04980018
10-14-1999
v. ) Request No. 05900584
Nathaniel Kennedy v. Department of the Navy
04980018
October 14, 1999
Nathaniel Kennedy, )
Petitioner, )
) Petition No. 04980018
v. ) Request No. 05900584
) Appeal No. 01900470
John H. Dalton, )
Secretary, )
Department of the Navy, )
Agency. )
)
DECISION ON PETITION FOR ENFORCEMENT
On February 20, 1998, the Equal Employment Opportunity Commission
(Commission) received a petition from Nathaniel Kennedy (hereinafter
referred to as petitioner) for enforcement of the relief ordered by the
agency, as affirmed in Nathaniel Kennedy v. H. Lawrence Garrett, III,
Secretary, Department of the Navy, EEOC Appeal No. 01900470 (April 2,
1990), request for reconsideration denied, EEOC Request No. 05900584
(September 17, 1990). Pursuant to that decision, the Commission affirmed
a final decision of the Department of the Navy (hereinafter referred to
as the agency) regarding the relief to which petitioner was entitled
following a finding that agency officials had discriminated against
him on the basis of his race (black) in violation of Title VII of the
Civil Rights Act of 1964, as amended, 42 U.S.C. �2000e et seq. This
petition for enforcement is accepted by the Commission pursuant to 29
C.F.R. �1614.503.
ISSUE PRESENTED
The issue presented herein is whether the agency has provided petitioner
with the relief specified in its final decision.
BACKGROUND
The record in the case herein reveals that the agency issued a final
decision in September 1988, adopting an Administrative Judge's finding
that petitioner had been subjected to race discrimination when he was
nonselected for three positions. Subsequently, the agency issued
a memorandum stating that petitioner would, among other things,
be retroactively promoted to the position of Police Sergeant, GS-5,
effective March 4, 1984; receive backpay and appropriate adjustments; and
be promoted to the GS-7 level effective December 4, 1987. Upon receiving
a letter from petitioner, the agency issued a final decision on October
12, 1989, finding that he was not entitled to a noncompetitive promotion
to the GS-8 level. The agency noted that petitioner had been placed
into the appropriate position, that of Supervisory Police Officer,
and was entitled to backpay and benefits as of April 29, 1984.
On appeal, the Commission affirmed the final agency decision. Kennedy
v. Department of the Navy, EEOC Appeal No. 01900470 (April 2, 1990).
The Commission specifically found that the relief offered by the agency
constituted full relief. The Commission noted that the individual cited
by petitioner received a GS-8 level promotion as a result of a prior
competitive selection. The Commission subsequently denied petitioner's
request for reconsideration. Kennedy v. Department of the Navy, EEOC
Request No. 05900584 (September 17, 1990).<1>
Petitioner subsequently filed a petition for enforcement, stating
that the agency had not fully implemented the relief provided for in
its initial decision. Petitioner acknowledged that he is serving as a
Supervisory Police Officer. Petitioner, however, asserted that he did
not receive backpay.
The agency has recently submitted documentation to the Commission, showing
that appellant received backpay in the amount of $99,234.53 in July 1999.
The payment included retroactive adjustments and interest.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. �1614.503(a) provides that a complainant may
petition the Commission for enforcement of a decision issued under
the Commission's appellate jurisdiction. In the case herein, the
Commission affirmed the final agency decision specifying the relief to
which petitioner was entitled. Further, as stated, the agency submitted
documentation showing that appellant has received backpay with interest.
Accordingly, we conclude that the agency has met its obligations under
the final decision, consistent with our previous decisions, and will,
therefore, deny this petition for enforcement.
CONCLUSION
Based upon a review of the record herein, and the submissions of the
parties, and for the foregoing reasons, the Commission finds that the
agency has complied with the decision in EEOC Appeal No. 01900470 (April
2, 1990), request for reconsideration denied, EEOC Request No. 05900584
(September 17, 1990). Therefore, the Commission denies petitioner's
petition for enforcement.
STATEMENT OF PETITIONER'S RIGHTS ON PETITION FOR ENFORCEMENT
RIGHT TO FILE A CIVIL ACTION (P0993)
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.
It is the position of the Commission that 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.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive this decision. To ensure that your civil action
is considered timely, you are advised to file it WITHIN THIRTY (30)
CALENDAR DAYS from the date that you receive this decision or to consult
an attorney concerning the applicable time period in the jurisdiction
in which your action would be filed. 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 (Z1092)
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:
Oct. 14, 1999
Date Frances M. Hart
Executive Officer
Executive Secretariat
1It is noted that this decision ordered the agency to allow petitioner
to file an additional complaint regarding the agency's failure to provide
him with the specified relief. Petitioner did so, and his request for an
administrative hearing was ultimately dismissed without prejudice. The
administrative judge advised petitioner to file the instant petition for
enforcement.