0420100016
02-01-2011
Jesus Clemente, Petitioner, v. Eric H. Holder, Jr., Attorney General, Department of Justice, Agency.
Jesus Clemente,
Petitioner,
v.
Eric H. Holder, Jr.,
Attorney General,
Department of Justice,
Agency.
Petition No. 0420100016
Appeal No. 0720080012
Agency No. B022448
DECISION ON A PETITION FOR ENFORCEMENT
On July 26, 2010, the Equal Employment Opportunity Commission (EEOC or
Commission) docketed a petition for enforcement to examine the enforcement
of an Order set forth in Jesus Clemente v. Department of Justice, Appeal
No. 0720080012 (January 8, 2009). The Commission accepts this petition
for enforcement pursuant to 29 C.F.R. � 1614.503. Petitioner alleged
that the Agency failed to fully comply with the Commission's order.
BACKGROUND
Initially, Petitioner filed a complaint in which he alleged that
the Agency discriminated against him on the bases of national origin
(Hispanic) and sex (male) in violation of Title VII of the Civil Rights
Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq., when the
Agency failed to select him for one of four Immigration Judge positions.
An EEOC Administrative Judge (AJ) issued a decision without a hearing
finding that the Agency had discriminated against Petitioner. The Agency
in its final decision rejected the AJ's finding of discrimination.
Petitioner appealed the agency's final decision to the Commission, and
in Appeal No. 0720080012, the Commission found that the Agency failed
to articulate legitimate, nondiscriminatory reasons for its selection
decisions.
Thereafter, the Commission ordered the Agency to, in pertinent part:
1. place [Petitioner] in the position he would have occupied absent
the discrimination or a substantially equivalent position if the
original position no longer existed. The employment offer was to be
made in writing within 30 days from the date this decision became final.
[Petitioner] has 15 days from receipt of the offer within which to accept
or decline the offer. Failure to accept the offer within the 15 day
period would be considered a decline of the offer, unless [Petitioner]
could show that circumstances beyond his control prevented a response
within the time limit.
If the offer were accepted, appointment was to be retroactive to the
date Petitioner would have been hired. Back pay, computed in the
manner prescribed by 5 C.F.R. � 550.805, was to be awarded from the
date Petitioner would have entered on duty until the date he actually
entered on duty. The Commission's order indicated that Petitioner would
be deemed to have performed service for the Agency during this period
for all purposes except for meeting service requirements for completion
of a required probationary or trial period.
The matter was assigned to an EEOC Compliance Officer and docketed as
Compliance No. 0620090210 on January 13, 2009.
On July 26, 2010, Petitioner submitted the petition for enforcement
at issue. Petitioner contends that the Agency has failed to make him
whole, because his request for transfer to Honolulu, Hawaii, San Diego
or East Mesa, California, has not been approved. Petitioner asserts
that the Agency's argument that it is bound by the Collective Bargaining
Agreement (CBA) is not true. Petitioner argues that the CBA was not
in existence in 2002 when Petitioner would have been hired absent
the Agency's discrimination; therefore, he maintains the CBA is not
applicable to him. Assuming arguendo that the CBA is applicable,
Petitioner argues that Article 14 of the CBA subscribes to the idea
that orders regarding discrimination should be followed. Therefore,
Petitioner maintains that his transfer should be automatically granted
to ensure that the Commission's Order to make him whole is followed.
Petitioner contends that the person hired instead of him for the York,
Pennsylvania Immigration Judge position in 2002, transferred from York
to Atlanta Georgia several years ago. Petitioner indicates that he has
not been provided with any evidence that she was subjected to transfer
restrictions before the Agency allowed her to transfer. Further,
Petitioner contends that he also requested a transfer via a hardship
transfer procedure due to his wife's bunion surgery but he maintains
that this request was denied as well. Petitioner asserts that while he
is aware that there are openings in at least two of the offices that he
desires, management has blocked his request to transfer.
Petitioner also contends that the Agency has improperly reduced his
back pay by deducting Federal Employee Group Life Insurance (FEGLI)
premiums based upon his Immigration Judge salary during the back pay
period as opposed to an Immigration and Customs Enforcement (ICE) Trial
Attorney insurance premium. Petitioner argues that he should have
been charged at the Trial Attorney rate because he was not employed
by the Executive Office of Immigration Review (EOIR) until March 28,
2010, and therefore he was forced to pay FEGLI premium rates that
neither he nor his survivors could have legally received. Therefore,
Petitioner requested the difference between the premiums from the Agency
but his request was denied. Additionally, Petitioner argues that the
Agency erred in calculating his Thrift Savings Plan (TSP) contributions
which could result in tax complications for excess TSP contributions.
Petitioner maintains that his requests for explanation and correction have
gone unanswered. Finally, Petitioner contends that the confidentiality
of this matter was compromised by the EEOC's Compliance Officer's contact
with the Agency's attorney. Petitioner maintains that the Compliance
Officer informed the Agency's attorney that an acknowledgment order in
the enforcement action had been issued. Petitioner asserts that this
information should not have been provided to the attorney because he had
never filed an Entry of Appearance in this case. Petitioner alleges that
the EEOC's Compliance Officer is biased in favor of the Agency.
In response, the Agency contends that the Commission's Order does not
require that Petitioner be transferred to Honolulu, Hawaii, or San Diego,
California. The Agency asserts that it has made Petitioner whole by
placing him in a position where he would have been were it not for the
unlawful discrimination. The Agency notes that based on the Commission's
regulation and precedent, a prevailing party has no claim or entitlement
to a position in another location, other than that of the position he
would have occupied, because of personal preference or even due to change
in circumstances. Further, the Agency maintains that the CBA does not
support Petitioner's argument that he has an entitlement to a transfer.
The Agency contends that the Petitioner's argument lacks merit both
factually and legally. The Agency maintains that it has always retained
discretion regarding voluntary transfers even though prior to 2006, the
Agency and the union had no CBA regarding this matter. In March 2009, the
Agency and the Union amended the CBA to create a reassignment register,
which still gives the Agency discretion as to how vacancies are filled.
The Agency contends that the Petitioner's argument that the Agency would
have been compelled to select him for transfer had a 2002 start date
been used is self serving and erroneous.
Further, with regard to the FEGLI premiums, the Agency asserts
that it correctly deducted these premiums from the back pay award.
The Agency notes that pursuant to the Office of Federal Employee Group
Life Insurance, FEGLI death benefits are paid based on the Agency's
Certification of Insurance Status. Therefore, had petitioner died
between April 7, 2002, and March 28, 2010, his enter-on-duty date, the
Agency would have certified to OFEGI the appropriate Immigration Judge's
salary and insurance coverage, and awarded any beneficiary accordingly.
Finally, with respect to Petitioner's TSP issue, the Agency asserts
that it has taken reasonable steps to mitigate against any TSP
tax consequences. The Agency explains that it has consulted with
a representative of the National Finance Center (NFC) concerning
Petitioner's TSP tax issue. An audit was performed and the Agency
learned for the first time that there was a period during the back pay
period when Petitioner made TSP contributions while on military service.
As a consequence of the audit, the NFC, at the Agency's direction,
has applied any TSP contributions that exceeded the maximum annual
contribution limit for each respective year of the back pay period to
"catch up" contributions in those years where Petitioner did not reach
the maximum limit for "catch up" contributions. Therefore, the Agency
maintains that its endeavors to resolve this issue have diminished the
likelihood of any tax penalty against Petitioner with respect to its
administration of his TSP benefits in back pay. Further the Agency
asserts that Petitioner's allegation of impropriety in a communication
from the EEOC's Compliance Officer to the Agency regarding the docketing
of the Petition is unfounded as the attorney had worked on this case.
ANALYSIS AND FINDINGS
Petitioner requests that the Agency's brief not be considered because
it is untimely. The Commission finds that other than the Petitioner's
statement regarding when the Agency should have received the Petition,
he has provided no evidence to support his allegation of untimeliness.
Upon review of this matter the Commission finds that the Agency has
complied with the Commission's Order with respect to all issues in
dispute. Specifically, the Order does not on its face or in any other
manner entitle Petitioner to the location of his choosing. The Agency
was only required to make Petitioner whole by placing him in the position
where he would have been were it not for the unlawful discrimination.
See King v. United States Postal Service, Appeal No. 01A30082 (Mar. 5,
2004); Wiley v. United States Postal Service, EEOC Request No. 05930520
(Mar. 24, 1994); and Kahmann v. Dep't of Justice, EEOC Petition
No. 04939993 (Dec. 3, 1993).
The Agency has explained that the Petitioner's request to be transferred
to Honolulu, Hawaii, or San Diego, California is subject to the CBA
regarding relocation. Petitioner asserts that a 2002 date should be used
for seniority purposes with regard to his transfer request; however,
as stated in our Order, Petitioner was still within his trial period.
Therefore, with an official start date of March 28, 2010, he would be
ineligible to voluntary transfer according to the CBA until his trial
period ends. Although not required to do so, the record shows that
the Agency has attempted to accommodate the Petitioner's request by
waiving the trial period requirement and adding him to the reassignment
register.
Next, the Commission notes that Petitioner's argument regarding FEGLI
premiums also fails. The Commission finds that the Petitioner is not
entitled to any reimbursement of these premiums. The record indicates
that Petitioner's beneficiaries would have been entitled to benefits
at the Judge's rate during the period in question. The Commission
finds that the Agency has adequately explained the reason for the FEGLI
deduction in his back pay. See Pulido v. Dep't of the Air Force, EEOC
Petition No. 04910006 (Jul. 19, 1991). Further, with respect to the TSP
tax consequences, the Commission finds that the Agency has adequately
explained the steps that it has taken to rectify this problem, and to
assure that Petitioner will not suffer a tax consequence.1
Finally, with regard to Petitioner's complaint regarding the EEOC's
Compliance Officer sharing with the Agency that a petition had been filed
regarding this matter, the Commission finds that the Petitioner has not
provided any evidence which demonstrates that any impropriety occurred.
The Commission finds that after a review of the instant Petition for
Enforcement, the submission of the Petitioner's brief, the Agency's
response thereto, the prior Commission's decision, and the entire record,
it is the decision of the Commission to DENY the Petition. There is no
right of administrative appeal from this denial.
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S0610)
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. If you
file a request to reconsider and also file a civil action, filing a civil
action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z0610)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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 with
the Court 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
___2/1/11_______________
Date
1 In the event that Petitioner does suffer tax consequences, he would
be able to file a Petition for Enforcement providing evidence that the
Agency was not in compliance.
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0420100016
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0420100016