Westlaw Delivery Summary Report for ANDREU-ROSARIO,V Your Search: 0120103167 Date/Time of Request: Tuesday, July 29, 2014 14:54 Central Client Identifier: VANDREU Database: FLB-EEOC Lines: 186 Documents: 1 Images: 0 The material accompanying this summary is subject to copyright. Usage is governed by contract with Thomson Reuters, West and their affiliates. EEOC DOC 0520110313, 2011 WL 1924195 (E.E.O.C.) U.S. Equal Employment Opportunity Commission (E.E.O.C.) Office of Federal Operations *1 MATTHEW SIPRIANO, COMPLAINANT, v. JANET NAPOLITANO, SECRETARY, DEPARTMENT OF HOMELAND SECURITY, (CITIZENSHIP AND IMMIGRATION SERVICES), AGENCY. Request No. 0520110313 Appeal No. 0120103167 Agency No. HS-06-CIS000913 May 12, 2011 DENIAL The agency timely requested reconsideration of the decision in Matthew Sipriano v. Department of Homeland Security, EEOC Appeal No. 0120103167 (January 20, 2011). 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. See29 C.F.R. § 1614.405(b). In his underlying complaint, Complainant alleged that the Agency, between June 2005 and March 2006, subjected him to a hostile work environment and denied him reasonable accommodation; and, on March 17, 2006, terminated his employment. Complainant alleged that the Agency discriminated against him based on national origin (Hispanic), sex (male), and disability (hearing impairment). In EEOC Appeal No. 0120103167, the Commission found that the Agency discriminated against Complainant based on disability when it terminated his employment. The Commission found no discrimination on the remaining bases and issues. As remedial relief, the Commission ordered expunging of termination documentation in his official personnel folder, consideration of disciplinary action against and training for the responsible management officials; and awarded Complainant back pay with interest and benefits and compensatory damages. In its request for reconsideration, the Agency stated that the responsible management official was unaware that Complainant's impairment rose to the level of a disability and the Agency provided a reason for Complainant's removal. After reconsidering the previous decision and the entire record, 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. We find that the appellate decision appropriately addressed the contentions the Agency now raises on reconsideration and the decision in EEOC Appeal No. 0120103167remains the Commission's 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 The Agency is ordered to take the following remedial actions: 1. Expunge from Complainant's OPF all documentation connected to his termination of March 17, 2006, and all documentation, if any, that refers to the termination, within 60 calendar days after this decision becomes final. *2 2. Determine the appropriate amount of back pay, with interest, and other benefits due Complainant, pursuant to 29 C.F.R. § 1614.501, from March 17, 2006 through May 17, 2006, 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". 3. Consider taking disciplinary action against Supervisor 1 and the Acting District Director referenced in this decision within 90 calendar days after this decision becomes final. 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. 4. Require Supervisor 1 and the Acting District Director referenced in this decision to take training on how to identify and avoid disability discrimination within 90 calendar days from the date this decision is final. In addition, the Agency shall conduct a supplemental investigation to learn if it was more likely than not that Complainant would have worked beyond May 17, 2006, for example, was it likely Complainant's term appointment would have been renewed one or more times. If Complainant can show this, he would be entitled to additional back pay, and an offer of reinstatement if it is more likely than not he would still be working. The Agency's supplemental investigation must also investigate if Complainant is entitled to compensatory damages, and the amount of such damages. After completing the supplemental investigation, Agency shall issue a FAD, appealable to this office, which determines the appropriate back pay period, if any, beyond May 17, 2006, whether Complainant is entitled to reinstatement, and calculates compensatory damages, if any. The Agency shall complete the supplemental investigation and issue a FAD within 120 calendar days after this 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 back pay and other benefits due Complainant, including evidence that all ordered corrective action has been implemented. POSTING ORDER (G0610) *3 The Agency is ordered to post at its Citizenship and Immigration Services, office of Associate Director Operations, Office of Field Operations, Dallas District Office in Dallas, Texas, 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 (H0610) If Complainant has been represented by an attorney (as defined by 29 C.F.R. § 1614.501(e)(1)(iii)), he 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. IMPLEMENTATION OF THE COMMISSION'S DECISION (K0610) 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 77960, Washington, DC 20013. 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. See29 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) (1994 & Supp. IV 1999).If the Complainant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See29 C.F.R. § 1614.409. COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (P0610) *4 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 (Z0610) 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 from the Court that the Court appoint an attorney to represent you and that the Court also 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 etseq.; 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 with the Court 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 EEOC DOC 0520110313, 2011 WL 1924195 (E.E.O.C.) END OF DOCUMENT Page (c) 2014 Thomson Reuters. No Claim to Orig. US Gov. Works. Page (c) 2014 Thomson Reuters. No Claim to Orig. US Gov. Works.