05A20746
08-08-2002
Billy R. McManis, Complainant, v. Gordon R. England, Secretary, Department of the Navy, Agency.
Billy R. McManis v. Department of the Navy
05A20746
August 8, 2002
.
Billy R. McManis,
Complainant,
v.
Gordon R. England,
Secretary,
Department of the Navy,
Agency.
Request No. 05A20746
Appeal No. 01996498
Agency Nos. 95-65888-011
95-65888-037
Hearing Nos. 340-95-3960X
340-97-3000X
DENIAL OF REQUEST FOR RECONSIDERATION
The Department of the Navy (agency) initiated a request to the Equal
Employment Opportunity Commission (EEOC or Commission) to reconsider
the decision in Billy R. McManis v. Department of the Navy, EEOC
Appeal No. 01996498 (April 5, 2002). EEOC Regulations provide that the
Commission may, in its discretion, reconsider any previous Commission
decision where the requesting party demonstrates 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. See 29 C.F.R. �
1614.405(b).
After a review of the agency's request for reconsideration, the previous
decision, and the entire record, the Commission finds that the request
fails to meet the criteria of 29 C.F.R. � 1614.405(b), and it is the
decision of the Commission to deny the request. The decision in EEOC
Appeal No. 01996498 remains the Commission's final decision. There is no
further right of administrative appeal on the decision of the Commission
on this request for reconsideration.
ORDER
The agency is ordered to take the following remedial action:
The agency shall determine whether complainant is eligible for field
service duty. If the agency determines that complainant is eligible,
then it shall provide him with field service duty in the same manner
it would other Sheet Metal Mechanics.
The agency shall determine the appropriate amount of back pay in
lost overtime and premium pay (with interest, if applicable) 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 shall consider taking disciplinary action against the agency's
management officials identified as being responsible for the unlawful
retaliation 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.
The issues of compensatory damages and attorney's fees and costs shall be
determined by the Hearings Unit of the EEOC Los Angeles District Office.
The agency is directed to submit a copy of the complaint file to the
EEOC Hearings Unit within fifteen (15) calendar days of the date this
decision becomes final. The agency shall provide written notification
to the Compliance Officer at the address set forth below that complaint
file have been transmitted to the Hearings Unit. Thereafter, the
Administrative Judge must be assigned in an expeditious manner to
further process the issues of compensatory damages and attorney's fees
and costs in accordance with the regulations.
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 backpay 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 Naval Aviation Depot in Coronado,
California, 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.
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (P0900)
This decision of the Commission is final, and there is no further right
of administrative appeal from the Commission's decision. 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.
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
August 8, 2002
__________________
Date
NOTICE TO EMPLOYEES
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 violations of Title VII of the Civil Rights Act of 1964 (Title VII),
as amended, 42 U.S.C. � 2000e et seq., 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 the Navy, Naval Air Station, North Island, in Coronado,
California, 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 the Navy, Naval Air Station, North Island, in Coronado,
California, has been ordered to remedy an employee affected by the
Commission's finding that he was subjected to discriminatory retaliation
because of his prior EEO activity. As a remedy for the discrimination,
the Department of the Navy, Naval Air Station, North Island, in Coronado,
California, has been ordered to determine the employees entitlement to
any lost overtime pay and premium pay and to field service assignments.
The Department of the Navy, Naval Air Station, North Island, in Coronado,
California, has also been ordered to consider taking disciplinary action
against the responsible agency officials. The Department of the Navy,
Naval Air Station, North Island, in Coronado, California, 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.
The Department of the Navy, Naval Air Station, North Island, in Coronado,
California, 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