Elliott Haines, III, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionDec 8, 2003
05A40105 (E.E.O.C. Dec. 8, 2003)

05A40105

12-08-2003

Elliott Haines, III, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.


Elliott Haines, III v. United States Postal Service

05A40105

12-08-03

.

Elliott Haines, III,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service,

Agency.

Request No. 05A40105

Appeal No. 01A14096

Agency No. 4K-210-0132-98

Hearing No. 120-A0-3642x

DENIAL OF REQUEST FOR RECONSIDERATION

On October 10, 2003, Elliott Haines, III (complainant) timely<1>

initiated a request to the Equal Employment Opportunity Commission (EEOC

or Commission) to reconsider the decision in Elliott Haines, III v. United

States Postal Service, EEOC Appeal No. 01A14096 (September 5, 2003).

EEOC Regulations provide that the Commission may, in its discretion,

reconsider any previous Commission decision where the requesting party

demonstrates 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. See 29 C.F.R. � 1614.405(b).

The previous decision found that the agency discriminated against

complainant based on his disability (perceived) and ordered particular

relief consisting of placement in the position at issue as of June 8,

1998; back pay and benefits; training for managers; and a recommendation

to the agency to consider disciplinary action against the acting official.

In addition, the Commission's decision referred the issues of compensatory

damages and attorneys fees to the Baltimore District Office Hearings Unit

for determination. Complainant has filed a request that the Commission

reconsider its decision, in which he sought clarification and changes

to the stated relief; (2) contended that the decision did not address

his claim of reprisal; and (3) asked to amend his complaint to seek

class relief.

In order to merit reconsideration of a prior decision, the requesting

party must submit written argument that tends to establish that at least

one of the criteria of 29 C.F.R. � 1614.405(b) is met. The Commission's

scope of review on a request for reconsideration is narrow and is not

merely a form of a second appeal. Lopez v. Department of the Air Force,

EEOC Request No. 05890749 (September 28, 1989); Regensberg v. USPS,

EEOC Request No. 05900850 (September 7, 1990). The Commission finds that

the complainant's request does not meet the regulatory criteria of 29

C.F.R. � 1614.405(b), in that, the request does not identify a clearly

erroneous interpretation of material fact or law, nor does it show that

the underlying decision will have a substantial impact on the policies,

practices or operation of the agency.

When discrimination is found, a complainant is entitled to full relief,

that is, relief that would make the complainant whole. Albemarle

Paper Co. v. Moody, 422 U.S. 405 (1975); Merriell v. Department

of Transportation, EEOC Request No. 05890596 (August 10, 1989).

This includes elimination of the unlawful employment practice(s)

complained of as well as restoration of the victim to the position

s/he would have occupied were it not for the unlawful discrimination,

and relief that is specifically tailored to cure the source of the

discrimination and minimize the chance of its recurrence. Id.; see

also 29 C.F.R. �1614.501; EEOC Management Directive MD-110 (November 9,

1999), Chapter 9, Part VIII (MD-110). The Commission finds that the

relief ordered in the previous decision, repeated herein, fulfills the

responsibility to provide complainant full relief.

Regarding the relief ordered in the previous decision, complainant

argued that back pay should begin two months earlier than June 8, 1998,

or about April 15, 1998, since, but for discrimination, he would have

been employed by that date. In the previous decision, the Commission

found that the discriminatory act was the agency's letter of June 8, 1998,

to complainant that found him medically unsuitable for employment. Since

relief is awarded in response to the action found to be discriminatory,

we find that the June 1998 date is proper and correct. Complainant

also requested interest on his back pay; in fact, the Commission's

regulations require agencies to include interest in back pay awards.

See 29 C.F.R. � 1614.501(c)(1); EEOC Management Directive-110, Chapter

9, Part VIII(C). Finally, complainant argued that the agency's action

in this matter reflects "systemic, institutionalized" violations and

disciplinary action should be directed to acts by other managers and not

limited to one manager's act. In the first instance, the Commission's

recommendation for disciplinary action is directed to the individual

responsible for the discrimination found in this matter, and no evidence

in the record identified or alleged other acts by any other manager.

Complainant also contended that the previous decision did not address his

claim of reprisal; however, complainant did not raise a claim of reprisal

discrimination in his formal complaint, during the investigation, or

before the AJ. In addition, complainant asked to amend his complaint

to seek class relief, but the Commission's regulations do not allow

complaints to be amended after the conclusion of the investigation or

hearing, if one elected. See 29 C.F.R. � 1614.106(d)); for discussion

of class complaints, see 29 C.F.R. � 1614.204.

After a review of complainant's request for reconsideration, the previous

decision, and the entire record, the Commission finds that the request

fails to meet the criteria of 29 C.F.R. � 1614.405(b), and it is the

decision of the Commission to deny the request. The decision in EEOC

Appeal No. 01A14096 remains the Commission's final decision. There is no

further right of administrative appeal on the decision of the Commission

on this request for reconsideration. The agency is directed to comply

with the ORDER, as modified below.

ORDER

1. The agency shall, within thirty (30) calendar days of the date this

decision becomes final, offer complainant a position as a Flat Sorter

Machine Operator, or a substantially equivalent position, effective

June 8, 1998. Complainant shall be given a minimum of fifteen (15)

days from receipt of the offer of placement within which to accept or

decline the offer. Failure to accept the offer within the time period

set by the agency will be considered a rejection of the offer, unless

complainant can show that circumstances beyond his control prevented a

response within the time limit.

2. The agency shall determine the appropriate amount of back pay,

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. 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. The 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."

3. The issues of compensatory damages and attorneys fees and costs are

REMANDED to the Hearings Unit of the EEOC's Baltimore District Office.

The agency is directed to submit two copies of the complaint file to the

Hearings Unit within fifteen (15) calendar days of the date this decision

becomes final. The agency shall provide written notification to the

Compliance Officer at the address set forth below that the complaint

files have been transmitted to the Hearings Unit. Thereafter, the

Administrative Judge must be assigned to further process the issues of

compensatory damages and attorney's fees and costs.

4. The agency is directed to provide a minimum of (8) eight hours

of remedial EEO training to the Manager with special emphasis on the

Rehabilitation Act. The Commission does not consider training to be a

disciplinary action.

5. The agency shall consider taking disciplinary action against the

Manager for his decision to not employ complainant. The agency shall

report its decision. 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.

6. 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 of the

agency's calculation of back pay and other benefits due complainant,

including evidence that the corrective action has been implemented.

Copies of all submission should be sent to the complainant.

POSTING ORDER (G0900)

The agency is ordered to post at its Baltimore Performance Center located

in Baltimore, Maryland, 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 (H0900)

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. � 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 COMPLAINANT'S RIGHTS ON A REQUEST TO RECONSIDER

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

___12-08-03_______________

Date

NOTICE TO EMPLOYEES

POSTED BY ORDER OF THE

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

An Agency of the United States Government

This Notice is posted pursuant to an Order by the United States Equal

Employment Opportunity Commission dated , which

found that a violation of Section 501 of the Rehabilitation Act of 1973

(Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq., has occurred

at this facility.

Federal law requires that there be no discrimination against any employee

or applicant for employment because of the person's RACE, COLOR, RELIGION,

SEX, NATIONAL ORIGIN, AGE, or DISABILITY with respect to hiring, firing,

promotion, compensation, or other terms, conditions or privileges of

employment. The Baltimore Performance Center confirms its commitment to

comply with these statutory provisions and will not take action against

individuals because they have exercised their rights under law.

The Baltimore Performance Center was found to have discriminated against

an employee because of a perceived disability when it denied him a

position as a Flat Sorter Machine Operator. The Baltimore Performance

Center has been ordered to, among other things, offer the employee the

position that he was denied with back pay, possible compensatory damages,

all benefits that he would have received had he not been discriminated

against and training for the responsible management official. The

Baltimore Performance Center will ensure that officials responsible for

personnel decisions and terms and conditions of employment will abide

by the requirements of all Federal equal employment opportunity laws.

The Baltimore Performance Center will not in any manner restrain,

interfere, coerce, or retaliate against any individual who exercises his

or her right to oppose practices made unlawful by, or who participates

in proceedings pursuant to, Federal equal employment opportunity law.

_______________________________

Date Posted: ____________________

Posting Expires: ________________

29 C.F.R. Part 1614

1Complainant has submitted documentation showing that he sent thirteen

(13) pages to the Commission, via facsimile, on October 10, 2003.

No further extension of time is available to complainant, and the

Commission will consider his 13-page submission as complainant's request.