05a00692
10-13-2000
Keith Beck, Complainant, v. Janet Reno, Attorney General, Department of Justice, (Federal Bureau of Prisons). Agency.
Keith Beck v. Department of Justice
05A00692
October 13, 2000
.
Keith Beck,
Complainant,
v.
Janet Reno,
Attorney General,
Department of Justice,
(Federal Bureau of Prisons).
Agency.
Request No. 05A00692
Appeal No. 01983326
Agency No. P-95-8687X
Hearing No. 340-96-3843X
DENIAL OF REQUEST FOR RECONSIDERATION
The agency initiated a request to the Equal Employment Opportunity
Commission (EEOC or Commission) to reconsider the decision in Keith Beck
v. Department of Justice , EEOC Appeal No. 01983326 (March 30, 2000).<1>
EEOC Regulations provide that the Commission may, in its 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 29 C.F.R. � 1614.405(b).
The final agency decision (FAD) which was the subject of the Commission's
March 30, 2000 decision found that complainant was discriminated
against on the basis of disability in violation of Section 501 of
the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29
U.S.C. � 791 et seq.<2> when the agency failed to attempt to reassign
him to a different position as a reasonable accommodation. On appeal,
the Commission concluded, inter alia, that the agency improperly denied
complainant compensatory damages. Specifically, the prior decision found
that the agency did not make a good faith effort to offer complainant
reasonable accommodation, and therefore was not exempt from providing
proven compensatory damages pursuant to 42 U.S.C. � 1981a(a)(3).
In its request for reconsideration, the agency contends that: (1)
complainant had an obligation to identify vacant positions for which
he was qualified and to which he could be reassigned; (2) there were
no vacant positions within the same appointing authority for which
complainant was qualified, because all such positions required the
performance of emergency services; and (3) the agency accommodated
complainant in ways other than reassignment.
The agency's first contention is without merit because it improperly
places on complainant the burden of identifying vacant positions.
"The employer is in the best position to know which jobs are vacant or
will become vacant within a reasonable period of time." EEOC Enforcement
Guidance on Reasonable Accommodation and Undue Hardship Under the
Americans With Disabilities Act, question 28 (March 1, 1999) (Guidance).
After obtaining information from the employee about his qualifications
and interests, "the employer is obligated to inform [him] about vacant
positions for which s/he may be eligible as a reassignment." Id.
The agency's second and third contentions are also without merit, because
they are contradicted by the agency's own FAD. The FAD specifically
concluded that the responsible agency officials had failed to even
consider reassignment as a possible accommodation for complainant, and
therefore were liable for failing to accommodate complainant. See FAD
at 14. The FAD also specifically rejected as disingenuous management's
contention that complainant was not qualified to perform emergency
services due to his disability. FAD at 15. Accordingly, we will not
now entertain the agency's contention that it cannot be held accountable
for failing to attempt to reassign complainant to another position.
Accordingly, after a review of the agency's request for reconsideration,
the previous decision, and the entire record, the Commission finds that
the request fails to meet the criteria of 29 C.F.R. � 1614.405(b), and
it is the decision of the Commission to deny the request. The decision
in EEOC Appeal No. 01983326 remains the Commission's final decision.
There is no further right of administrative appeal on the decision of
the Commission on this request for reconsideration.
ORDER (D1092)
The agency is ORDERED to take the following remedial action:
1. If the agency has not remitted complainant's back pay by the date
this decision is issued, then within thirty (30) calendar days of the
date this decision is issued, complainant must submit to the agency the
underlying documentation it has requested regarding his interim earnings
in mitigation of his back pay claim. Upon receipt of complainant's
submission of the relevant documentation, the agency shall determine the
appropriate amount of back pay, with interest, and other benefits due
complainant, pursuant to 29 C.F.R. � 1614.501, and will remit payment
to complainant no later than thirty (30) calendar days after receipt
of complainant's submission. If there is a dispute regarding the exact
amount of back pay and/or benefits, the agency shall issue a check to the
complainant for the undisputed amount within the time frame allotted.
The complainant may petition for enforcement or clarification of the
amount in dispute. The petition for clarification or enforcement must
be filed with the Compliance Officer, at the address referenced in the
statement entitled "Implementation of the Commission's Decision."
Within thirty (30) calendar days of the date this decision is issued,
the agency shall remit payment to complainant of compensatory damages
in the amount of $25,000.
3. If the agency has not remitted complainant's back pay by the date
this decision is issued, then within thirty (30) calendar days of the date
this decision is issued, the agency must remit payment to complainant of
attorney's fees in the amount of $7,812.50, as agreed by the parties,
with interest running from January 10, 1998 until the date of payment,
as well as an additional $750 in appellate fees.
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,
and verification that payment of back pay, compensatory damages, and
attorney's fees due have been remitted to complainant.
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 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 29 C.F.R. � 1614.409).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (P0900)
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
October 13, 2000
__________________
Date
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 29 C.F.R. Part 1614 in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.
2The Rehabilitation Act was amended in 1992 to apply the standards in
the Americans with Disabilities Act (ADA) to complaints of discrimination
by federal employees or applicants for employment.