Daniel J. Arnow, Petitioner,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionNov 16, 2006
0420060018 (E.E.O.C. Nov. 16, 2006)

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.