01986515
02-25-2000
Jeffery L. Wozniak, Complainant, v. Janet Reno, Attorney General, Department of Justice, (Federal Bureau of Prisons), Agency.
Jeffery L. Wozniak v. Department of Justice
01986515
February 25, 2000
Jeffery L. Wozniak, )
Complainant, ) Appeal No. 01986515
)
v. ) Agency No. P948415
)
Janet Reno, )
Attorney General, )
Department of Justice, )
(Federal Bureau of Prisons), )
Agency. )
______________________________)
DECISION
Jeffery L. Wozniak (hereinafter complainant) filed an appeal with this
Commission from a final decision of the Department of Justice (agency)
concerning the remedies awarded to him by the agency pursuant to the
Rehabilitation Act of 1973, as amended, 29 U.S.C. � 791 et seq.<1>
In the Final Agency Decision (FAD), issued on November 14, 1996, the
agency adopted the administrative judge's (AJ) decision recommending
a finding of discrimination. Specifically, the agency found that it
had discriminated against complainant, on the basis of his physical
disability (post traumatic arthritis), when he was non-selected for a
Correctional Officer position. However, the FAD slightly altered the
remedies proposed by the AJ.
The AJ recommended the following: (1) appointment of complainant to the
position of Correctional Officer, GS-6, at the Allenwood, Pennsylvania
facility<2> retroactive to the date of the non-selection (November 24,
1993); (2) award of appropriate back pay, with interest and benefits
calculated in accordance with 5 C.F.R. � 550.805, retroactive to the
date of complainant's non-selection; (3) the review and revision of
the agency's policy and practices in the conduct of its pre-employment
medical examination to ensure compliance with the EEOC's regulations;
(4) withdrawal of the agency's objection to complainant's eligibility
for appointment to the Correctional Officer GS-6 position which had
been submitted to the United States Office of Personnel Management; and
(5) posting a notice of discrimination at the Allenwood, Pennsylvania
facility. The AJ also found that complainant failed to provide sufficient
evidence of compensatory damages and, accordingly, recommended that such
a remedy not be awarded.
In the FAD, the agency awarded the following remedy: (1) that complainant
be appointed to the position of Correctional Officer GS-6 retroactive to
the date of the non-selection;<3> (2) that the agency award back pay to
complainant, with interest and benefits, less mitigation; and (3) that
the agency take whatever steps are necessary to withdraw its objection to
complainant's eligibility filed with the Office of Personnel Management.
The record reflects that on November 22, 1996, complainant accepted the
findings and conclusions of the FAD and requested to be transferred to the
Eglin Federal Correctional Camp, located in Eglin, Florida. In January,
1997, complainant was instructed to report for duty as a Correctional
Officer GS-6 on February 3, 1997 at the Federal Correctional Complex
in Coleman, Florida. Complainant claims that he was not retroactively
appointed to this position and served a one-year probationary period.
Following his one-year probationary period, on September 1, 1998,
complainant filed this appeal.
On appeal, complainant asserts that: (1) the agency failed to award him
the proper amount of back pay, interest and benefits; (2) the agency
failed to retroactively place him into the Correctional Officer position;
(3) the agency improperly relocated complainant to the Coleman, Florida
facility rather than the Eglin, Florida facility (his preferred location);
(4) the agency failed to award him attorney's fees; (5) the agency failed
to award him compensatory damages; (6) the agency failed to award him
clothing maintenance allowances; and (7) the agency failed to pay the
moving costs to Coleman, Florida.
After a review of the record herein, we find this appeal untimely,
insofar as it challenges the merits of the FAD and seeks to change
the FAD. The FAD was issued on November 14, 1996 and was accepted by
complainant on November 22, 1996. Moreover, complainant did not file an
appeal until September 1, 1998, approximately 20 months late. See 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
to as 29 C.F.R. � 1614.402). Accordingly, we find that allegations 4
through 7 above are untimely, since they seek remedies not originally
provided in the FAD.
To the extent that complainant is attempting to allege that the agency
failed to comply with its FAD, we find the filing of an appeal under
29 C.F.R. � 1614.401 to be premature. The proper procedure for raising
noncompliance with a final agency decision is set forth in 29 C.F.R. �
1614.504. See 64 Fed. Reg. 37,644, 37,659 (1999) (to be codified and
hereinafter referred to as 29 C.F.R. � 1614.504) If a complainant
believes that the agency has failed to comply with the terms of its
own final action, the complainant shall notify the EEO Director of the
alleged noncompliance "within 30 days of when the complainant knew or
should have known of the alleged noncompliance." 29 C.F.R. � 1614.504(a).
In addition, 29 C.F.R. � 1614.504(b) provides:
"The agency shall resolve the matter and respond to the complainant in
writing. If the agency has not responded to the complainant, in writing,
or if the complainant is not satisfied with the agency's attempt to
resolve the matter, the complainant may appeal to the Commission for a
determination as to whether the agency has complied with the ... final
decision. The complainant may file such an appeal 35 days after he or
she has served the agency with the allegations of noncompliance, but
must file an appeal with 30 days of his or her receipt of an agency's
determination."
We find that the claims which are numbered 1-3 herein-above, are
properly viewed as claims of the agency's non-compliance with its final
agency decision. While complainant's notice of non-compliance facially
appears untimely, without deciding the issue of timeliness, we remand
this matter to the agency in accordance with our Order below and note
that a dismissal is improper unless the agency can show that complainant
previously received notice of his rights under 29 C.F.R. � 1614.504.
See Loos v. DOT, EEOC Appeal No. 01982278 (March 10, 1999), citing
Ballentine v. TVA, EEOC Request No. 05950598 (March 14, 1996).
For the foregoing reasons, it is the decision of the Equal Employment
Opportunity Commission to DISMISS allegations 4-7 above and REMAND the
non-compliance claims (1-3) to the agency to process in accordance with
29 C.F.R. � 1614.504 and our Order below.
ORDER (D1092)
The agency is ORDERED to process this matter in accordance with 29
C.F.R. � 1614.504, including, but not limited to, the following:
The receipt of this Order shall constitute formal notice by the agency
of non-compliance with its FAD;
The agency shall engage in good faith efforts to resolve the matter; and
The agency shall respond to complainant, on all issues of non- compliance,
in writing, within thirty-five (35) days from the date the agency receives
this Order.
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).
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1199)
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
64 Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. � 1614.405). All requests and arguments must 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
timely filed if it is received by mail within five days of the expiration
of the applicable filing period. See 64 Fed. Reg. 37,644, 37,661 (1999)
(to be codified and hereinafter referred to as 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 (R1199)
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 (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:
2/25/00
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 after it was mailed. I certify
that this 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.
2 Complainant worked at this location at the time of the non-selection.
3 However, instead of relocating complainant to Pennsylvania, pursuant
to his request, the agency agreed to relocate complainant to his choice
of either the Coleman, Florida or Eglin, Florida facilities.