05a60006
10-27-2005
Otis Johnson, Jr., Complainant, v. Stephen L. Johnson, Acting Administrator, Environmental Protection Agency, Agency.
Otis Johnson, Jr. v. Environmental Protection Agency
05A60006
October 27, 2005
.
Otis Johnson, Jr.,
Complainant,
v.
Stephen L. Johnson,
Acting Administrator,
Environmental Protection Agency,
Agency.
Request No. 05A60006
Appeal No. 07A30128
Agency No. 2002-0016-R4
Hearing No. 110-A3-8034X-LL
DENIAL
Otis Johnson, Jr. (complainant) timely requested reconsideration of the
decision in Otis Johnson, Jr. v. Environmental Protection Agency, EEOC
Appeal No. 07A30128 (August 11, 2005). EEOC Regulations provide that
the Commission may, in its discretion, grant a request to 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 reconsidering the previous decision and the entire record,<1>
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. 07A30128 remains the
Commission's final decision. There is no further right of administrative
appeal on the decision of the Commission on this request. The agency
shall comply with the Order as set forth below.
ORDER (D0403)
The agency is ordered to take the following remedial action:
The agency shall, within 90 calendar days from the date this decision
is final, promote complainant retroactively to the effective date of
the Selectee's promotion to the position of Program Management Officer,
GS-340-14, or a substantially equivalent position.
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, no later than 60 calendar days after the date this decision
becomes final. The 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 the complainant for the undisputed amount within 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 shall consider taking disciplinary action against
the management officials identified as being responsible for the
discrimination found. The agency shall report its decision. If the
agency decides to take disciplinary action, it shall identify the action
taken. If the agency decides not to take disciplinary action, it shall
set forth the reason(s) for its decision not to impose discipline.
The agency shall render the amount of $2,500 to complainant in
compensatory damages within 30 calendar days from the date this decision
becomes final.
The agency shall complete all of the above actions within 120 calendar
days from the date on which the decision becomes final.
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 backpay and other benefits due complainant,
including evidence that the corrective action has been implemented.
POSTING ORDER (G0900)
The agency is ordered to post at its facility in Atlanta, Georgia,
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.
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 27, 2005
__________________
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 (Title
VII), 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 DISABILITY with respect to hiring, firing,
promotion, compensation, or other terms, conditions or privileges of
employment.
The Environmental Protection Agency facility in Atlanta, Georgia, supports
and will comply with such Federal law and will not take action against
individuals because they have exercised their rights under law.
The Environmental Protection Agency facility in Atlanta, Georgia, has
been ordered to remedy an employee affected by the Commission's finding
that he was discriminated against because of his race. As a remedy
for the discrimination, the agency was ordered, among other things:
to promote the affected employee; to calculate back pay; and to provide
compensatory damages. The Environmental Protection Agency facility in
Atlanta, Georgia, 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.
The Environmental Protection Agency facility in Atlanta, Georgia, 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
1Complainant's non-selection claims for Vacancy Notices AIR 01-11 and
AIR 01-13 will be addressed in Appeal No. 01A41688 which is currently
pending with the Commission.