01a44201
12-13-2004
Andreas J. Georgiadis, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Andreas J. Georgiadis v. United States Postal Service
01A44201
December 13, 2004
.
Andreas J. Georgiadis,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A44201
Agency Nos. 1-H-326-0026-02
1-H-326-0034-02
Hearing No. 150-2003-8249X
DECISION
On June 3, 2004, complainant filed this appeal concerning the agency's
compliance with its May 5, 2004 final order. The Commission accepts
the appeal pursuant to 29 C.F.R. � 1614.405.
Complainant, a part-time flexible mail processing clerk at the
agency's Panama City, Florida, Processing and Distribution facility,
filed the captioned complaints on July 10, 2004 and August 22, 2004,
respectively. Therein, complainant claimed that he was the victim of
unlawful employment discrimination in violation of Title VII of the Civil
Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq.
Specifically, complainant claimed that:
On June 1, 2002, the agency discriminated against him on the basis of
race (Caucasian) when his request to transfer to the Maintenance Craft
as a Laborer/Custodian was denied; and
On July 27, 2002, and August 10, 2002, the agency discriminated against
him on the basis of sex (male) when he was not selected for reassignment
to the Maintenance Craft as a [full-time] Laborer/Custodian.
After conducting a hearing, an EEOC Administrative Judge (AJ) issued a
decision, on March 30, 2004. Therein, the AJ found that complainant
prevailed on one of his claims: his claim of sex discrimination
regarding the agency's failure to select him for reassignment on July
27, 2002.
The AJ ordered the agency to undertake the following remedial measures:
In accordance with EEOC Regulation, 29 C.F.R. � 1614.501(c), the
agency shall retroactively place the complainant in the [full-time]
position of custodian, PS-3, effective the date that [the selectee]
was placed in a similar position [July 27, 2002].
Award the complainant any and all benefits he would have received,
retroactive to the date designated above [July 27, 2002]. The evidence
reflected that there would be little or no back pay involved because
complainant was seeking to be transferred to the maintenance craft at a
lower level of pay than what he currently earns. However, a computation
of the pay and other benefits should nevertheless be performed. Under
EEOC Regulation 29 C.F.R. � 1614.501, the complainant is entitled to
back pay computed in the same manner prescribed by 5 C.F.R. � 5550.805,
and other benefits he would have received but for the discrimination.
Reimburse the complainant for any and all costs and expenses incurred
for the processing of his EEO complaint, including costs of copies,
postage and other expenses. A detailed accounting of said expenses
shall be submitted by the complainant to the agency within thirty days
of receipt of this decision.
Complainant never requested compensatory damages nor produced any
evidence of said damages.
Conduct training for supervisory and managerial staff at the agency's
Panama City District, Florida. .....
The attached Notice, should be signed by the Manager or Postmaster
of the agency's Panama City District, Florida. Copies of the Notice,
after being signed, should be posted by the agency. The Notice must
be displayed for 60 consecutive days, in conspicuous places, including
all places where notices to employees and applicants for employment
are customarily located. The agency should take reasonable steps to
ensure that said Notices are not altered, defaced, or covered by any
other material.
The agency's final order implemented the AJ's decision. Therein, the
agency indicated that complainant would be contacted regarding provisions
1, 2, 4, and 5. Additionally, regarding provision 3, the agency advised
complainant that he would be awarded the sum of $478.39 for postage,
paper, ink printer cartridges and copies, finding that this constituted
full compliance with this provision. In reaching this determination,
the agency rejected complainant's request for reimbursement for the time
he spent preparing his case. The agency found that complainant did not
request official time �on the clock� for doing so.
On appeal, complainant argues that the agency failed to comply with
provision 1 of the AJ's order because the agency did not assign him the
same schedule as the selectee (tour II with Saturday and Sunday off).
Complainant additionally argues that the agency failed to comply with
provision 2 because the agency provided him with no "benefits," which he
arguably would have received but for the discrimination. Specifically,
complainant argues that the agency owes him out-of-schedule premium
pay because it "forced" him to work on tour I, with Monday and Tuesday
off, instead of the same schedule as the selectee. Also, complainant
avers that he is entitled to the holiday pay he would have received,
retroactive to July 27, 2002, and asks that this be afforded to him as
leave rather than money. Furthermore, as part of the awarded benefits,
complainant asserts that but for the discrimination, he would have taken
a variety of examinations for higher level positions, and would have been
afforded promotions based on these examination results. As a remedy,
complainant argues that he should now be given the opportunity to take
these examinations, and if he scores higher than the individuals who
received these promotions, then complainant should retroactively receive
these promotions as well.
Regarding provision 3, complainant argues that he spent many hours of
personal time preparing his case, and that he should be compensated for
this time. In this regard, complainant avers that he did not request
official time because he felt that it would be denied, and because the
designated area for this activity was noisy and otherwise not conducive
to this type of work. Complainant also argues that the agency failed
to comply with provision 6, asserting that the Notice was not posted at
the facility as order by the AJ.
Furthermore, complainant requests to amend his complaint to include the
basis of reprisal, arguing that the agency's failure to fully comply
with the AJ's order is an act of reprisal. Complainant further requests
that his complaint be amended to include a request for compensatory and
punitive damages, as well as future attorney's fees and court costs.
In response, the agency acknowledges that complainant should have been
reassigned to the same schedule as the selectee under provision 1.
The agency stated that it placed complainant in tour I believing that
this was his preference, as reflected in January 3, 2003 correspondence,
in which complainant requests a transfer to a recently vacated tour I
custodian position. The agency indicated that it corrected the problem
by reassigning complainant to the same schedule as the selectee, on
July 10, 2004.
Regarding provision 2, the agency argues that complainant is not
entitled to out-of-schedule pay because, as a part-time employee, he
was not eligible for this benefit. Further, the agency argues that
his assignment to tour I under the AJ's order cannot be considered a
"temporary"alternative schedule, which is required for eligibility for
out-of-schedule pay. The agency further asserted that complainant was
not entitled to retroactive holiday pay because of his part-time status,
and found complainant's argument regarding retroactive promotions to
be too speculative to include as a remedy.
Regarding provision 3, the agency reiterates that complainant is not
entitled to reimbursement for his personal time spent preparing his case.
The agency again notes that complainant did not request official time
to do so.
Regarding provision 6, the agency indicated that the Notice was signed
and posted on July 7, 2004, in full compliance with this provision.
In addressing complainant's request for complaint amendments on appeal,
in pertinent part, the agency argues that a complaint cannot properly be
amended at the appeal stage, such that this request should be rejected
by the Commission. Additionally, concerning complainant's request for
compensatory damages, the agency argues that the AJ's determination
that complainant failed to request compensatory damages is supported
by substantial evidence, and argues that it is improper to raise this
issue on appeal.
In answer to the agency's response, in pertinent part, complainant
avers that his assignment under provision 1 was to a full-time position,
retroactive to July 27, 2002, such that the agency's arguments denying
him benefits because of his part-time status are erroneous.
Upon review, we find that the agency has substantially complied with
provision 1, based on evidence that it retroactively assigned complainant
to the identified position, placing him in the selectee's schedule in
July 2004. The Commission determines that the agency's explanation
regarding its initial decision to assign complainant to tour I to
be credible, and that it justifies the slight delay. Accordingly,
we AFFIRM the agency's determination that it complied with provision 1.
As to provision 2, we concur with the agency that complainant's initial
assignment to tour I cannot be considered a "temporary" schedule,
as required for eligibility for out-of schedule pay, as that term is
defined in Section 434.6 of the agency's administrative regulations
("Out-of-Schedule Premium). We further concur with the agency that
complainant is not entitled to a retroactive promotion, based on the
results of his current examinations. Specifically, we agree with the
agency that it too speculative to assume that complainant would have
taken any of these examinations when previously offered, or that he
would have attained the same scores as in his current examinations.
Accordingly, we find that the agency properly determined that it need
not pay complainant out-of-schedule pay, or provide him with a retroactive
promotion, in order to comply with provision 2.
Notwithstanding the above, we concur with complainant that the agency
did not fully comply with provision 2. Specifically, we determine that
the agency did not afford him certain benefits, such as retroactive
holiday pay. Specifically, we find that complainant must be considered a
full-time employee back to July 27, 2002. As such, he is eligible to earn
holiday pay, back to this date. Therefore, we find that the agency erred
when it declined to award retroactive holiday pay as a remedy in this
case and this issue must be remanded to the agency for a determination as
to whether complainant would have earned holiday pay if he had properly
been selected for the position in question. Additionally, although
not raised by complainant, we find that any leave that complainant would
have accrued as a full-time employee, off-set by the leave he earned
as a part-time employee, during the pertinent period, should also be
awarded as part of his relief. Moreover, we find no evidence that the
agency has undertaken an analysis of what additional benefits complainant
might have been entitled to as a full-time employee, as opposed to a
part-time employee during the pertinent period. Accordingly, we REVERSE
the agency's finding that it complied with provision 2 of the AJ's Order.
Regarding provision 3, we concur with the agency that complainant is
not entitled to reimbursement for the personal time he spent preparing
his case. As noted by the agency, complainant is entitled only to
"official time," which he must request, and which must be "reasonable."
See 29 C.F.R. � 1614,605(b). Accordingly, based on the evidence
showing that the agency paid complainant for reimbursable expenses,
we find that the agency complied with provision 3 of the AJ's Order,
and we AFFIRM this determination.
Regarding provision 4, we construe complainant's appeal as a challenge to
the AJ's finding that he did not request compensatory damages. However,
after a careful review of the record, including the formal complaint and
the EEO Counselor report, we concur with the AJ that complainant made
no statement that could be interpreted as a request for compensatory
damages as a remedy in this case. Moreover, in construing complainant's
appeal statement as a request to amend the formal complaint to include
a claim for compensatory damages, we concur with the agency, as set
forth on appeal, that a formal complaint cannot be amended on appeal.
See 29 C.F.R. � 1615.106(d).
As to provision 5, the evidence reflects that the agency conducted the
training ordered by the AJ, and complainant does not appear to refute the
agency's compliance with this provision. As to provision 6, although
complainant claims that the agency did not post the Notice as of the
time of his appeal, in June 2004, record evidence indicates that it was
later posted in July 2004. As such, we find that the agency substantially
complied with provision 6, and we AFFIRM this determination.
Finally, as to complainant's request to amend his complaint to include the
basis of retaliation, and to request punitive damages, future attorney's
fees, and future court costs, we again determine that the formal
complaint cannot be amended on appeal. See 29 C.F.R. � 1615.106(d).
We further advise complainant that punitive damages are not available as
a remedy in the EEO process, and while attorney's fees and costs may be
a remedy for a prevailing complainant who is represented by an attorney,
"future" attorney's fees and costs are not. See 29 C.F.R. � 1615.501(e).
In conclusion, we AFFIRM the agency's final order, as further detailed
in its appeal statement, that it substantially complied with provisions
1, 3, 5, and 6 of the AJ's Order of remedies, and concur with the
determination, as set forth in provision 4, that complainant is not
entitled to compensatory damages because he failed to properly request
them. However, we REVERSE the agency's determination that it complied
with provision 2. In order to comply with provision 2, we instruct
the agency to undertake the actions set forth in the ORDER below.
ORDER (C0900)
The agency is ordered to take the following remedial action:
Within thirty (30) calendar days of the date of this decision, the
agency shall complete a supplemental investigation to determine what
benefits complainant would have received as a full-time custodian
retroactive to June 27, 2002, especially with regard to holiday pay
and accrued sick and annual leave.
Upon completion of the above described investigation, the agency
will provide complainant with a report, to include a notice which
specifically details the benefits he would have received as a full-time
employee, retroactive to June 27, 2002, as off-set by the benefits
he received as a part-time employee during the pertinent period.
The agency will provide any identified benefits to complainant as soon
as administratively possible.
Upon completion of the above actions, the agency will issue a final
determination on the issue of its compliance with the AJ's Order of
remedies in this case, with appeal rights to the Commission.
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 verifying
that the corrective action has been implemented.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)
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 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.
See 29 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. See 29 C.F.R. � 1614.409.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
The Commission may, in its discretion, reconsider the decision in this
case if the complainant or the agency submits a written request containing
arguments or evidence which tend to establish 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.
Requests to reconsider, with supporting statement or brief, must be filed
with the Office of Federal Operations (OFO) within thirty (30) calendar
days of receipt of this decision or within twenty (20) calendar days of
receipt of another party's timely request for reconsideration. See 29
C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for
29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999). All requests
and arguments must be submitted to the Director, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. In the absence of a legible postmark, the
request to reconsider shall be deemed timely filed if it is received by
mail within five days of the expiration of the applicable filing period.
See 29 C.F.R. � 1614.604. The request or opposition must also include
proof of service on the other party.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely, unless extenuating circumstances
prevented the timely filing of the request. Any supporting documentation
must be submitted with your request for reconsideration. The Commission
will consider requests for reconsideration filed after the deadline only
in very limited circumstances. See 29 C.F.R. � 1614.604(c).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (T0900)
This decision affirms the agency's final decision/action in part, but it
also requires the agency to continue its administrative processing of a
portion of your complaint. 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 on both that portion
of your complaint which the Commission has affirmed and that portion
of the complaint which has been remanded for continued administrative
processing. 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 your appeal with the Commission, until
such time as the agency issues its final decision on your complaint.
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
December 13, 2004
__________________
Date