Posted: 4:32 am ET
On March 9, 2004, Complainant filed a formal complaint alleging that he was subjected to disability discrimination when he was denied an appointment to a Junior Officer position with the Foreign Service. After an investigation, the Agency issued a final decision finding no discrimination, and Complainant appealed. In our prior decision, we found the Agency discriminated against him when it failed to grant him a medical clearance based on its “worldwide availability” requirement. Bitsas v. U.S. Department of State, EEOC Appeal No. 0120051657 (Sept. 30, 2009). As relief, we ordered the Agency to retroactively offer Complainant a Junior Officer position, and to tender back pay and promotions from the date Complainant would have encumbered his position, absent discrimination, until the date he either enters on duty or is denied a medical or security clearance. We further ordered the Agency to undertake a supplemental investigation into complainant’s entitlement to compensatory damages, provide training, consider taking disciplinary action, and post a notice of the finding of discrimination. Id.
Pursuant to our order, on November 10, 2009, the Agency sent Complainant a Conditional Offer of Appointment to a Junior Officer position, contingent on the satisfactory completion of the security, medical, and suitability clearance processes. On January 1, 2010, Complainant received a Class 1 Medical Clearance. However, on July 16, 2010, the Agency’s Final Review Panel (FRP) terminated Complainant’s candidacy based on suitability grounds.
The FRP concluded that, pursuant to 5 U.S.C. § 3328, Complainant was ineligible for federal Executive branch employment because he failed to register with the Selective Service System (SSS). The Panel also concluded that there were several instances of misconduct in Complainant’s prior employment which rendered him ineligible for employment with the Foreign Service. Complainant appealed this decision, but on December 8, 2010, the Office of Personnel Management (OPM) determined that Complainant’s failure to register with the SSS was knowing and/or willful; thus, he was ineligible for appointment to an Executive Agency. Complainant sought a request for reconsideration with the OPM, which was denied.
In the meantime, Complainant sent the Agency information regarding his entitlement to compensatory damages. On April 11, 2012, the Agency issued a final decision denying compensatory damages, reasoning that the FRP’s suitability finding would have resulted in the withdrawal of his conditional offer of employment, even if he had been granted a medical clearance for worldwide availability. Accordingly, the Agency determined complainant was not entitled to any compensatory damages.
The Agency is ordered to take the following remedial action:
1. The Agency shall determine the appropriate amount of back pay, with interest, and other benefits due Complainant, pursuant to 29 C.F.R. § 1614.501, no later than one hundred and twenty (120) calendar days after the date this decision becomes final. The back pay period shall be from September 23, 2003 until the date the Agency discovered Complainant had not registered with the SSS, approximately July 16, 2010. 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.”
2. Within one hundred and twenty (120) calendar days, the Agency shall undertake a supplemental investigation to determine Complainant’s entitlement to compensatory damages under Title VII. The Agency shall give Complainant notice of his right to submit objective evidence (pursuant to the guidance given in Carle v. Department of the Navy, EEOC Appeal No. 01922369 (January 5, 1993)) and request objective evidence from Complainant in support of his request for compensatory damages within forty-five (45) calendar days of the date Complainant receives the Agency’s notice. No later than ninety (90) calendar days after the date that this decision becomes final, the Agency shall issue a final Agency decision addressing the issue of compensatory damages. The final decision shall contain appeal rights to the Commission. The Agency shall submit a copy of the final decision to the Compliance Officer at the address set forth below.
3. The Agency shall pay Complainant’s reasonable attorney fees in accordance with the paragraph below.
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 back pay and other benefits due Complainant, including evidence that the corrective action has been implemented.
See why. Read Harvey D. v. Department of State, EEOC Appeal No.0120122385 (Oct. 22, 2015) http://www.eeoc.gov/decisions/0120122385.txt
Under current law, all male U.S. citizens between 18–25 years are required to register with Selective Service within 30 days of their 18th birthday. Non-U.S.-citizen males between the ages of 18 and 25 (inclusive) living in the United States must also register. See the Who Must Register chart here.