01973405
06-02-1999
Ernest R. Foushee, Appellant, v. Rodney E. Slater, Secretary, Department of Transportation, Agency.
Ernest R. Foushee v. Department of Transportation
01973405
June 2, 1999
Ernest R. Foushee, )
Appellant, )
)
v. ) Appeal No. 01973405
) Agency No. 91-0221
Rodney E. Slater, )
Secretary, )
Department of Transportation, )
Agency. )
________________________________)
DECISION
Appellant filed an appeal with the Commission from the agency's January
29, 1997 decision alleging that the agency had not complied with the terms
of a June 24, 1993 final agency decision (FAD). The instant matter was
the subject of a prior Commission decision in Foushee v. Department of
Transportation, EEOC Appeal No. 01952731 (Aug. 28, 1996).
The agency issued a FAD on June 24, 1993 concerning a complaint filed
by appellant on April 15, 1991 (agency number 91-0221). Foushee,
EEOC Appeal No. 01952731. In the FAD the agency stated that in the
complaint appellant had alleged that he was discriminated against on the
basis of race (Black) when he was not selected for the position of Civil
Aviation Security Specialist, vacancy announcement numbers ASO-89-B-190
and ASO-90-B-221. Id.
In the June 24, 1993 FAD the agency made a "finding of discrimination"
and ordered the following corrective action:
1. Place the complainant in a Civil Aviation Security Specialist (GS-7)
position, Raleigh-Durham Airport, with back pay and all benefits from
1990.
2. Take appropriate disciplinary action against the employee/employees
who engaged in the discriminatory action as per 29 C.F.R., section
1614.102(6).
3. Attorney's fees, as per Title 29 C.F.R. Part 1614.501(e).
Appellant alleged that the agency did not comply with the June 24,
1993 FAD and on May 22, 1996 the agency found that it did comply with
the June 24, 1993 FAD. Id. In our prior decision we stated:
EEOC Regulation 29 C.F.R. �1614.504(a) provides that a "final
decision that has not been the subject of an appeal or civil action
shall be binding on the agency." That section further provides that
if the complainant believes that the agency has failed to comply
with the terms of a final decision, the complainant shall notify the
Director of Equal Employment Opportunity of the alleged noncompliance.
29 C.F.R. �1614.504(a). If the agency does not resolve the matter to
a complainant's satisfaction, then a complainant may file an appeal
with the Commission for a determination as to whether the agency has
complied with the terms of the final decision. Id. at �1614.504(b).
"The complainant may file such an appeal 35 days after he or she has
served the agency with the allegations of noncompliance . . ." Id.
. . . .
The Commission finds that appellant has not alleged a breach of corrective
action 2 (disciplinary action) or corrective action 3 (attorney's fees)
of the June 24, 1993 FAD. Regarding corrective action 1, we find that
the record shows that appellant received a check from the agency dated
January 3, 1994 in the amount of $10,737.52. Appellant has not argued
that he should have received more monies or benefits under the corrective
actions listed in the June 24, 1993 FAD.
The only issue appellant is apparently contending regarding compliance
with the FAD is what position he should be placed in. Corrective action 1
required that appellant be placed in a Civil Aviation Security Specialist
(GS-7) position, Raleigh-Durham Airport. The agency found that appellant
was not placed in a Civil Aviation Security Inspector position because
he was not granted a "security clearance."
Id.
The Commission found in the prior decision:
The Commission finds that appellant's allegations of breach of the
June 24, 1993 FAD must be remanded to the agency for a supplemental
investigation. The Commission finds that the record is insufficient to
show that the agency complied with the portion of corrective action 1
requiring the agency to place appellant into a Civil Aviation Security
Specialist (GS-7) position. The agency's May 22, 1996 decision concerns
a Civil Aviation Security Inspector position (no grade provided) which
is a different title than the position described in corrective action 1.
On remand, the agency shall provide evidence showing whether the Civil
Aviation Security Inspector position (no grade provided) referred
to in the May 22, 1996 decision is the same as the Civil Aviation
Security Specialist (GS-7) position referred to in corrective action 1.
The agency apparently has not placed appellant into the position listed
in corrective action 1 and has not claimed that it placed him into an
equivalent position (or offered him an equivalent position). Therefore,
we shall remand appellant's noncompliance allegation so that the agency
can show that it has complied with the placement portion of corrective
action 1.
On appeal to the Commission appellant also raises various allegations of
retaliation which appear to be related to the agency's processing of the
relief provided in the June 24, 1993 FAD. If appellant wishes to pursue
such actions then he must contact an EEO Counselor pursuant to �1614.105
to file an individual complaint of discrimination pursuant to �1614.106.
There is no such complaint in the record concerning these allegations
of retaliation. The Commission offers no opinion as to whether such
allegations, if raised in a complaint, would state a claim under �1614.103
or �1614.106(a).
Id.
On January 29, 1997 the agency issued a decision finding that the agency
had complied with the terms of the June 24, 1993 FAD. The agency found
that appellant was not placed into the position specified in corrective
action 1 because appellant did not meet the requirement of a security
clearance for that position. In an affidavit the Program Analyst, Civil
Aviation Security Division stated that the position at issue requires
that the incumbent possess a security clearance. The record contains a
letter dated November 4, 1994 from the Manager, Civil Aviation Security
Division, informing appellant that his security clearance was denied.
The Commission finds that because appellant was not able to obtain a
security clearance the agency is not able to give appellant all of the
relief ordered by the agency in the June 24, 1993 FAD. The Commission
will not order the agency to place appellant into a position that requires
a security clearance without appellant having such a security clearance.
Therefore, we do not find that the agency has breached the June 24,
1993 FAD. The remedy originally provided by the June 24, 1993 FAD,
however, is now different. The agency is offering no further remedy in
place of the position appellant was to be given in corrective action 1.
Under the circumstances the Commission finds that because placement
of appellant into the position specified in corrective action 1 is
now not possible, the agency should issue a new decision specifying
the remedy appellant is to be provided (or has been provided) for the
finding of discrimination. In the new decision appellant should be
informed of his appeal rights to the Commission pursuant to �1614.110.
Although appellant had the opportunity to appeal the June 24, 1993
FAD upon receipt of the June 24, 1993 FAD, appellant has not had the
opportunity to appeal the remedy that did not contain placement into
the GS-7 position. Therefore, we shall vacate the agency's January 29,
1997 decision and remand the matter so that the agency may issue a new
decision specifying the new remedy for the finding of discrimination.
The Commission VACATES the agency's decision finding that it complied with
the June 24, 1993 FAD and we REMAND the matter to the agency for further
processing in accordance with this decision and applicable regulations.
ORDER
Within 30 days of the date this decision becomes final the agency shall
issue a new decision concerning the remedy to be provided appellant in
accordance with the agency's finding that the agency discriminated against
appellant as alleged in the April 15, 1991 complaint. The agency's new
decision shall provide appeal rights to the Commission in accordance
with 29 C.F.R. �1614.110. The agency shall supply a copy of its new
decision to the Compliance Officer as referenced herein.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0595)
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 appellant. If the agency does not comply with the Commission's
order, the appellant may petition the Commission for enforcement of
the order. 29 C.F.R. �1614.503 (a). The appellant 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. �� 1614.408, 1614.409, and 1614.503 (g). Alternatively,
the appellant 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. �� 1614.408 and 1614.409. 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
appellant files a civil action, the administrative processing of the
complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. �1614.410.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and be submitted to the Director, Office of
Federal Operations, Equal Employment Opportunity Commission, P.O. Box
19848, Washington, D.C. 20036. In the absence of a legible postmark,
the request to reconsider shall be deemed filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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. �l6l4.604(c).
RIGHT TO FILE A CIVIL ACTION (R0993)
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. It is the position of the Commission that 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. You should be aware, however, that courts in some
jurisdictions have interpreted the Civil Rights Act of 1991 in a manner
suggesting that a civil action must be filed WITHIN THIRTY (30) CALENDAR
DAYS from the date that you receive this decision. To ensure that your
civil action is considered timely, you are advised to file it WITHIN
THIRTY (30) CALENDAR DAYS from the date that you receive this decision
or to consult an attorney concerning the applicable time period in the
jurisdiction in which your action would be filed. 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 (Z1092)
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:
June 2, 1999
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations