Antonio Vereb, Petitioner,
v.
Janet Reno, Attorney General, Department of Justice (Immigration and Naturalization Service), Agency.
Petition No. 04980008
Appeal No. 01945011
February 26, 1999
 
DECISION
  
INTRODUCTION
 
The Commission docketed the above-captioned matter in response to a petition for enforcement filed by Antonio Vereb (hereinafter referred to as petitioner) with the Equal Employment Opportunity Commission (EEOC or Commission) requesting enforcement of the order for remedial relief set forth in Antonio Vereb v. Janet Reno, Attorney General, Department of Justice (Immigration and Naturalization Service), EEOC Appeal No. 01945011 (January 26, 1996). Pursuant to that Order, the Commission directed the Department of Justice (Immigration and Naturalization Service) (hereinafter referred to as the agency) to redress petitioner following a finding that agency officials had discriminated against petitioner on the basis of sex 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 in this Petition is whether the agency has complied with certain provisions of the Commission's Order in EEOC Appeal No. 01945011.
  
BACKGROUND
 
In EEOC Appeal No. 01945011 (January 26, 1996), the Commission found that the agency discriminated against petitioner on the basis of sex when it did not select him for the position of Immigration Inspector, GS-5/7, on April 10, 1992. The Commission ordered, inter alia, that the agency take the following remedial action:
(A) Within 30 calendar days of the date this decision becomes final, the agency shall promote [petitioner] to the position of Immigration Inspector, GS-7, retroactive to February 14, 1992, the effective date of the selectee's promotion to the contested position.
(B) The agency is directed to award [petitioner] back pay, less mitigation, and other benefits which [petitioner] would have received in the absence of discrimination. The agency shall determine the appropriate amount of back pay, and other benefits due [petitioner], pursuant to 29 C.F.R. §1614.501, no later than sixty (60) calendar days after the date this decision becomes final. The back pay award shall include an award of interest.
 
In addition, the agency was ordered to afford petitioner an opportunity to show entitlement to compensatory damages,1 provide training for managers, report on its compliance, post a notice, and pay reasonable attorney's fees.
 
By letter dated June 3, 1998, a copy of which was sent to the agency, petitioner's counsel informed the Commission that additional matters remained open. Specifically, petitioner's counsel stated that the agency has failed to:
(a) provide a breakdown for the back pay payment to petitioner;
(b) demonstrate contribution to his retirement as required by Appendix A, 29 C.F.R. Part 1613; and
(c) place petitioner in the position.
 
The agency did not comment in response to petitioner's letter of June 3, 1998. We address these matters seriatim.
  
ANALYSIS AND FINDINGS
 
Initially we note that the corrective action ordered in EEOC Appeal No. 01945011 was designed to make petitioner whole by restoring him to the position that he would have been in were it not for the agency's discriminatory action. Franks v. Bowman Transportation Co., 424 U.S. 747, 764 (1976); see also Albemarle Paper Co. v. Moody, 422 U.S. 405, 418 (1975). Based on correspondence contained in the record before us as well as documents submitted to the Compliance Officer, we conclude that the three matters identified by petitioner's counsel are the only unresolved issues concerning the agency's compliance with the Order at issue herein. We note that the agency has afforded petitioner an opportunity to claim compensatory damages, provided training for agency managers, reported on its compliance, posted a notice, and paid reasonable attorney's fees.
  
Explanation of Back Pay and Contributions to Retirement
 
According to the agency, petitioner was to be paid back pay and benefits, with interest, from February 14, 1992, through October 27, 1997, the date on which he was deemed ineligible for the position. See infra. If the agency has not already done so, we will direct the agency to provide petitioner a full explanation of its back pay calculations, all employment benefits, including retirement benefits, and interest. In order to fully assess whether he has been made whole, petitioner is entitled to be informed of the agency's method and amount of its financial calculations, including gross wages and amounts off set.
 
The agency is reminded that gross back pay includes all forms of compensation such as wages, bonuses, and all other elements of reimbursement and fringe benefits such as pension and health insurance. The Commission construes "benefits" broadly to include, inter alia, annual leave, sick leave, health insurance, overtime and premium pay, night differentials, and retirement contributions. Padilla v. USPS, EEOC Petition No. 04970010 (October 2, 1997); Finlay v. USPS, EEOC Petition No. 01942985 (April 29, 1997).
  
Placement in Position
 
Based on documents supplied by petitioner, the record reveals that compliance with Part (A) to place petitioner in the position of Immigration Inspector, GS-7/Step 10, began in July or August 1996, approximately six months following our Order. In October 1996, petitioner was scheduled for a medical examination. In January 1997, the agency determined that petitioner was ineligible for the position due to medical reasons (hearing). In March 1997, petitioner requested review of the medical findings by the U.S. Public Health Service (PHS), and, in July 1997, the PHS found that petitioner was ineligible for the position. On October 8, 1997, the agency withdrew its offer for the position based on medical issues. Thereafter, the agency apparently attempted to find an equivalent position in the local area for which petitioner was qualified, but, in October 1997, the agency notified petitioner that no such positions were available. Petitioner was paid back pay through October 27, 1997.2
 
The petitioner argues that the agency did not comply with the Order, in that he was not placed in the position. Further, we note that petitioner's attorney argues that petitioner's exclusion from the position was based on his physical disability and/or his age. Because the record is of limited utility with regard to whether the agency has complied with Part (A) of the Order, we will remand this matter to the agency for a supplemental investigation with regard to its implementation of Part (A). The record is incomplete with regard to the medical criteria utilized to determine petitioner's eligibility, its application to petitioner's ability to perform the position, and the agency's authority to require certain physical levels of performance. Also, the record does not contain the medical documents supporting petitioner's rejection for the position. Further, other than its summary statement, the agency has not shown the extent to which it investigated whether any substantially equivalent positions were available.
  
CONCLUSION
 
Based upon a review of the record and the petitioner's petition, the Commission has determined that additional information is necessary to determine the agency's compliance with its Order in Antonio Vereb v. Janet Reno, Attorney General, Department of Justice (Immigration and Naturalization Service), EEOC Appeal No. 01945011 (January 26, 1996). The agency is directed to comply with the Order, below.
  
ORDER
 
The agency is ordered to take the following actions:
 
(A) Within thirty (30) days of receipt of this decision, the agency is directed to provide petitioner a full explanation of its back pay calculations, all employment benefits, including retirement benefits, and interest. Further, the agency is directed to respond promptly to any reasonable questions from petitioner concerning its calculations.
 
(B) The agency is directed to conduct a supplemental investigation as described below. The agency shall complete this investigation within thirty (30) days of receipt of this decision and transmit it to the Compliance Officer as provided in the statement entitled "Implementation of the Commission's Decision." At the same time, the agency shall transmit a copy of its investigation to the petitioner.
(1) The agency shall determine why petitioner was not placed in the position of Immigration Inspector, GS-7/10, as directed by the Commission's previous Order. The investigation shall include a narrative explanation and all documentation showing the actions taken by the agency to comply with Part (A) of the Commission's previous Order and all documentation utilized to determine that petitioner was not qualified for the position. The documentation should include, but not be limited to, the job qualifications for the position, the agency's authority for imposing any physical or medical qualifications, all medical documents showing evaluation of petitioner's condition, and other relevant documents.
(2) The agency shall also determine whether, since 1990, it has granted a waiver of any physical or medical qualification for the position of Immigration Inspector and, if so, shall fully explain and support the conditions of any such waivers, to whom granted, and the reasons therefor.
 
(C) Within thirty (30) days from receipt of this decision, the agency shall conduct a supplemental investigation to determine what actions were taken to determine whether an equivalent position was available for petitioner in lieu of placement in the position of Immigration Inspector, including all documentation used to identify an equivalent position and to determine whether petitioner was qualified for a position. The agency should identify all equivalent positions for which petitioner is qualified within the local area (approximately 50 miles) and whether any of these positions were available since February 14, 1992.
  
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0595)
 
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 petitioner. If the agency does not comply with the Commission's order, the petitioner may petition the Commission for enforcement of the order. 29 C.F.R. §1614.503 (a). The petitioner 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. §§ 1614.408, 1614.409, and 1614.503 (g). Alternatively, the petitioner 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. §§ 1614.408 and 1614.409. 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 petitioner files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R. §1614.410.
  
STATEMENT OF PETITIONER'S RIGHTS ON PETITION FOR ENFORCEMENT
  
RIGHT TO FILE A CIVIL ACTION (R0993)
 
This is a decision requiring the agency to continue its administrative processing of your complaint. However, if you wish to file a civil action, you have the right to file such 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. 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 filed your appeal with the Commission. 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. Filing a civil action will terminate the administrative processing of your complaint.
  
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:
 
Frances M. Hart
Executive Officer
Executive Secretariat
Footnotes

1

Petitioner filed an appeal from the agency's final decision of December 3, 1997, with regard to compensatory damages. That appeal is being addressed in EEOC Appeal No. 01990136. See De'Andrea v. USPS, EEOC Petition No. 04930004 (March 17, 1994) (petition for enforcement cannot change the result of a prior decision or enlarge or diminish the relief ordered).

2

In addition, there is an indication that in the summer of 1997, petitioner sought to settle outstanding issues and that in response the agency presented a proposed settlement, but the record does not show whether further settlement efforts occurred.