0120071967
11-24-2009
Anthony Payne, Complainant, v. Janet Napolitano, Secretary, Department of Homeland Security, (Transportation Security Administration), Agency.
Anthony Payne,
Complainant,
v.
Janet Napolitano,
Secretary,
Department of Homeland Security,
(Transportation Security Administration),
Agency.
Appeal No. 0120071967
Hearing No. 150-2005-00375X
Agency No. HS03TSA000995
DECISION
On March 6, 2007, complainant filed an appeal with the Commission alleging
that the agency failed to comply with its final action dated July 19,
2006. The record indicates that in his complaint dated September 5, 2003,
complainant alleged discrimination in reprisal for prior EEO activity
when on August 12, 2003, he was terminated from his employment as a
Supervisory Screener at Orlando Airport, Orland, Florida.
The record indicates that at the conclusion of the investigation,
complainant requested a hearing before an EEOC Administrative Judge (AJ).
On June 6, 2006, the AJ, after a hearing, issued a decision finding that
complainant was discriminated against when he was terminated and ordered
the following relief:
(1) In accordance with EEOC Regulation, 29 C.F.R. � 1614.501(c),
the Agency shall reinstate complainant to the position of Supervisory
Transportation Security Screener, in the Orlando Airport, effective the
date of his termination. The evidence reveals that complainant served
almost eleven (11) months of his probationary period at the time of his
termination. Therefore, as the evidence reflects a lack of any documented
performance deficiencies, complainant may be deemed as having passed the
probationary period of one year. The agency shall also comply with the
provisions in EEOC Regulations found at 29 C.F.R. � 1614.105 involving
interim relief.
(2) Award complainant back pay commensurate with the pay and other
benefits he would have received, retroactive to the date he was terminated
from Orlando, Florida, less any amounts mitigated by monies earned in
other positions. Complainant shall cooperate with the agency in timely
providing all information necessary for those calculations. Under 29
C.F.R. � 1614.501, complainant is entitled to back pay computed in the
same manner prescribed by 5 C.F.R. 550.805, and other benefits he would
have received but for the retaliation.
(3) Complainant is entitled to any and all costs he has incurred as
a result of prosecuting his complaint, i.e., photocopies, travel,
etc. Complainant shall cooperate with the agency timely providing
all information and supporting documentation necessary for those
calculations.
(4) The agency shall expunge all reference to complainant's termination
and allegations of misrepresentation or falsification in all agency
records and files.
(5) Conduct training for supervisory and managerial staff at the Orlando,
Florida, TSA Offices. The training should detail their responsibilities
under the Civil Rights Act of 1964 and EEOC Regulations with respect
to eliminating retaliation in the Federal workplace in promotions,
assignments, hiring, firing, compensation, or other terms and conditions
of employment.
(6) The attached notice should be signed by the TSA Director of Orlando,
Florida. Copies of the notice, after being signed by the Director should
be posted by the agency immediately upon receipt. The Notice must be
displayed in the agency for 60 consecutive days, in conspicuous places,
including all places where notices to employees and applicants for
employment are customarily located. The agency should take reasonable
steps to ensure that said notice is not altered, defaced, or covered by
any other material.
On July 19, 2006, the agency issued its final order, implementing the
AJ's decision.
Thereafter, on October 15, 2006, complainant notified the agency that
it failed to comply with its final order. Specifically, complainant
claimed that he was not paid overtime, the interest of monies in his TSP
account, reimbursement of all the travel expenses, and his differential
pay while he was being subjected to administrative leave pending the
security clearance. Complainant also claimed that as of this date, he
was still on administrative leave and had not been directed to report for
work, and lost countless opportunities for career enhancement/promotions.
On appeal, complainant indicates he received a compliance report from
the agency dated April 6, 2007, and he states that the statements
in that report are inaccurate. The record is devoid of this report.
Complainant claims that he still has not received: interest on back pay,
moonlighting and additional employment, differential pay, leave accrued,
modified W2's, overtime, and student loan repayment benefits. On appeal,
complainant also submits the agency's electronic message from Person
A, Senior Counsel, dated January 30, 2007, in response to his claims
of noncompliance. Therein, Person A stated that he is not aware of
any non-compliance by the agency with the AJ's order and states that
the agency has complied with that order. We deem this statement to
constitute a decision finding that the agency has not failed to comply
with its July 19, 2006 final action. The agency however provides no
evidence of its actions to support its decision.
EEOC Regulation 29 C.F.R. � 1614.504 provides that a final action that
has not been the subject of an appeal or civil action is binding on
the agency, and that if a complainant believes the agency has failed
to comply with the terms thereof, s/he shall notify the agency within
30 days of learning of the alleged noncompliance. If, after 35 days
from the agency's receipt of complainant's written allegations of
noncompliance, complainant is not satisfied with the agency's attempt
to resolve the matter, complainant may appeal to the Commission for a
determination as to whether the agency has complied with the terms of
the final decision. See 29 C.F.R. � 1614.504(b).
In response to complainant's alleged noncompliance, the agency stated that
it complied with the terms of its final action. However, the agency does
not provide any evidence as to whether it took any corrective actions to
support its compliance. Without such evidence in the record, we cannot
determine whether the agency has failed to comply with the terms of its
final action due to its insufficient evidence.
Accordingly, the agency's final decision is VACATED and the matter is
REMANDED to the agency in accordance with the Order below.
ORDER
Within 30 days of the date this decision becomes final, the agency shall
supplement the record with evidence indicating whether it complied with
the terms of its final action and issue a decision on complainant's claim
of the agency noncompliance. A copy of the agency's decision must be
sent to the Compliance Officer as referenced herein.
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
11/24/09
__________________
Date
2
0120071967
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013