0120112672
04-15-2014
Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Great Lakes Area), Agency.
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Great Lakes Area),
Agency.
Appeal No. 0120112672
Hearing No. 443-09-00015X
Agency No. 1J-605-0009-08
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts Complainant's appeal from the Agency's October 4, 2010, final order concerning her equal employment opportunity (EEO) complaint alleging 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., and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Mail Handler, on Tour 1, at the Fox Valley Center in Aurora, Illinois. On July 9, 2008, Complainant filed a formal complaint alleging that the Agency discriminated against her on the bases of race (African-American), color (light), and disability (physical) when: on April 17, 2008, she was instructed to clock out and go home, told she could not continue to work her new bid job on Tour 3 and to return to her previous position on Tour 1, and was not paid for the time she had worked her new bid.
Thereafter, Complainant requested a hearing before an EEOC Administrative Judge (AJ). Following the hearing, the AJ issued a decision on September 2, 2010, finding that Complainant had established that she was subjected to color and disability discrimination when she was not permitted to report to her new bid assignment on Tour 3. The AJ ordered, among other things, that the Agency:
1. Pay Complainant back-pay beginning from the day she was notified she could not work her Mail Handler Equipment Operator, Tour 3 bid position on April 17, 2008, until such time the Complainant begins working in the position of Mail Handler Equipment Operator, Tour 3/the equivalent job or Complainant rejects the offer of employment.
2. Interact with Complainant and determine whether or not she can perform the essential functions of the Mail Handler Equipment Operator position with or without accommodation.
3. Pay Complainant for eight hours of work on both April 13 and 14, 2008, to the extent she has not already been compensated for working on those two days.
4. Pay Complainant $5,000.00 in non-pecuniary compensatory damages within thirty days from the date this decision becomes final.
5. Remove any derogatory material from the Complainant's file concerning the issues raised in this complaint including appropriate changes to the PS Form-50, consistent with 29 C.F.R. � 1614.501(c)(3) & (4).
6. Provide EEO training on Title VII and the Rehabilitation Act for all managerial and supervisory employees at the location where the discriminatory actions occurred.
7. Post a notice.
8. Pay reasonable and supported attorney's fees may be awarded.
The Agency, having reviewed the record, including the transcript of the hearing held on March 10, 2010, decided to fully adopt the AJ's findings and ordered remedies.
CONTENTIONS ON APPEAL
In a letter dated April 10, 2011, Complainant contends that the Agency has failed to comply with the majority of the AJ's order. Complainant asserts that the Agency has not provided the non-compensatory damage award totaling five thousand dollars ($5,000.00), back pay beginning from April 17, 2008 to such time she begins working in the position of Mail Handler Equipment Operator, Tour 3; benefits (overtime pay, night differential, Sunday premium, TSP contribution/matched, and retirement contribution). Also, she asserts that mandatory EEO training for all managerial and supervisory employees involved in this case has not been completed. She has not been paid for the eight hours of work on both April 13 and 14, 2008, and the posting notice has not been issued. Complainant maintains that the only terms the Agency has complied with is that she was given the bid of Mail Handler Equipment Operator position on tour 3 and attorney's fees.
Complainant indicates that as of the date of her letter, she has not been allowed to enter on duty to work within her bid. She maintains that she spends the day reading the paper or books to keep busy until she is allowed to start.
Complainant maintains that she has contacted numerous parties, including her lawyer, the AJ, and the Director of the EEO office to alert them to the fact that the Agency has not complied. She contends that she finally was advised to contact the Commission regarding this matter. Further, Complainant raised concerns about her own attorney.
There was no formal response from the Agency regarding this matter. The record, however, does contain a memorandum from the manager of Human Resources (HR) dated October 4, 2010, which advises HR to promptly undertake compliance with Complainant's case.
ANALYSIS
Under 29 C.F.R. � 1614.504, if a Complainant believes that the Agency has failed to comply with the terms of a final action, they shall notify the EEO Director in writing of the alleged noncompliance within thirty days of when they knew or should have known of the alleged noncompliance. The regulation provides that the Agency shall resolve the matter and respond to the Complainant in writing. If the Agency does not respond to the Complainant or they are not satisfied with the agency's attempt to resolve the matter, they may appeal to the Commission for a determination as to whether the agency has complied with the final action.
In this case, the Agency fully adopted the AJ's order. Although the Agency had the option of rejecting the AJ's ordered remedies and filing an appeal with the Commission, it instead chose to fully adopt the remedies as reflected in the AJ's decision. Yet, Complainant argues that the Agency has failed to, in large part, comply with the ordered remedies. Complainant acknowledges that the Agency has provided her with a Tour 3 bid and paid her attorney's fees but it has not complied with the remainder of the order. As the Agency provided no documentation to refute Complainant's claim, we find that the Agency has not fully complied with its final order.
CONCLUSION
We find that the Agency has not complied with its final order. Consequently, the Commission REMANDS this matter to the Agency to take corrective action in accordance with this decision and the ORDER below.
ORDER
To the extent that it has not already done so, the Agency is order to do the following:
1. The Agency shall pay Complainant back-pay beginning from the day she was notified she could not work her Mail Handler Equipment Operator, Tour 3 bid position on April 17, 2008, until such time the Complainant begins working in the position of Mail Handler Equipment Operator, Tour 3/the equivalent job or Complainant rejects the offer of employment. The Agency shall calculate back-pay consistent with 29 C.F.R. 1614.501, no later than sixty (60) calendar days after the date this decision becomes final. The calculation shall include appropriate offsets to account for any interim earnings. 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.
2. Pay Complainant for eight hours of work on both April 13 and 14, 2008, to the extent she has not already been compensated for working on those two days.
3. Pay Complainant $5,000.00 in non-pecuniary compensatory damages within thirty days from the date this decision becomes final.
4. Remove any derogatory material from the complainant's file concerning the issues raised in this complaint including appropriate changes to the PS Form-50, consistent with 29 C.F.R. � 1614.501(c)(3) & (4).
5. The Agency is directed to provide EEO training on Title VII and the Rehabilitation Act for all managerial and supervisory employees at the location where the discriminatory actions occurred. The trainer is required to provide as a hand-out for all participants the publication entitled Policy Guidance on Executive Order 13164," Establishing Procedures to Facilitate the Provision of Reasonable Accommodation (October 20, 2000). In addition to the aforementioned publication, the training should include specific discussion about the Agency's reasonable accommodation policy, the interactive process and the provision of a reasonable accommodation. This training shall be completed within ninety calendar days of the date this decision becomes final. Train the managers and supervisors at the Fox Valley P&DC.
6. Consider taking appropriate disciplinary action against the responsible management officials. The Commission does not consider training to be disciplinary action. The Agency shall report its decision to the Compliance Officer. 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. If the responsible management officials have left the Agency's employ, the Agency shall furnish documentation of their departure dates.
7. Post a notice.
A copy of the Agency's documentation of the above order actions shall be provided to Complainant and the Compliance Officer as referenced below.
POSTING ORDER (G0610)
The Agency is ordered to post at its Fox Valley Center, Aurora, Illinois, facility 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/she is entitled to an award of reasonable attorney's fees incurred in the processing of the complaint. 29 C.F.R. �16l4.501(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
___4/15/14_______________
Date
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0120112672
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120112672