0420060018
11-16-2006
Daniel J. Arnow, Petitioner, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Daniel J. Arnow v. United States Postal Service
0420060018
11-16-06
.
Daniel J. Arnow,
Petitioner,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Petition No. 0420060018<1>
Appeal No. 07A10023
Agency No. 1A-106-1022-95
Hearing No. 160-99-8521X
DECISION ON A PETITION FOR ENFORCEMENT
On April 4, 2006, the Equal Employment Opportunity Commission docketed
a petition for enforcement to examine the enforcement of an order set
forth in Daniel J. Arnow v. John E. Potter, Postmaster General, United
States Postal Service, EEOC Appeal No. 07A10023 (November 15, 2002).
This petition for enforcement is accepted by the Commission pursuant to
29 C.F.R. � 1614.503.
Petitioner filed a formal EEO complaint in which he claimed that the
agency discriminated against him on the bases of religion (Jewish),
age (64), disability, and reprisal by terminating him, effective June
23, 1995. A hearing was held before an EEOC Administrative Judge
(AJ), who found in petitioner's favor. The agency filed an appeal with
the Commission. In EEOC Appeal No. 07A10023, the Commission upheld
the AJ's findings and conclusions, and ordered relief that included
petitioner's reinstatement retroactive to the period between June 23,
1995, and November 23, 1996, together with a determination of appropriate
back pay and benefits, with interest.<2>
In his petition for enforcement dated March 13, 2006, petitioner contends
that the back pay period should be recalculated using January 11,
1997 as the ending date. The agency points out, correctly, that item
(1) of the order for relief in EEOC Appeal No. 07A10023 identified the
back pay period as ending on November 23, 1996. That determination was
based on a finding that, pursuant to an arbitrator's order, petitioner
was awarded a manual distribution clerk position, without back pay,
effective November 23, 1996. At the hearing, however, petitioner
testified that he did not actually return to work until January of 1997.
Hearing Transcript, p.42. With his petition for enforcement, petitioner
presented a memorandum from the Senior Plant Manager dated January 7,
1997, notifying him that he was to return to duty effective Saturday,
January 14, 1997. Based upon this document, we find that the back
pay period ended on January 14, 1997, as opposed to November 23, 1996.
We therefore direct the agency to recompute petitioner's back pay and
to award the difference between what is still owed to petitioner and
what was previously paid to him.
Petitioner is likewise entitled to additional attorney's fees for
work done in connection with this petition for enforcement. See Allen
v. Department of the Interior, EEOC Request No. 05970352 (August 11,
1999).
Petitioner also claims that the agency should have utilized a 9% rate
in computing the interest award. However, it is well settled that the
rate used to compute the interest payment shall be the annual percentage
rate established by the Secretary of the Treasury as the overpayment
rate for the period of time for which interest is payable. See 5
U.S.C. � 550.806(d); Arrowood v. Department of Veterans Affairs, EEOC
Appeal No. 01A24290 (December 8, 2003); Bell v. Department of Labor,
EEOC Petition Nos. 04A10038 & 04A20008 (June 19, 2003); Bergmann
v. Department of Justice, EEOC Petition No. 04A20001 (April 21, 2003);
Haines v. United States Postal Service, EEOC Appeal No. 01974634 (March
16, 1999). Petitioner has not pointed to any persuasive authority in
support of the use of a 9% interest rate.
Accordingly, the Commission grants complainant's petition for enforcement
with respect to the back pay period, and orders the agency to take
remedial action in accordance with this decision and the Order below.
ORDER
Within thirty (30) calendar days of the date that it receives this
decision, the agency shall calculate petitioner's back pay, including the
value of any fringe benefits and interest, that accrued between June 23,
1995 and January 14, 1997, and shall award petitioner the difference
between that amount and the $104,951.85 that it previously paid to him.
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 petition.
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 (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 PETITIONER'S RIGHTS - ON PETITION FOR ENFORCEMENT
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (P0900)
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 (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
______11-16-06________________________
Date
1Due to a new data system, your case has been redesignated with the
above-referenced appeal number.
2Other elements in the order include: compensatory damages; training
of and consideration of disciplinary action against the responsible
officials; and posting of notice. Petitioner does not raise any of
these additional items as an issue in this petition.