01a00220
03-21-2000
Raul Matias, Complainant, v. Bruce Babbitt, Secretary, Department of the Interior, Agency.
Raul Matias, )
Complainant, )
)
v. ) Appeal No. 01A00220
) Agency No. FNP-98-031
Bruce Babbitt, )
Secretary, )
Department of the Interior, )
Agency. )
)
DECISION
The complainant timely filed an appeal with this Commission from a final
decision, dated August 31, 1999, which the agency issued pursuant to
EEOC Regulation 29 C.F.R. �1614.110.<1> The Commission accepts the
complainant's appeal pursuant to 64 Fed. Reg. 37,644, 37,659 (1999)
(to be codified at 29 C.F.R. � 1614.405).
The final agency decision found that the complainant failed to prove
that the agency discriminated against him based on his national
origin (Hispanic) <2>when it did not select him for the position of
Private, Motorcycle Unit, Special Forces Branch, Operations Division,
Washington Metropolitan Area. The decision found, however, that the
selecting official's testimony established that the selecting official
had planned to select the complainant for assignment to the Motorcycle
Unit until he learned that the complainant was contemplating filing an
EEO complaint because he believed he had not been selected for such an
assignment based on his national origin. Based on this testimony, the
decision found that the agency discriminated against the complainant
in reprisal for opposing a discriminatory practice. To remedy the
reprisal discrimination, the agency ordered eight remedial actions
including the amendment of agency records to show that the complainant
had �participated� in the Motorcycle Unit between September 1997 and the
time he was promoted to Sergeant in the spring of 1998. The agency also
ordered the National Park Service to determine which special events and
other Motorcycle Unit activities the complainant would have participated
in, and determine if he would have earned special pay or overtime pay
for his participation in such activities. The agency specified that any
award of special pay or overtime pay would be calculated in accordance
with the Backpay Act, 5 U.S. C. 5202. The agency ordered additional
corrective actions including the posting of a notice that discrimination
had been found and appropriate actions taken, the provision of training,
and consideration as to whether discipline should be imposed.
On appeal, the complainant contends that the work �participated� should
be changed to �assigned� to define the complainant's duties during
the relevant period of time. The complainant also contends that the
calculation of backpay, overtime, and other compensatory damages should
be adjusted accordingly.
After a review of the record in its entirety, the Commission finds
that the preponderance of the evidence of record establishes that
discrimination based on retaliation, but not national origin, occurred.
In so finding, the Commission notes that the complainant was protected
from reprisal for opposing a practice which he reasonably believed was
unlawful, that is, the selecting official's failure to select him for
one of several Motorcycle Unit vacancies over a period of several months,
allegedly based on his national origin.
In designing remedial relief once a finding of prohibited discrimination
has been made, the agency was required to attempt to make the complainant
whole for discrimination suffered, by placing him so far as possible in
the situation he would have occupied if the wrong had not been committed.
See Franks v. Bowman Transportation Co., 424 U.S. 747, 764 (1976);
Albemarle Paper Co. v. Moody, 422 U.S. 405, 418-419 (1975); 29
C.F.R. � 1614.501. The Commission finds that the agency provided some,
but not all, possible relief. If the reprisal discrimination had not
occurred in the instant case, the complainant would have been assigned
to the Motorcycle Unit from the date in September 1997 that Officer S
was assigned to the Motorcycle Unit instead of the complainant, to the
date of the complainant's promotion to Sergeant, apparently sometime in
the Spring of 1998. He would have gained several months of experience in
the Motorcycle Unit which, according to the selecting official, might
have made him a better Sergeant. He also would have gained whatever
additional pay and overtime opportunities that Officer S gained by his
assignment to the Unit during the relevant period of time. It appears
that the agency ordered that the complainant be given whatever additional
special pay and overtime pay he would have earned but for the reprisal
discrimination. However, the agency did not provide the complainant
with an opportunity to gain the experience denied him. In so finding,
the Commission recognizes the difficulty of providing such experience
given the complainant's subsequent promotion to Sergeant. The Commission
finds that the agency's records should be amended to show that he was
�assigned� to the Motorcycle Unit, rather than �participated� in the Unit
between the date in September 1997 that Officer S was assigned to the
Unit and the complainant's promotion to Sergeant in the Spring of 1998.
The Commission does not find any basis for an adjustment of compensatory
damages because no compensatory damages were sought by the complainant.
CONCLUSION
For the reasons stated above, the Commission MODIFIES the agency's
corrective actions and REMANDS the complaint to the agency for processing
as ORDERED below.
ORDER (D1199)
The agency is ORDERED to take the following remedial actions in addition
to corrective actions 3 through 6 and 8 set forth in the final agency
decision:
1. The agency shall amend its records to show that the complainant
was assigned to the Motorcycle Unit between the date when Officer S
was assigned to the Motorcycle Unit, on or about September 21, 1997,
and the date when the complainant was promoted to Sergeant, sometime in
the Spring of 1998.
2. The agency shall determine the appropriate amount of back pay
(with interest, if applicable) and other benefits due complainant,
pursuant to 29 C.F.R. � 1614.501, no later than sixty (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 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."
3. The agency shall meet with the complainant and reach an agreement
on the ways in which the agency will provide the complainant with
opportunities to gain the Motorcycle Unit experience he would have gained
but for the reprisal discrimination. If the parties do not reach an
agreement, the agency shall offer the complainant assignments with the
Motorcycle Unit for one year whenever additional motor cycle officers
are needed other than the officers assigned to the Unit on a full-time
basis.<3>
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 backpay and other benefits due complainant,
including evidence that the corrective action has been implemented.
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).
ATTORNEY'S FEES (H1199)
If complainant has been represented by an attorney (as defined by 64
Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter
referred to as 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.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
The Commission may, in its discretion, reconsider the decision in this
case if the complainant or the agency submits a written request containing
arguments or evidence which tend to establish 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.
Requests to reconsider, with supporting statement or brief, MUST BE FILED
WITH THE OFFICE OF FEDERAL OPERATIONS (OFO) WITHIN THIRTY (30) CALENDAR
DAYS of receipt of this decision or WITHIN TWENTY (20) CALENDAR DAYS OF
RECEIPT OF ANOTHER PARTY'S TIMELY REQUEST FOR RECONSIDERATION. See 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
to as 29 C.F.R. � 1614.405); Equal Employment Opportunity Management
Directive for 29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999).
All requests and arguments must be submitted to the Director, Office of
Federal Operations, Equal Employment Opportunity Commission, P.O. Box
19848, Washington, D.C. 20036. In the absence of a legible postmark, the
request to reconsider shall be deemed timely filed if it is received by
mail within five days of the expiration of the applicable filing period.
See 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. � 1614.604). The request or opposition must
also include proof of service on the other party.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely, unless extenuating circumstances
prevented the timely filing of the request. Any supporting documentation
must be submitted with your request for reconsideration. The Commission
will consider requests for reconsideration filed after the deadline only
in very limited circumstances. See 29 C.F.R. � 1614.604(c).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (T1199)
This decision affirms the agency's final decision/action in part, but it
also requires the agency to continue its administrative processing of a
portion of your complaint. 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 on both that portion
of your complaint which the Commission has affirmed AND that portion
of the complaint which has been remanded for continued administrative
processing. In the alternative, you may file a civil action AFTER
ONE HUNDRED AND EIGHTY (180) CALENDAR DAYS of the date you filed your
complaint with the agency, or your appeal with the Commission, until
such time as the agency issues its final decision on your complaint.
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. If you file
a request to reconsider and also file a civil action, filing a civil
action will terminate the administrative processing of your complaint.
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:
March 21, 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 of mailing. I certify that the
decision was mailed to the complainant, the complainant's representative,
and the agency on:
DATE Equal Employment Assistant1On 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.
2The final agency decision indicated that the complainant alleged
discrimination based on his race (Hispanic). However, the Commission
views �Hispanic� is a national origin category, not a racial category,
as referenced herein.
3The one-year period reflects the part-time nature of such occasional
assignments.