05990274
05-18-2000
Joseph T. Varley, Complainant, v. Janet Reno, Attorney General, Department of Justice, (Federal Bureau of Investigation), Agency.
Joseph T. Varley v. Department of Justice
05990274
May 18, 2000
Joseph T. Varley, )
Complainant, )
) Request No. 05990274
v. ) Appeal No. 01972338
) Agency No. F-95-4684
) Hearing No. 340-95-3958X
Janet Reno, )
Attorney General, )
Department of Justice, )
(Federal Bureau of Investigation), )
Agency. )
____________________________________)
DENIAL OF REQUEST FOR RECONSIDERATION
On December 31, 1998, the Department of Justice (agency) initiated a
request to the Equal Employment Opportunity Commission (Commission)
to reconsider the decision in Joseph Varley v. Department of Justice,
EEOC Appeal No. 01972338 (December 3, 1998).<1> EEOC Regulations provide
that the Commissioners may, in their 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 64 Fed. Reg. 37,644, 37,654 (1999) (to be codified and
hereinafter referred to as 29 C.F.R. � 1614.405(b)).
After a review of complainant's request for reconsideration, the previous
decision, and the entire record, the Commission finds complainant's
request does not meet the criteria of 29 C.F.R. � 1614.405(b), and
it is the decision of the Commission to deny complainant's request.
The decision of the Commission in EEOC Appeal No. 01972338 remains the
Commission's final decision. There is no further right of administrative
appeal from a decision of the Commission on a request for reconsideration.
ORDER
The agency is ORDERED to take the following remedial action:
1. Within thirty (30) calendar days of the date this decision becomes
final, the agency is directed to offer complainant a part-time Polygraph
Examiner position with the Los Angeles Division, or a substantially
similar position, retroactive to the date when the original part-time
Polygraph Examiner position was filled.
2. The agency shall determine the appropriate amount of back pay,
interest, if applicable, and other benefits due complainant, pursuant to
64 Fed. Reg. 37,644, 37,659 (to be codified and hereinafter referred to
as 29 C.F.R. � 1614.501), no later than sixty (60) calendar days after
the date this decision becomes final. Complainant shall cooperate in the
agency's efforts to compute the amount of back 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 and/or benefits,
the agency shall issue a check to complainant for the undisputed amount
within sixty (60) calendar days of the date the agency determines the
amount it believes to be due. Complainant may petition for enforcement or
clarification of the amount in dispute. The petition for clarification
or enforcement referenced in the statement entitled "Implementation of
the Commission's Decision."
3. The agency shall take corrective, curative, and preventive action to
ensure that age discrimination does not recur, including but not limited
to, within sixty (60) days of receipt of this decision, providing training
to the responsible official(s) at the FBI, Los Angeles Division, Los
Angeles, California in the law against employment discrimination. Within
thirty (30) calendar days of the date the training is completed, the
agency shall submit to the compliance officer appropriate documentation
evidencing completion of such training.
4. 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 of the
agency's calculation of back pay and other benefits due complainant,
including evidence that the corrective action has been implemented.
POSTING ORDER (G1092)
The agency is ORDERED to post at its FBI, Los Angeles Division, Los
Angeles, California facility 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.
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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (P0400)
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:
May 18, 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 after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
Date
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
An Agency of the United States Government
This Notice is posted pursuant to an Order by the United States Equal
Employment Opportunity Commission dated ______________________ which found
that a violation of the Age Discrimination in Employment Act of 1967
(ADEA), as amended, 29 U.S.C. � 621 et seq. has occurred at this facility.
Federal law requires that there be no discrimination against any employee
or applicant for employment because of the person's RACE, COLOR, RELIGION,
SEX, NATIONAL ORIGIN, AGE, or PHYSICAL or MENTAL DISABILITY with respect
to hiring, firing, promotion, compensation, or other terms, conditions
or privileges of employment.
The Federal Bureau of Investigation, Los Angeles, California, (hereinafter
"FBI"), supports and will comply with such Federal law and will not
take action against individuals because they have exercised their rights
under law.
The FBI has been found to have discriminated on the basis of age when
a special agent, age 53, was not selected to the position of part-time
Polygraph Examiner. The FBI has been ordered to take corrective action
in the form of (1) offering a position to the aggrieved individual; (2)
awarding back pay, interest, and other benefits; and (3) training for the
responsible official. The FBI will ensure that officials responsible
for personnel decisions and terms and conditions of employment will
abide by the requirements of all Federal equal employment opportunity
laws and will not retaliate against employees who file EEO complaints.
The FBI will not in any manner restrain, interfere, coerce, or retaliate
against any individual who exercises his or her right to oppose practices
made unlawful by, or who participates in proceedings pursuant to,
federal equal employment opportunity law.
Date Posted:
Posting Expires:
29 C.F.R. Part 1614
1On 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.