04970003
04-14-2000
Carlos Gutierrez, Complainant, Janet Reno, Attorney General, Department of Justice, Agency.
Carlos Gutierrez v. Department of Justice
04970003
April 14, 2000
Carlos Gutierrez, )
Complainant, )
)
) Petition No. 04970003
) Appeal No. 01942709
Janet Reno, ) Agency Nos. I-87-5483
Attorney General, ) I-88-5554
Department of Justice, ) Hearing Nos. 360-93-8264X
Agency. ) 360-93-8265X
______________________________)
DECISION ON PETITION FOR ENFORCEMENT
BACKGROUND
On October 16, 1996, Carlos Gutierrez (petitioner) initiated a petition
for enforcement (the Petition) to the Equal Employment Opportunity
Commission (EEOC) requesting enforcement of a February 26, 1996 Commission
Order. In the February 26, 1996 Order, the Department of Justice (the
agency) was directed to redress petitioner for acts of discrimination
based on his disability in violation of the Rehabilitation Act of 1973,
as amended, 29 U.S.C. � 791 et seq. The petition for enforcement is
accepted by this Commission in accordance with 64 Fed. Reg. 37,644,
37,659 (to be codified at 29 C.F.R. � 1614.405).<1>
In Appeal No. 01942709, the Commission issued a decision finding that the
agency discriminated against petitioner on the basis of his disability
when, in March 1987, he was not selected for the position of Legalization
Adjudicator, GS-1801-5/7/9. In its Order, the Commission directed the
agency to do the following:
(1) place petitioner in a Legal Adjudicator, GS-1801-5/7/9 position, or
if this position was no longer available, in a substantially equivalent
position to the one he would have occupied had he
originally been awarded the position. The position was to be awarded
retroactive to the date petitioner would have been hired;
(2) award petitioner backpay, plus interest, from the effective date
petitioner would have occupied the Legal Adjudicator position as well as
all benefits associated with the position which he would have received
but for the discrimination; and,
(3) post a notice at its offices in El Paso, Texas.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. � 1614.503(a) provides that a complainant may
petition the Commission for enforcement of a decision issued under the
Commission's appellate jurisdiction. The petition shall be submitted
to the Office of Federal Operations.
Placement in Position
By letter dated December 26, 1996, the agency informed the Commission
that the Legal Adjudicator position no longer existed at the agency but
that petitioner's official personnel folder was adjusted to reflect his
reassignment to a Legal Adjudicator position in 1987. Standard Form -50
records forwarded by the agency indicate that the agency adjustments
included petitioner's promotion to the GS-9 level effective in March
1989. The agency also informed the Commission that on September 21, 1991,
petitioner was reassigned to a GS-07 Information Status Verifier position,
a substantially equivalent position. The record additionally shows that in
March 1997, petitioner was offered the position of Paralegal Specialist
(FOIA)/PA), GS-950-7/9, in the agency's El Past District Office, El
Paso, Texas. The position was offered to petitioner at the GS-7 grade
level. In April, 1997, petitioner accepted this offer.
In a February 21, 1997, letter to the Commission regarding his Petition,
petitioner discusses his backpay award but makes no mention of the
agency's obligation to promote him and petitioner provides no other
specific contentions regarding this aspect of the Commission's Order.
It appears from the record that the agency has complied with its
obligation to promote petitioner to a position substantially equivalent to
the one he would have occupied absent the discrimination and, as noted,
petitioner has offered no information to indicate otherwise. However,
we view the agency's retroactive promotion of petitioner to the
GS-9 level in March 1989 as an indication that petitioner would have
reached that grade level through career ladder promotion as of that
date, if he had not been denied placement in the position in 1987 due
to discrimination. Therefore, the agency is required to retroactively
afford him that GS-9 grade level as of the date of his September 1991
reassignment and downgrade.
Backpay
By letter dated December 26, 1996, the agency informed the Commission
that on November 26, 1996, the appropriate paperwork was forwarded to
the National Finance Center to implement petitioner's backpay award of
$10,963.64 for the years of 1987 through 1991 with the money to be placed
in petitioner's bank account on December 30, 1996. The record contains
a Payroll Action Request, dated November 26, 1996, indicating that this
action was taken. In the February 21, 1997 letter, mentioned above,
petitioner asks for a written report as to the criteria utilized by the
agency to arrive at the $10,963.64 amount.
It appears that the agency reimbursed petitioner with regard to some
of the backpay that he is due. However, the record indicates that as
of 1991, petitioner was, at least on the record, moved from the Legal
Adjudicator position at the GS-9 grade level to an Immigration Status
Verifier position at the GS-7 level. There is no evidence that petitioner
received an appropriate amount of backpay for the years of 1991 onward
when he occupied the GS-7 job. Accordingly, we remand this aspect of the
Petition and order the agency to grant petitioner appropriate backpay for
the years, from 1991 on, when he occupied the Immigration Status Verifier
and later the Paralegal Specialist position at the GS-7 grade level.
Posting Order
The agency submitted a copy of the appropriate Posting Notice indicating
that the Notice was posted on August 13, 1996, with posting to expire
on November 12, 1996. Therefore, the Commission finds that the agency
has complied with this aspect of the Order.
ORDER (C1199)
The agency is ORDERED to take the following remedial action:
Within sixty (60) days of the date this decision becomes final,
the agency shall repromote petitioner to the GS-9 grade level in his
present Paralegal Specialist position and award petitioner an appropriate
amount of backpay, plus interest, with regard to the salary he would have
received had he continued since September 21, 1991, in the Immigration
Status Verifier position at the GS-9 grade level instead of at the
GS-7 grade level. The agency shall include with this award appropriate
documentation relating to the backpay award.
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 verifying
that the corrective action has been implemented.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K1199)
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 64
Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter
referred to as 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)(Supp. V 1993). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 64 Fed. Reg. 37,644, 37,659 (1999)
(to be codified and hereinafter referred to as 29 C.F.R. � 1614.409).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (Q1199)
This decision affirms the agency's final decision/action in part, but it
also requires the agency to continue its administrative processing of a
portion of your complaint. 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 on both that portion
of your complaint which the Commission has affirmed AND that portion
of the complaint which has been remanded for continued administrative
processing 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 (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:
April 14, 2000
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing. I certify that
the decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
_______________________ ___________________________
Date Equal Employment Assistant
1 On 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 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.