0120120628
03-20-2014
Complainant v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Eastern Area), Agency.
Complainant
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Eastern Area),
Agency.
Appeal No. 0120120628
Agency No. 1C-443-0054-00
Hearing No. 220-A1-5076X
DECISION
Complainant timely filed an appeal from the Agency's final decision concerning her equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C.
� 791 et seq. The Commission accepts the appeal pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission REVERSES the Agency's final decision,
ISSUES PRESENTED
The issues presented are: (1) whether the Agency properly found in its December 19, 2008, final decision that it had complied with the Commission's orders in EEOC Appeal No. 0120062348; and (2) whether Complainant is entitled to attorney's fees for the instant appeal as well as EEOC Appeal No. 0120062348.
BACKGROUND
At the time of events giving rise to this complaint, Complainant had received Causal Clerk and Casual Mail Handler appointments at the Agency's Main Post Office in Akron, Ohio. Complainant worked these appointments on a temporary intermittent basis from December 1992 to December 1999. In March 2000, Complainant applied for another casual appointment, but the Agency found Complainant "medically unsuitable." On July 27, 2000, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of disability and in reprisal for prior protected EEO activity when it failed to select her for the casual appointment due to her medical restrictions.
At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an EEOC Administrative Judge (AJ). Complainant timely requested a hearing, which the AJ held on February 7, 2003. The AJ issued a decision in favor of Complainant on February 25, 2003, finding that Complainant was subjected to discrimination as alleged and ordering remedial action.
Therein, the AJ ordered the Agency to, among other things: (1) award Complainant back pay and benefits for the maximum number of Casual Clerk appointments allowable under the applicable collective bargaining agreement between March 2000 and her reinstatement or a finding of medical unsuitability; (2) award Complainant back pay for Casual Mail Handler appointments given to Casual Clerks between March 2000 and her reinstatement or a finding of medical unsuitability; and (3) award Complainant back pay for 21-day holiday appointments between March 2000 and her reinstatement or a finding of medical unsuitability. In a subsequent order April 30, 2003, the AJ ordered the Agency to pay Complainant $9,302.50 in attorney's fees and $58.10 in costs. The Agency subsequently issued a final order dated May 13, 2003, fully implementing the AJ's finding of discrimination and relief awarded.
EEOC Appeal No. 01A33805 (June 8, 2004)
Complainant subsequently filed an appeal from the Agency's final order. In EEOC Appeal No. 01A33805 (June 8, 2004), we affirmed the Agency's final order, noting that the AJ's finding, that unlawful employment discrimination was proven by a preponderance of the evidence, was supported by the record. Further, we found no error in the remedies awarded. However, we found it not clear whether the Agency had complied with all portions of relief set forth by the AJ. As such, we ordered the Agency, if it had not already done so, to comply with the order set forth in the AJ's decision, including the payment of $9,302.50 in attorney's fees and $58.10 in costs.
On July 26, 2004, Complainant filed a request for reconsideration of the Commission's decision, which we denied in EEOC Request No. 05A41093 (August 18, 2004). We noted that in her request, Complainant expressed concern that we did not review her arguments on attorney's fees and costs. We noted, however, that the arguments on attorney's fees and costs had been reviewed, but found not to be persuasive.
Meanwhile, on April 12, 2004, Complainant submitted a supplemental application for attorney's fees to the Agency "for work spent during the past year to obtain compliance with the final agency decision in this matter." Specifically, Complainant requested $5,860.00 in fees for work done from April 4, 2003, through March 27, 2004. On June 7, 2004, the Agency issued a final decision on Complainant's supplemental application for attorney's fees. The Agency found that Complainant was entitled to attorney's fees in the amount of $1,190.00 for work done from October 15, 2003, through February 4, 2004. The Agency gave Complainant appeal rights to the Commission.
EEOC Appeal No. 01A44627 (Sep. 14, 2005)
Complainant subsequently again appealed to the Commission in Musherrah Ali v. U.S. Postal Service, EEOC Appeal No. 01A44627 (September 14, 2005), alleging that the Agency failed to fully comply with the AJ's February 25, 2003, remedial order. Therein, Complainant alleged that the Agency, in pertinent part, failed to: (1) remove her work restriction when she was reinstated on July 14, 2003; (2) award her back pay for all 90-day Casual Mail Handler appointments during the relevant period; and (3) properly calculate her back pay award, including failing to include pay period nine (PP-9) of 2002 through July 14, 2003, and including two-week gaps rather than one-week gaps between appointments.
We noted, in response to Complainant's appeal, that the Agency provided documentation, noting that it awarded Complainant back pay for casual appointments for March 23 through June 30, 2000; July 7 through September 30, 2000; October 13 through November 9, 2000; January 19 through March 31, 2001; April 13 through June 30, 2001; July 6 through August 16, 2001; December 21 through 31, 2001; January 4 through March 31, 2002; April 12 through 25, 2002; May 10 through June 30, 2002; July 5 through August 15, 2002; December 20 through 31, 2002; January 3 through 16, 2003; January 31 through March 31, 2003; and April 11 through June 30, 2003. We noted that the Agency awarded Complainant a total of net back pay in the amount of $18,447.17 for 15 time periods between March 2000 and July 2003.
We were unable to determine, however, whether the Agency fully complied with the AJ's order for remedies dated February 25, 2003. We noted that the Agency failed state why it applied a restriction on prolonged standing and walking although Complainant's Orthopedic Surgeon stated otherwise, and what effect such restriction had on Complainant's work assignments and hours. We also noted that the Agency failed to specify the number and exact dates of casual appointments, e.g., Clerk and Mail Handler, as well as holiday appointments, allowable. We further noted that the Agency failed to provide information regarding PP-9 of 2003 through July 14, 2003, or lapses of time between appointments.
We ordered the Agency to provide documentation indicating: (a) why the additional medical restriction of "limited prolonged walking/standing" was placed on Complainant's reinstatement and how such restriction affected her work assignment and hours; (b) the maximum number and dates of casual appointments allowable under the applicable collective bargaining agreement between March 2000 and July 2003; (c) which casual appointments applied to Complainant, (d) the criteria used to determine appointment applicability; (e) whether it rescinded compensation to correct an error in Complainant's back pay award and, if so, the details of the rescission; (f) whether it deducted unemployment compensation from Complainant's back pay award and, if so, the amount of such deduction; (g) the exact PPs for which Complainant received back pay compensation; and (h) lapses in casual appointments between March 2000 and July 2003 and the reason for such lapses.
Thereafter, on October 15, 2005, Complainant's attorney submitted an application for attorney's fees pursuant to the Commission's decision in EEOC Appeal No. 01A44627. Complainant noted that her application for fees "includes time and expense incurred in support of compliance with the remedial order, from April 2003, to the present, including work in support of EEOC Appeal No. 01A44627." Specifically, Complainant claimed entitlement to attorney's fees totaling $11,630.55 for work done from April 4, 2003, through October 14, 2005. Complainant noted the Agency had paid $1,190.00 towards this balance and stated that the remaining total due was $10,440.55.
EEOC Appeal No. 0120062348 (May 29, 2008)
On February 17, 2006, Complainant filed another appeal. Therein, Complainant noted that, in accordance with the Commission's decision in EEOC Appeal No. 01A44627, she submitted a petition for attorney's fees on October 15, 2005. Complainant again indicated that the Agency had imposed unjustified restrictions of "no standing/walking" on her. Complainant requested to be compensated for all hours of work that she would have been assigned absent the unjustified restriction. Complainant noted that, six weeks after the medical assessment pursuant to the AJ's decision, she was offered an assignment on Tour 1 and was told there was no assignments within her restrictions on Tour 3. Complainant notes that on September 2, 2003, she provided the Agency with a statement from her Orthopedic Surgeon, noting that she can stand and walk for eight hours out of a 12-hour day, but the Agency did not change her assignment for four months.
Complainant further challenged the Agency's determination of back pay due her. Specifically, Complainant noted there was no documentation showing why she was not paid for PPs 2002-9 and 2003-2. Complainant noted that the Labor Relations Specialist indicated that Causal employees may receive two 90-day appointments per craft each year, plus a Christmas appointment of 21 days. Complainant claimed that the Labor Relations Specialist did not explain why a 14-day gap in PPs 2002-9 and 2003-2 was needed. Moreover, Complainant claimed that the Agency owes her additional back pay for PP 2003-10 through her July 14, 2003 reinstatement.
With respect to attorney's fees, we noted that Complainant was not entitled to further reimbursement for work done prior to the AJ's February 25, 2003, decision. We noted that the issue of attorney's fees for work done during this period was decided by the AJ's decision and then unsuccessfully challenged by complainant in Appeal No. 01A33805 and Request No. 05A41093. We noted that because Complainant was not considered a prevailing party in either Appeal No. 01A33805 or Request No. 05A41093, she was not entitled to attorney's fees for work done thereon.
With regard to Complainant's claim for attorney's fees for work done in conjunction with her April 12, 2004, fee petition, we noted that the Agency issued a final decision on June 7, 2004, and paid Complainant $1,190.00 in attorney's fees. We noted that Complainant challenged the Agency's failure to pay the remaining balance in EEOC Request No. 05A41093. We noted, in a footnote in EEOC Request No. 05A41093, that we had reviewed Complainant's arguments on attorney's fees and costs, but found them not to be persuasive. Thus, we found a challenge to the issue of attorney's fees requested in the April 12, 2004, fee petition to be res judicata. We therefore found that the Agency had shown that it was in compliance with the attorney's fees relief as stated in the AJ's April 30, 2003, order.
We further addressed Complainant's claim that the Agency failed to pay the attorney's fees requested in her October 15, 2005, fee petition. We noted that, despite the fact that the Commission's decision in EEOC Appeal No. 01A44627 inadvertently included an order for attorney's fees, Complainant was not a prevailing party in that appeal, and therefore was not entitled to attorney's fees for work done in connection with that appeal.
We also noted that, pursuant to the AJ's February 25, 2003, order, the Agency was to reinstate Complainant to a Casual Clerk position, pending a medical assessment regarding her ability to perform the essential functions of the position. We noted that on September 2, 2003, the Agency received a note from Complainant's Orthopedic Surgeon dated August 28, 2003, stating that Complainant could stand and walk for eight hours out of a 12 -hour day. We noted that Complainant's file was later reviewed by the Associate Area Medical Director who, on January 2, 2004, indicated that Complainant might return to work as previously indicated by Complainant's Orthopedic Surgeon. We noted that it was not clear why the Agency waited approximately four months, until January 2, 2004, to reinstate Complainant after receiving the medical information showing that reinstatement was appropriate.
We further noted that Complainant claimed that the Labor Relations Specialist did not explain why a 14-day gap in pay PPs 2002-9 and 2003-2 was needed. We also noted that the Labor Relations Specialist stated that Complainant was paid for four casual appointments per year in 2002 and 2003 (two in the Clerk craft and two in the Mail Handler craft). We noted that the record did not contain a copy of the relevant portions of the National Agreement cited by the Labor Relations Specialist. We also noted that the Agency failed to specifically address Complainant's contention that, even if a break in service were required, it should have been a six-day as opposed to a 14-day break. We noted that the Agency failed to address whether Complainant was entitled to back pay for PP 2003-10 through July 14, 2003.
We ordered the Agency to supplement the record with documentation regarding its compliance with Complainant's back pay award and reinstatement as stated in the AJ's February 25, 2003, decision. We ordered the Agency to provide documentary evidence that clearly and concisely indicated: (1) the lapses of time between appointments for PPs 2002-9 and 2003-2, including a copy of the relevant provision of the relevant collective bargaining agreement specifying the required breaks in service between appointments for causal appointments; (2) whether Complainant was entitled to back pay for PP 2003-10 through July 14, 2003; and (3) why the Agency waited approximately four months until January 2, 2004, to reinstate Complainant after receiving the medical information on September 2, 2003, showing reinstatement was appropriate. We ordered the Agency to issue a new final decision addressing whether it has complied with the back pay and reinstatement relief specified in the AJ's February 25, 2003, decision.1
Agency's Final Decision dated December 19, 2008
In accordance with our order, the Agency issued a new final decision dated December 19, 2008, addressing the three questions above. With respect to question 1, the Agency noted that the agreement between the Agency and the American Postal Workers Union, states that "casuals are limited to two 90-day terms of causal employment in a calendar year. In addition casuals may be reemployed during the Christmas period for not more than 21 days." The Agency also noted that the agreement between the Agency and the National Postal Mail Handlers Union states that "casuals are limited to two 90-day terms of casual employment in a calendar year. In addition to such employment, casuals may be reemployed during one of the two identified accounting periods in each installation for not more than 20 on 21 days." The Agency noted that breaks in service were factored in during PPs 2000-14, 2001-1, 2002-2, 2002-9, and 2003-2.
Regarding question 2, the Agency noted that Complainant was not entitled to back pay for the dates of April 19, 2003 (PP 2003-10), to July 12, 2003 (PP 2003-16). The Agency noted that Complainant was paid for one 90-day period from January 25, 2003, to April 18, 2003. The Agency noted that Complainant was appointed on July 14, 2003, and was also reappointed on October 12, 2003, which constituted two 90-day appointments. With regard to question 3, the Agency noted that it did not wait four months after receiving the medical information to reinstate Complainant. The Agency noted that Complainant was not given back pay for the period between her medical examination in August 2003 through January 2004 because she had been given two appointments.
On January 21, 2009, Complainant submitted the present appeal claiming the Agency's December 19, 2008, final decision failed to properly address questions 1, 2, and 3 pertaining to our order in EEOC Appeal No. 0120062348, and in accordance with the AJ's February 25, 2003, order. Complainant also requests appropriate attorney's fees and costs.2
CONTENTIONS ON APPEAL
On appeal, Complainant contends that the Agency has continued to comply only partially with the AJ's February 25, 2003, and our orders, which has forced her to pursue repeated appeals. Complainant contends, with regard to question 1, that the Agency did not adequately explain why it imposed a 14-day break in service. Complainant contends that the Agency merely referred to the National Agreement, which states that casuals are limited to two 90-day terms in a year and one additional period of not more than 21 days. Complainant contends that this issue was previously addressed by the February 25, 2003, AJ's decision. Complainant contends the AJ noted:
During this time period, if Casual Clerks received appointments as Casual Mail Handlers after their [two 90-day] Casual Clerk appointments expired, then the Complainant shall be compensated for the same.
Complainant contends that casual appointees regularly rolled over from Clerk to Mail Handler during the relevant period, working year round except for an annual six-day break in service. Complainant contends that the Agency has shown no justification for any 14-day gap in the back pay award.
Regarding question 2, Complainant contends that the Agency's December 19, 2008, final decision erroneously found that she was not entitled to back pay from April 19, 2003 (PP 2003-10) through July 14, 2003 (PP 2003-16), because the National Agreement only allowed two 90-day appointments in a calendar year. Complainant contends that the Agency could have appointed her to four 90-day terms in a year, two 90-day appointments as a Clerk and two 90-day appointments as a Mail Handler, as well as a 21-day Christmas term. Complainant contends that the Agency has not presented any legitimate justification for refusing to pay her for consecutive 90-day appointments for the full period of 2003 prior to her actual reinstatement on July 14, 2003.
With regard to question 3, Complainant contends that when the Agency reinstated her on July 14, 2003, it improperly imposed a restriction on her walking and standing. Complainant contends that this restriction was used by management to limit the shifts and hours of work available to her. Complainant contends that our previous decision found that the Agency received medical information on September 2, 2003, showing the restriction was not justified. Complainant contends the Agency did not remove the restriction until January 2, 2004. Complainant contends the Agency failed to show any justification for its failure to remove the work restriction on September 2, 2003.
Complainant additionally contends that the Agency has refused to compensate her attorney adequately for substantial post-order advocacy work. Complainant contends that her attorney's efforts resulted in successfully persuading the Agency to correct its back pay order and appeals that resulted in remand orders. Complainant requests that we order that Agency to pay reasonable attorney's fees for this appeal, as well as other reasonable attorney's fees necessary to secure appropriate remedies from the Agency.
In summary, Complainant requests that we appoint a monitor or Administrative Judge to ensure that the Agency will assemble the proper relevant information and calculate the full amount of additional back pay. Complainant contends that the Agency must produce records showing the work that was available to other casual employees, which would have been available to her, including: (1) back pay for all gaps in excess of six days; (2) back pay up to the date of actual reinstatement on July 14, 2003; (3) additional shifts or hours that would have been available to her if the work restrictions were removed on September 2, 2003. Complainant also requests attorney's fees and costs.
ANALYSIS AND FINDINGS
Back Pay
Section 717(b) of Title VII, 42 U.S.C. 2000e-16(b) is the Commission's jurisdictional base for determining the agency's liability for back pay. This statutory provision authorizes the Commission to enforce the provisions of Section 717 through an assortment of remedial relief actions. Such relief, particularly an award of back pay, is designed to make the victim of discrimination 'whole' by placing him/her as near to the position he/she would have occupied, but for the discriminatory personnel action and to prevent the recurrences of similar actions in the future. Albemarle Paper Co. v. Moody, 422 U.S. 405, 418-419 (1975). We recognize that precise measurements cannot always be used to reduce the wrong inflicted, inasmuch as the computation of back pay awards inherently involves speculation. Nonetheless, a back pay award may not properly grant a windfall to a complainant. Again, the proper purpose of a back pay award is the placement of a complainant in the position he or she would have occupied, absent discrimination. See Day v. Mathews, 530 F.2d 1083 (D.C. Cir. 1976). While these principles were first enunciated in cases from the private sector, they apply equally to the federal government in its relations with its own employees. Arnold v. U.S. Postal Service, 649 F. Supp. 676 (D.D.C. 1986); Loeb v. Textron, Inc., 600 F.2d 1003 (1st Cir. 1979).
In the instant case, we note that our previous decision, EEOC Appeal No. 0120062348, ordered the Agency to provide evidence that clearly and concisely indicated: (1) the lapses of time between appointments for PPs 2002-9 and 2003-2, including a copy of the relevant provision of the relevant collective bargaining agreement specifying the required breaks in service between appointments for causal appointments; (2) whether Complainant was entitled to back pay for PP 2003-10 through July 14, 2003; and (3) why the Agency waited approximately four months until January 2, 2004, to reinstate Complainant after receiving the medical information on September 2, 2003, showing reinstatement was appropriate.
With regard to question 1, Complainant contends that she is entitled to back pay for 14-day gaps in PPs 2002-9 and 2003-2. In its December 19, 2008, final decision, the Agency noted that Complainant was not paid back pay for these periods. The Agency noted that the relevant provisions of the National Agreement state that casual employees may have two 90-day appointments and one 21-day Christmas appointment per year. The Agency noted that its calculations were proper because this part of the National Agreement requires breaks in service between appointments. In our previous decision, however, we noted that the Labor Relations Specialist stated that Complainant was paid for four casual appointments per year in 2002 and 2003 (two in the Clerk craft and two in the Mail Handler craft). We found it unclear as to why her back pay contained a 14-day gap in PPs 2002-9 and 2003-2 when the Specialist stated that only a six-day break in service was required by the National Agreement. We noted that Complainant contends that casual appointees regularly rolled over from Clerk to Mail Handler during the relevant period, working year round except for an annual six-day break in service.
We note that the Agency, in its December 19, 2008 decision, did not address the Labor Relations Specialist's testimony that Complainant was paid for four casual appointments in 2002 and 2003. The Agency also did not address our previous decision, finding it unclear as to why the back pay award contained a 14-day gap in PPs 2002-9 and 2003-2 when the Specialist stated that only a six-day break in service was required by the National Agreement. As such, we find the Agency has not presented a clear, understandable justification for the 14-day gap in Complainant's back pay for PPs 2002-9 and 2003-2. We note that uncertainties involved in a back pay determination should be resolved against the Agency, which has already been found to have committed the acts of discrimination. Hanns v. U.S. Postal Serv., EEOC Petition No. 04960030 (Sep. 18, 1997); Kloock v. U.S. Postal Serv., EEOC Petition No. 04A40012 (June 16, 2004). Therefore, the Agency shall provide Complainant with compensation for any gaps in back pay for PPs 2002-9 and 2003-2.
With respect to question 2, we ordered the Agency to determine whether Complainant was entitled to back pay from April 19, 2003 (PP 2003-10) through July 14, 2003 (PP 2003-16). In its December 19, 2008, final decision, the Agency noted that Complainant was not entitled to back pay for PP 2003-10 through PP 2003-16. Although the Agency noted that Complainant was not entitled to back pay for this period, we observed in EEOC Appeal No. 01A44627 that the Agency provided documentation showing that Complainant in fact was paid back pay for April 11, 2003, through June 30, 2003. We find it unclear why the Agency notes that Complainant was not entitled to back pay during this period. In any event, there is no dispute that Complainant was not paid back pay up to her reinstatement on July 14, 2003. Based on the fact that casuals worked four 90-day appointments, not two as lately asserted by the Agency, we shall order the Agency, to the extent it has not already done so, to provide Complainant with back pay for any gaps from April 19, 2003 (PP 2003-10) through July 14, 2003 (PP 2003-16).
Regarding question 3, we ordered the Agency to address why it waited four months, until January 2, 2004, to reinstate complainant after receiving medical information on September 2, 2003, showing that reinstatement was appropriate.3 In its final decision, the Agency noted that it did not wait four months after receiving the medical information to reinstate Complainant. Complainant contends, however, that when the Agency reinstated her on July 14, 2003, it improperly imposed a restriction on her walking and standing. Complainant contends that this restriction limited the shifts and hours of work available to her until January 2, 2004, when the restriction was removed. We noted, in our previous decision, that the Agency received medical information from Complainant's Orthopedic Surgeon on September 2, 2003, directing the Agency to remove the restriction on walking and standing, but it did not do so until January 2, 2004. We note that the Agency's December 19, 2008, final decision does not explain why it failed to change Complainant's work restrictions after receiving medical information directing it to do so. Therefore, we shall order the Agency to pay Complainant for all hours of work she would have been assigned from September 2, 2003, to January 2, 2004, absent the unnecessary medical restriction.
Attorney's Fees
Complainant requests that we order that Agency to pay reasonable attorney's fees for this appeal, as well as other reasonable attorney's fees necessary to secure appropriate remedies from the Agency. Upon review, we find that Complainant is a prevailing party with regard to the instant appeal as well as in Ali, EEOC Appeal No. 0120062348.4 We note that in EEOC Appeal No. 0120062348, we found that the Agency failed to show that it was in compliance with the back pay award and the reinstatement relief ordered by the AJ. We ordered the Agency to supplement the record with documentation regarding its compliance with Complainant's back pay award and reinstatement as stated in the AJ's February 25, 2003, decision. As such, we find that Complainant was a prevailing party. See Terrell v. Dep't of Health and Human Serv., EEOC Petition No. 04950018 (Nov. 7, 1996) (complainant who successfully obtained compliance with a Commission order through a petition for enforcement was entitled to be reimbursed for attorney's fees and costs incurred in processing the petition); see also Teal v. U.S. Postal Serv., EEOC Petition No. 04990026 (Aug. 7, 2000) (ordering the agency to pay attorney's fees for a petition for enforcement and conduct a supplemental investigation when it was unclear as to whether the agency, among other things, complied with the Commission's order to properly award back pay).
In finding that Complainant is a prevailing party with regard the instant appeal, as well as in Ali, EEOC Appeal No. 0120062348, we note that Complainant's attorney has done a substantial amount of work in attempts to cause the Agency to comply with the Commission's orders. We note that Complainant's attorney has filed three previous appeals with the Commission regarding the Agency's compliance with the AJ's February 25, 2003, decision finding discrimination. In each appeal, we found it unclear whether the Agency had complied with all portions of the remedial relief ordered by the AJ. We remind the Agency that it has the burden of proof with respect to remedies. See, e.g., Morgan v. Dep't of Defense, EEOC Petition No. 04A10006 (July 31. 2002) (citing Davis v. U.S. Postal Serv., EEOC Petition No. 04900010 (Nov. 29, 1990). We therefore find that Complainant is entitled to attorney's fees incurred in connection with the instant appeal as well as those incurred in EEOC Appeal No. 0120062348.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we REVERSE the Agency's final decision, and find that the Agency has not yet complied with the AJ's February 25, 2003, back pay award. We REMAND this matter for the Agency for action consistent with this decision and the Order of the Commission, below.
ORDER
The Agency is ORDERED to take the following remedial action:
1. The Agency shall provide Complainant with payment for any gaps in back pay for pay periods 2002-9 and 2003-2.
2. To the extent the Agency has not already done so, it shall provide Complainant with back pay for any gaps from April 19, 2003 (PP 2003-10) through July 14, 2003 (PP 2003-16).
3. The Agency shall provide Complainant with back pay for all hours of work she would have been assigned from September 2, 2003, to January 2, 2004, absent the unnecessary medical restriction on her walking and standing. The Agency shall provide Complainant with a detailed breakdown and accounting of additional shifts or hours that would have been available to her if the work restrictions were removed on September 2, 2003. This documentation shall include the work hours or shifts of other casuals who were not on medical restrictions at the time.
4. The Agency shall, with regard to the above items 1, 2, and 3, 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 sixty (60) calendar days after the date this decision becomes final. 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. 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."
5. The Agency shall calculate and pay attorney's fees and costs related to the instant appeal, as well as EEOC Appeal No. 0120062348, in accordance with the "Attorney's Fees" paragraph below.
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.
ATTORNEY'S FEES (H0610)
If Complainant has been represented by an attorney (as defined by 29 C.F.R.
� 1614.501(e)(l)(iii)), he/she 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. 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 (M0610)
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), at 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 77960, Washington, DC 20013. 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 (R0610)
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 within ninety (90) calendar days from the date that you receive this decision. 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 (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 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 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
March 20, 2014
Date
1 In EEOC Request No. 0520080627 (August 6, 2008), we denied Complainant's request for reconsideration of EEOC Appeal No. 0120062348.
2 We note that these issues would more properly be before us in a Petition for Enforcement; however, in the interests of judicial economy and due to the length of time this case has been in process, we exercise our discretion and will determine whether the Agency is in compliance herein.
3 We note that while our previous decision used the "reinstatement" term with respect to question 3, Complainant was actually reinstated on July 14, 2003. We note that the issue to be addressed here concerns the circumstance that, when the Agency reinstated Complainant on July 14, 2003, it imposed a medical restriction upon Complainant from September 2, 2004, through January 2, 2004, which reportedly limited the hours and shifts available to her.
4 Despite the fact that EEOC Appeal No. 0120062348 did not provide an order for attorney's fees, we find that Complainant is a prevailing party with regard to that appeal.
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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