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.