Joseph T. Varley, Complainant,v.Janet Reno, Attorney General, Department of Justice, (Federal Bureau of Investigation), Agency.

Equal Employment Opportunity CommissionMay 18, 2000
05990274 (E.E.O.C. May. 18, 2000)

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.