05A20820
08-08-2002
Carlos Trevino, Complainant, v. John Ashcroft, Attorney General, Department of Justice, Agency.
Carlos Trevino v. Department of Justice
05A20820
August 8, 2002
.
Carlos Trevino,
Complainant,
v.
John Ashcroft,
Attorney General,
Department of Justice,
Agency.
Request No. 05A20820
Appeal No. 01995963
Agency No. I-96-9012
Hearing No. 360-98-8647X
DENIAL OF REQUEST FOR RECONSIDERATION
The Department of Justice (agency) timely initiated a request to the Equal
Employment Opportunity Commission (EEOC or Commission) to reconsider
the decision in Carlos Trevino v. Department of Justice, EEOC Appeal
No. 01995963 (May 8, 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. 01995963 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 within 60
calendar days of the date this decision becomes final, unless otherwise
noted:
(1) The agency shall issue a new 1996-97 performance evaluation
in accordance with this decision. Complainant's new performance
evaluation shall reflect an overall score of �Excellent� and shall
be in compliance with all applicable internal agency regulations and
procedures. The agency shall remove the former �Fully Successful�
performance evaluation from all of its records and shall substitute
the new �Excellent� evaluation for 1996-97. The agency shall provide
a copy of the new performance evaluation to the Compliance Officer
referenced herein.
(2) The agency shall, within thirty (30) calendar days of the date this
decision becomes final, offer to retroactively promote complainant to a
GS-11, Border Patrol Agent position at the Immigration and Naturalization
Service Border Patrol located in Falfurrias, Texas. Complainant shall
be given a minimum of fifteen days from receipt of the offer of promotion
within which to accept or decline the offer. Failure to accept the offer
within the time period set by the agency will be considered a rejection
of the offer, unless complainant can show that circumstances beyond his
control prevented a response within the time limit.
(3) The agency shall determine the appropriate amount of back pay,
if any, with interest; overtime pay, if any, with interest; and other
benefits due complainant, pursuant to 29 C.F.R. � 1614.501, less any
appropriate offsets. The time period for purposes of back pay shall
be from the effective date of the last GS-11 promotion selection at
the Falfurrias station that was based on a promotion list created as a
result of the 1996-97 performance appraisals until the date complainant
accepts and starts, or declines the non-conditional offer of promotion
provided for in paragraph (2) above<1>. The complainant shall cooperate
in the agency's efforts to compute the amount of back pay, overtime 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, overtime 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 enforcement or clarification must
be filed with the Compliance Officer, at the address referenced in the
statement entitled �Implementation of the Commission's Decision.�
(4) The agency shall pay complainant non-pecuniary compensatory damages
in the amount of $5,000.
(5) The agency shall pay complainant's reasonable attorney's fees and
costs in accordance with the paragraph below entitled, �Attorney Fees.�
(6) The agency shall post a notice of the finding of discrimination in
accordance with the paragraph below entitled, �Posting Order.�
(7) The agency shall consider taking disciplinary action against the
responsible management official. The agency shall report its decision
regarding the disciplinary action to the Commission. 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.
(8) The agency shall conduct EEO training for the responsible management
official cited in the complaint at issue herein. Such training shall
include, but not be limited to, training on the agency's obligations
under Title VII.
(9) The agency is further directed to submit a report of compliance, as
provided in the paragraph entitled �Implementation of the Commission's
Decision.� The report shall include supporting documentation of the
agency's calculation of back pay, overtime pay, and other benefits due
complainant as well as of the agency's other actions in compliance with
this order.
POSTING ORDER (G0900)
The agency is ordered to post at its Falfurrias, Texas border patrol
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.
ATTORNEY'S FEES (H0900)
If complainant has been represented by an attorney (as defined by
29 C.F.R. � 1614.501(e)(1)(iii), he/she is entitled to an award of
reasonable attorney's fees incurred in the processing of the complaint.
29 C.F.R. � 1614.501(e). The award of attorney's fees shall be paid
by the agency. The attorney shall submit a verified statement of fees
to the agency -- not to the Equal Employment Opportunity Commission,
Office of Federal Operations -- within thirty (30) calendar days of this
decision becoming final. The agency shall then process the claim for
attorney's fees in accordance with 29 C.F.R. � 1614.501.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)
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 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.
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
1To the extent that complainant received a promotion to a GS-11 Border
Patrol Agent position prior to the ending date outlined in paragraph (3),
we order that the back pay period shall end on the date that complainant
received said promotion.