07a20116
07-15-2003
Larry W. Nave, Complainant, v. Tom Ridge, Secretary, Department of Homeland Security, (Immigration and Naturalization Service), Agency.
Larry W. Nave v. Department of Homeland Security
07A20116
July 15, 2003
.
Larry W. Nave,
Complainant,
v.
Tom Ridge,
Secretary,
Department of Homeland Security,
(Immigration and Naturalization Service),
Agency.
Appeal No. 07A20116
Agency No. I-99-C085
Hearing No. 310-A0-5163X
DECISION
Following its final order of June 11, 2002, the agency filed a timely
appeal which the Commission accepts pursuant to 29 C.F.R. � 1614.405.
On appeal, the agency requests that the Commission affirm its rejection
of an EEOC Administrative Judge's (AJ) order to pay complainant the
sum of $5,000.00 in compensatory damages for a violation of the Age
Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. �
621 et seq. For the following reasons, the Commission affirms the
agency's final order.
Complainant, a Special Agent employed at the agency's Immigration and
Naturalization Service in Boise, Idaho filed a formal EEO complaint with
the agency on April 9, 1999, alleging that the agency discriminated
against him on the basis of age (53) when he was (1) not selected
for the position of Criminal Investigator/Special Agent, GS-1811-12,
on January 15, 1999 and (2) constructively discharged in May 2000.
The agency accepted the complaint for investigation.
At the conclusion of the investigation, complainant was provided a
copy of the investigative report and requested a hearing before an AJ.
Accordingly, the materials associated with his case were forwarded to the
appropriate EEOC District Office and assigned to an AJ. After a hearing,
the AJ found that complainant had been discriminated against as alleged
when he was not selected for the position of Criminal Investigator/Special
Agent. The AJ further found that the circumstances surrounding this
case did not render complainant's working conditions so intolerable that
a reasonable person in his position would have been forced to leave,
quit, or retire, and therefore concluded that complainant's retirement
did not constitute a constructive discharge.
After rendering the finding of discrimination regarding the issue of
non-selection, the AJ ordered the agency to pay complainant the sum of
$5,000 in compensatory damages and post a notice explaining that it had
been found guilty of discrimination and confirming its commitment to
comply with the federal anti-discrimination statutes. In so doing, the
AJ noted that complainant was not entitled to attorney's fees. The AJ
further noted that complainant was not entitled to back pay because the
position denied him was at the same pay grade as the position he held
at the time of the non-selection. This Commission notes that the AJ
did not order the agency to place the complainant in the position he
had been denied presumably because he had already retired.
In its final order, the agency adopted the AJ's finding of discrimination
but rejected her order to pay complainant the sum of $5,000.00, and
simultaneously filed this appeal. On appeal, the agency, citing
Commission precedent, argues that complainant is not entitled to
compensatory damages because his claim of discrimination arose under
the ADEA, which does not provide for such damages. Complainant did
not appeal, nor did he provide a statement in opposition to the
agency's appeal. Accordingly, the sole issue before us is whether the
AJ appropriately ordered the agency to award complainant compensatory
damages for the discrimination to which he was subjected.
Upon review of the record, including arguments and evidence not
specifically discussed in this decision, this Commission agrees with
the agency's contention that compensatory damages are not available
under the ADEA. Established EEOC precedent is clear in that regard.
See Amaro v. United States Postal Service, EEOC Appeal No. 01A20929
(May 29, 2003), Czarnecki v. Department of Transportation, EEOC Appeal
No. 07A10096 (June 17, 2002), request for reconsideration denied, EEOC
Request No. 05A21003 (September 6, 2002). Thus, the agency's final
order is affirmed. However, in light of the finding of discrimination,
the Commission remands the matter to the agency to take corrective action
in accordance with this decision and the Order below.
ORDER
(1) The agency shall consider taking disciplinary action against
the recommending official identified as being responsible for the
discrimination perpetrated against complainant. 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.
(2) The agency shall train the recommending official in the area of
discrimination under the ADEA. The Commission does not consider training
to be discipline.
(3) The agency shall complete the above actions within ninety (90)
of the date this decision becomes final.
POSTING ORDER (G0900)
The agency is ordered to post at its Oklahoma City SubOffice in Oklahoma
City, Oklahoma 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
July 15, 2003
__________________
Date
POSTED BY ORDER OF THE
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
An Agency of the United States Government
This Notice is posted pursuant to an Order by the United States Equal
Employment Opportunity Commission dated which found that
a violation of the Age Discrimination in Employment Act of 1967 (ADEA),
as amended, 29 U.S.C. � 621 et seq., has occurred at this facility.
Federal law requires that there be no discrimination against any employee
or applicant for employment because of the person's RACE, COLOR, RELIGION,
SEX, NATIONAL ORIGIN, AGE, or DISABILITY with respect to hiring, firing,
promotion, compensation, or other terms, conditions or privileges of
employment. The Department of Homeland Security confirms its commitment
to comply with these statutory provisions.
The Department of Homeland Security 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
has been found to have discriminated on the basis of age when an employee
was not selected for a position for which he applied. The Department
of Homeland Security has been ordered to take corrective action in the
form of training the responsible management official in the area of age
discrimination and considering taking disciplinary action against the
responsible management official.
The Department of Homeland Security will ensure that officials responsible
for personnel decisions and the 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 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