05a10061
01-04-2001
Melveice Harris, Complainant, v. Agency.
Melveice Harris v. Department of Transportation (FAA)
05A10061
January 4, 2001
.
Melveice Harris,
Complainant,
v.
Agency.
Request No. 05A10061
Appeal No. 01976745
Agency No. 1-95-1093
DENIAL OF REQUEST FOR RECONSIDERATION
The complainant initiated a request to the Equal Employment Opportunity
Commission (EEOC or Commission) to reconsider the decision in Melveice
Harris v. Department of Transportation (FAA), EEOC Appeal No. 01976745
(September 27, 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).
After a review of the complainant'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.
In the prior decision, the Commission concluded that the complainant was
discriminated against when the agency failed to grant him a religious
accommodation by denying him Sunday as a Regular Off Day. As part of the
relief granted to complainant the Commission ordered that �[t]he agency
shall provide training to the responsible management and union officials,
and all other supervisors at the Northeast Philadelphia Air Traffic
Control Tower facility, as to the current state of the law on employment
discrimination, and particularly the �Guidelines on Discrimination
Because of Religion' contained at EEOC Regulation 29 C.F.R. � 1605.2.�
In his request for reconsideration, the complainant contends that since
the time the original complaint was filed he has been promoted to the
position of Air Traffic Manager and that to require him to participate
in or receive discrimination training would be punitive in nature.
Complainant further claims that since the responsible management and
union officials are no longer employed at the facility in question,
the prescribed remedy �would do nothing to educate those individuals,
the Agency, and the Union as a whole.�
We disagree. While it is unfortunate that the responsible officials are
no longer at the relevant facility, the Commission does not believe that
the ordered remedy, that supervisory personnel at the facility receive
training in the state of the law on religious discrimination, somehow
punishes complainant because he now is a member of the supervisory
staff.<2> Pursuant to our regulations, each agency shall maintain
a continuing affirmative program to promote equal opportunity and
to identify and eliminate discriminatory practices and policies.
In support of this program, the agency shall: review, evaluate and
control managerial and supervisory performance in such a manner as to
insure a continuing affirmative application and vigorous enforcement of
the policy of equal opportunity, and provide orientation, training and
advice to managers and supervisors to assure their understanding and
implementation of the equal employment opportunity policy and program.
29 C.F.R. � 1614.102(a)(5). (Emphasis added). Hence, as a supervisor,
complainant is required to participate in the training attendant to
the enforcement of equal opportunity policy. Moreover, having been
the recipient of religious discrimination, complainant should be in a
position to share the benefit of his experience with his colleagues.
While we appreciate complainant's concern and desire that training be
ordered agency wide, this requested remedy is beyond the confines of
the instant matter, as the discrimination complained of occurred at
and pertained to the facility in question. Nevertheless, we remind the
agency of its obligations under our regulations to maintain an agency
wide continuing affirmative program to eliminate discriminatory practices
and policies.
The decision in EEOC Appeal No. 01976745 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
(1) The agency shall immediately restore any annual leave that the
complainant has been forced to use to satisfy his religious obligations.
The agency shall determine the appropriate amount of annual leave benefits
due the complainant, pursuant to 29 C.F.R. � 1614.501, no later than
sixty days after the date this decision becomes final. The complainant
shall cooperate in the agency's efforts to compute the amount of benefits
due, and shall provide all relevant information requested by the agency.
If there is a dispute regarding the exact amount of leave to restore,
the agency shall restore to the complainant the undisputed amount within
sixty (60) calendar days of the date the agency determines the amount
it believes to be due. 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.�
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 benefits due the complainants, including evidence
that all corrective action has been implemented.
(2) The agency shall make an effort to reasonably accommodate, on short
and long term bases, the complainant's religious beliefs in accordance
with EEOC guidelines at 29 C.F.R � 1605.2., including, but not limited
to, exploration of the use of compensatory time as a flexible scheduling
alternative.
(3) The agency shall provide training to the responsible management and
union officials, and all other supervisors at the Northeast Philadelphia
Air Traffic Control Tower facility, as to the current state of the
law on employment discrimination, and particularly the �Guidelines on
Discrimination Because of Religion� contained at EEOC Regulation 29
C.F.R � 1605.2.
POSTING ORDER (G0900)
The agency is ordered to post at its Northeast Philadelphia Air Traffic
Control Tower 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.
ATTORNEY'S FEES (H0900)
If complainant has been represented by an attorney (as defined by
29 C.F.R. � 1614.501(e)(1)(iii), he/she is entitled to an award of
reasonable attorney's fees incurred in the processing of the complaint.
29 C.F.R. � 1614.501(e). The award of attorney's fees shall be paid
by the agency. The attorney shall submit a verified statement of fees
to the agency -- not to the Equal Employment Opportunity Commission,
Office of Federal Operations -- within thirty (30) calendar days of this
decision becoming final. The agency shall then process the claim for
attorney's fees in accordance with 29 C.F.R. � 1614.501.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0900)
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
January 4, 2001
__________________
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 Title VII of the Civil Rights Act of 1964,
as amended, 42 U.S.C. � 2000e 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 Department of Transportation, Federal Aviation Administration,
Northeast Philadelphia Air Traffic Control Tower (PNE), supports and
will comply with such Federal law and will not take action against
individuals because they have exercised their rights under law.
The PNE, has been found to have discriminated on the basis of religion
(Christian) when the agency failed to reasonably accommodate two
complainants that had requested Sundays as a regular day off. The PNE
has been ordered to take corrective action in the form of restoration of
any annual leave that the complainants have been forced to use to satisfy
their religious obligations, making an effort to continue to provide
a reasonable accommodation to the individuals discriminated against on
short and long term bases and training for the responsible officials.
The PNE 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 PNE 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. � 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 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.
2While the complainant states in his request for reconsideration that the
responsible management and union officials are no longer employed at the
Northeast Philadelphia Air Traffic Control Tower facility, the record does
not disclose whether those officials are still employed by the agency.
If the responsible officials are still employed by the agency in any
facility they are bound by the Commission's Order to attend the subject
training.