04a00021
02-13-2001
Thomas Parnofiello, Petitioner, v. John Ashcroft Attorney General, Department of Justice, Agency.
Thomas Parnofiello v. Department of Justice
04A00021
February 13, 2001
.
Thomas Parnofiello,
Petitioner,
v.
John Ashcroft
Attorney General,
Department of Justice,
Agency.
Petition No. 04A00021
Appeal No. 01966451
Agency No. I936339
DECISION ON A PETITION FOR ENFORCEMENT
On July 12, 2000, the Equal Employment Opportunity Commission (EEOC or
Commission) docketed a petition for enforcement to examine the enforcement
of an order set forth in Thomas Parnofiello v. Department of Justice, EEOC
Appeal No. 01966451 (June 30, 1999).<1> 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 when the agency found that petitioner was not entitled to any back
pay and that compensatory damages were not appropriate in this case.
Petitioner filed a complaint in which he alleged that the agency
discriminated against him on the basis of his disability (brain
stem atrophy) when: (1) he was not selected for the position of
Intelligence/Vehicle (I/V) Seizure Officer; (2) he was denied a lateral
reassignment as a reasonable accommodation; and (3) he was harassed
and threatened with a fitness-for-duty examination after he declined
reassignment to a lower paying position. The agency accepted the
complaint for investigation and, when petitioner requested a FAD, the
agency issued one finding no discrimination. Petitioner appealed the
FAD to the Commission. In EEOC Appeal No. 01966451, the Commission
found that the agency discriminated against petitioner with respect
to his non-selection for the position of I/V Seizure Officer but also
found that the agency did not discriminate against petitioner on the
remaining claims.
Since the record indicated that petitioner could no longer perform the
I/V Seizure Officer position, the decision did not order the agency to
place petitioner in that petition. However, the decision found that
petitioner is entitled to any pay differential and/or overtime which he
might have received in the I/V Seizure Officer position as well as to
proven compensatory damages. The order specified that the agency had to
determine the amount of back pay and other benefits due to petitioner and
allowed the petitioner to file a petition for enforcement or clarification
of the amount if there is a dispute. The order also specified that the
agency conduct a supplemental investigation regarding petitioner's claim
for compensatory damages.
On March 14, 2000, petitioner submitted the petition for enforcement
at issue. Petitioner requests that the Commission order the agency to
comply and award him additional damages and attorney fees. The Commission
notes that the agency issued a final decision regarding petitioner's
entitlement to compensatory damages. Petitioner has filed an appeal of
that decision with the Commission and it is the subject matter of EEOC
Appeal No. 01A04204. Accordingly, this decision on enforcement will
not address the merits of petitioner's claim for compensatory damages.
Therefore, this decision will solely address the provision of the
Commission's order relating to back pay and any other benefits.
As to the issue of back pay and other benefits, the agency found, based on
its own review, that petitioner was not entitled to any back pay because
during the period in question, petitioner was at the same grade and
receiving Administrative Uncontrollable Overtime (AUO) as he would have
had he been selected for the I/V Seizure Officer position. The record
indicates that petitioner was a GS-11 Senior Border Patrol Agent with the
agency and was not selected for a GS-11 I/V Seizure Officer position.<2>
Since petitioner was at the same grade and receiving AUO as he would have
been in the I/V Seizure Officer position, the Commission finds that the
agency properly determined that petitioner is not entitled to back pay.
CONCLUSION
Based upon a thorough review of the record, consideration of the arguments
of the parties, and for the foregoing reasons, the Commission denies the
Petition for Enforcement of the order in Thomas Parnofiello v. Department
of Justice, EEOC Appeal No. 01966451 (June 30, 1999) with regard to
back pay. We find that the agency has complied with the provision in
the order related to back pay in the cited appeal.
STATEMENT OF PETITIONER'S RIGHTS - ON PETITION FOR ENFORCEMENT
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
February 13, 2001
__________________
Date
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
__________________
Date
______________________________
1On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply
to all federal sector EEO complaints pending at any stage in the
administrative process. Consequently, the Commission will apply
the revised regulations found at 29 C.F.R. Part 1614 in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.
2 The record indicates that the vacancy announcement listed the I/V
Seizure Officer position as GS-1896-11, with no potential for promotion.