04990005
03-24-2000
) Request No. 05940516
Om Parkash Kalra v. Department of Transportation
04990005
March 24, 2000
Om Parkash Kalra, )
Petitioner, )
)
v. ) Petition No. 04990005
) Request No. 05940516
) Appeal No. 01924002
)
Rodney E. Slater, )
Secretary, )
Department of Transportation, )
Agency. )
____________________________________)
DENIAL OF PETITION FOR ENFORCEMENT
INTRODUCTION
On October 9, 1998, the Equal Employment Opportunity Commission,
docketed a petition for enforcement (PFE) to examine the enforcement of
an Order for remedial relief set forth in Om Parkash Kalra v. Department
of Transportation, EEOC Request No. 05940516 (May 31, 1996). This
petition for enforcement is accepted by the Commission pursuant to 29
C.F.R. �1614.503.<1>
ISSUE PRESENTED
Whether the agency has fully complied with the Commission's modified
Order for relief in EEOC Request No. 05940516.
BACKGROUND
In Om Parkash Kalra v. Department of Transportation, EEOC Request
No. 05940516 (May 31, 1996), the Commission modified the Order in EEOC
Appeal No 01924002 (February 25, 1994), and ordered the agency to, inter
alia, award petitioner backpay from May 14, 1986 to January 2, 1992 in
connection with his October 1983 nonselection for a GS-12 Civil Engineer
position. After several prior appeals and requests for reconsideration,
this decision was the final determination on the relief to be awarded
to petitioner. Concerning the aspect of the relief relevant to the PFE
herein, the Commission found that since petitioner had declined the
agency's offer of placement in the position, he was not entitled to
reinstatement or other benefits which would normally flow from such a
personnel action. As an example, the Commission noted that petitioner
was not entitled to have the agency generate form SF-50s to reflect
his employment with the agency. In finding that there was no reason in
the instant matter for the agency to create a form SF-50 paper trail,
the Commission noted that this would not be true in the situation where
some residual effect of the discrimination would be left uncorrected if
the agency were not required to prepare the form SF-50s. In a March 18,
1998 letter docketed by the Commission's Office of Federal Operations
as the petition for enforcement discussed herein, petitioner requested
that the Commission reconsider this ruling. He asserts that his present
federal employer has run reductions in force (RIFs) and that, because his
service computation date is a factor in determining his retirement and
RIF status, it should be adjusted as part of his make whole relief. The
agency has not responded to the PFE.
ANALYSIS AND FINDINGS
The Commission's finding of discrimination in EEOC Appeal No. 01924002
requires that the agency make petitioner "whole" by restoring him
to a position where he would have been were it not for the unlawful
discrimination. Franks v. Bowman Transportation Co., 424 U.S. 747, 764
(1976). See also Albemarle Paper Co. v. Moody, 422 U.S. 405, 418 (1975).
To do so, the agency was required to accomplish several actions listed
in EEOC Request No. 05940516 above.
Our review of petitioner's PFE indicates that he has requested
expansion of the relief afforded by the Commission in its order in
Request No. 05940516. We observe that the Commission's decision in that
request for reconsideration was a final one not appealable before the
Commission. We further advise petitioner that a clarification issued in
response to a PFE may not enlarge the scope of the relief afforded by
the Commission's underlying Order. See 29 C.F.R. �1614.503(c). Moreover,
we find that petitioner has not proven his entitlement to the additional
relief he seeks. Our decision in EEOC Request No. 05940516 correctly
noted that appellant's declination of placement in the position meant
that the agency was not required to afford him those benefits which
would have flowed from such placement, including the adjustment of his
federal service computation date. See 29 C.F.R. �1614.501(b)(1)(iii);
previously �1613.271(b)(1).
CONCLUSION
Based upon review of the record and submission of the parties, and for
the foregoing reasons, the Commission finds that the agency has complied
fully with the modified Order set forth in EEOC Request No. 05940516
and therefore petitioner's petition for enforcement is DENIED.
STATEMENT OF PETITIONER'S RIGHTS ON PETITION FOR ENFORCEMENT
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S1199)
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. 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 24, 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:
_______________________ _______________
Equal Employment Assistant 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 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.