costs.
The agency shall post a notice of the finding of discrimination, as
set forth in the below-entitled paragraph, �Posting Order.�
The agency shall determine the appropriate amount of back pay, with
interest, and other benefits due complainant, pursuant to 29 C.F.R. �
1614.501, no later than sixty (60) calendar days after the date this
decision becomes final. The complainant 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 complainant for the undisputed
amount within sixty (60) calendar days of the date the agency determines
the amount it believes to be due. The complainant 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 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 calculation of back pay and other benefits due complainant,
including evidence that the corrective action has been implemented.
POSTING ORDER (G0900)
The agency is ordered to post at its Twin Cities Administrative Center
copies of the attached notice. Copies of the notice, after being
signed by the agency's duly authorized representative, shall be posted
by the agency within thirty (30) calendar days of the date this decision
becomes final, and shall remain posted for sixty (60) consecutive days,
in conspicuous places, including all places where notices to employees are
customarily posted. The agency shall take reasonable steps to ensure that
said notices are not altered, defaced, or covered by any other material.
The original signed notice is to be submitted to the Compliance Officer
at the address cited in the paragraph entitled �Implementation of the
Commission's Decision,� within ten (10) calendar days of the expiration
of the posting period.
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.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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), 9-18 (November 9, 1999). All requests
and arguments must be submitted to the Director, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. 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 (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 30, 2003
__________________
Date
This Notice is posted pursuant to an Order by the United States Equal
Employment Opportunity Commission dated which found that a
violation of the Rehabilitation Act of 1973, as amended, 29 U.S.C. �791
et seq., has occurred at this facility.
Federal law requires that there be no discrimination against any
employee or applicant for employment because of that person's RACE,
COLOR, RELIGION, SEX, NATIONAL ORIGIN, AGE, or PHYSICAL or MENTAL
DISABILITY with respect to hiring, firing, promotion, compensation,
or other terms, conditions, or privileges of employment.
The Department of Homeland Security, Immigration and Naturalization
Service supports and will comply with such Federal law and will not
take action against individuals because they have exercised their rights
under law.
The Department of Homeland Security, Immigration and Naturalization
Service has been found to have discriminated against the individual
affected by the Commission's finding. The Department of Homeland
Security, Immigration and Naturalization Service shall place the affected
individual in the position from which he was excluded on account of
unlawful discrimination, and pay the affected individual's proven
compensatory damages and reasonable attorney's fees. The Department
of Homeland Security, Immigration and Naturalization Service will
ensure that officials responsible for personnel decisions and terms
and conditions of employment will abide by the requirements of all
Federal equal employment opportunity laws and will not retaliate against
employees who file EEO complaints.
The Department of Homeland Security, Immigration and Naturalization
Service will not in any manner restrain, interfere, coerce, or retaliate
against any individual who exercises his or her right to oppose practices
made unlawful by, or who participates in proceedings pursuant to,
Federal equal employment opportunity law.
_________________________
Date Posted: ____________________
Posting Expires: _________________
29 C.F.R. Part 1614
1The Commission notes that the complaint at bar initially was filed
against the Department of Justice. During the pendency of these
proceedings, however, responsibility for the Immigration Naturalization
Service was transferred to the Department of Homeland Security.