0120083453
02-10-2009
Ramon Fira, Complainant, v. Ed Schafer, Secretary, Department of Agriculture, Agency.
Ramon Fira,
Complainant,
v.
Ed Schafer,
Secretary,
Department of Agriculture,
Agency.
Appeal No. 0120083453
Agency No. FSIS-2004-050262
DECISION
On August 6, 2008, complainant filed an appeal from the agency's June 12,
2007 final decision concerning his equal employment opportunity (EEO)
complaint alleging employment discrimination in violation of Title VII
of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. �
2000e et seq. The appeal is deemed timely and is accepted pursuant to
29 C.F.R. � 1614.405(a).
In a formal EEO complaint dated February 2, 2005, complainant alleged
that the agency discriminated against him on the bases of national
origin (Hispanic) and reprisal for prior protected EEO activity when
management issued him a five-day suspension for "improper conduct,"
which was effective February 16, 2004. At the conclusion of an agency
investigation, complainant was provided with a copy of the report of
investigation and notice of his right to request a hearing before an
EEOC Administrative Judge (AJ). Complainant requested a hearing but,
in December 2005, the AJ remanded the matter to the agency for a final
decision.
On June 12, 2007, the agency issued a final decision finding
discrimination based on national origin and no discrimination based
on reprisal. Specifically, the agency found that complainant showed
by a preponderance of the evidence that the reasons articulated by the
agency for the suspension were pretext. The final decision ordered
corrective action; including the removal of the five-day suspension
and all related documents from complainant's official personnel
file and all other agency records, back-pay for February 16 - 20,
2004 to be calculated by the agency, compensatory damages as proven
by complainant, attorney's fees and cost if appropriate, posting of a
Notice of Discrimination, and consideration of corrective action against
the responsible management officials. Regarding compensatory damages,
the agency stated; "[c]omplainant shall submit a claim to . . . the
[a]gency within 60 days of receipt of this decision . . . [t]he [a]gency
will have 30 days to submit rebuttal evidence to the [c]omplainant and
to the Office of Civil Rights. A separate decision on compensatory
damages will be issued." As to attorney's fees and costs, the final
decision stated; "the [c]omplainant's representative shall submit a
verified statement of attorney's fees and costs . . . within 30 days of
receipt of this decision . . . [t]he agency may respond . . . within
30 days of its receipt. A separate decision . . . will be issued."
On August 6, 2008, complainant filed the instant appeal alleging that
the agency has failed to comply with its July 2007 final order. In his
appeal, complainant stated that he submitted a statement of attorney's
fees and compensatory damages on July 18, 2007 and August 17, 2007,
respectively, and that the agency has failed to submit rebuttal evidence
or issue subsequent final decisions. Complainant stated that, on several
occasions, he requested final decisions on remedies and informed the
agency of its non-compliance and failure to act in good faith.
EEOC regulations provide that a final agency action that has not been
the subject of an appeal shall be binding on the parties. 29 C.F.R. �
1614.504(a). The regulations further provide that if a complainant
believes that the agency has not complied with the terms of the final
decision, that he or she shall so advise the agency within thirty
days of the date on which the complainant knew or should have known
of the non-compliance. Id. If the complainant is not satisfied with
the agency's response, he or she may appeal to the Commission for a
determination as to whether the agency is in compliance with the terms
of its final decision. 29 C.F.R. � 1614.504(b).
Here, the record reveals that in paragraphs (3) and (4) under Order
of Relief of its June 12 final order, the agency awarded complainant
compensatory damages to the extent he is able to prove his damages and
attorney's fees and costs as appropriate. Further, the final order
indicated the agency may issue rebuttal evidence and required the
issuance of subsequent decisions regarding the respective remedies.
We find that the agency has failed to provide a rebuttal response to
complainant's Summer 2007 remedy requests or to issue a final decision
as to compensatory damages or attorney's fees and costs. Hence, we find
that the agency is non-compliant with its June 12, 2007 final order.
Accordingly, pursuant to 29 C.F.R. � 1614.504(c), we order the agency
to comply with its final decision consistent with this decision and the
Order below.
ORDER
The agency shall consider complainant's written request and evidence
relating to compensatory damages and, if necessary, within 30 calendar
days of receipt of this decision, submit rebuttal evidence to the
complainant. Regardless of whether rebuttal evidence is deemed
necessary and submitted, the agency shall issue a final decision as
to compensatory damages within 60 calendar days of receipt of this
decision. Complainant shall cooperate with the agency's efforts to
compute compensatory damages.
The agency shall consider complainant's written request and evidence
relating to attorney's fees and costs and, if necessary, within 30
calendar days of receipt of this decision, submit rebuttal evidence to the
complainant. Regardless of whether rebuttal evidence is deemed necessary
and submitted, the agency shall issue a final decision as to attorney's
fess and costs within 60 calendar days of receipt of this decision.
Complainant shall cooperate with the agency's efforts to compute said
remedy.
Evidence documenting compliance with this Order must be sent to the
Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K1208)
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 77960, Washington,
DC 20013. 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 (M1208)
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 77960,
Washington, DC 20013. 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 (R0408)
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 (Z1008)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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 with
the Court 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 10, 2009
__________________
Date
2
0120083453
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
5
0120083453