04a10008
07-27-2001
Karla Deering, Petitioner, v. John E. Potter, Postmaster General, United States Postal Service (Southeast Area), Agency.
Karla Deering v. United States Postal Service
04A10008
7/27/01
.
Karla Deering,
Petitioner,
v.
John E. Potter,
Postmaster General,
United States Postal Service
(Southeast Area),
Agency.
Petition No. 04A10008
Appeal No. 01973389
Agency Nos. 1H-322-1025-94, 1H-320-1220-94
Hearing Nos. 150-95-8315X, 150-95-8340X
DECISION ON A PETITION FOR ENFORCEMENT
On October 20, 2000, the Equal Employment Opportunity Commission
(EEOC or Commission) docketed a petition for enforcement to examine
the enforcement of an order set forth in Karla Deering v. United
States Postal Service, EEOC Appeal No. 01973389 (January 15, 1999).
This petition for enforcement is accepted by the Commission pursuant to
29 C.F.R. � 1614.503.
ISSUE PRESENTED
Whether the agency complied with the Commission's Order for relief in
EEOC Appeal No. 01973389.
BACKGROUND
Petitioner filed two complaints in which she alleged that the agency
discriminated against her on the basis of reprisal (prior EEO activity)
when, on March 24, 1994, she became aware of a memorandum in her personnel
file stating that she should not be rehired; and on the bases of sex
(female) and reprisal (prior EEO activity), when on June 6, 1994, she
was not hired as a transitional employee (TE).
Following a hearing on the complaints, an EEOC Administrative Judge (AJ)
issued a recommended decision finding discrimination as to the first
issue, and no discrimination on the second issue. As to the second issue,
complainant alleged that in June 1994, the agency informed her that there
were no TE positions available. The AJ found, however, that testimony
revealed that no TE positions were available after March 1994, because
the positions were being phased out. Indeed, the AJ found no evidence of
TEs that were hired after March 1994. As such, the AJ found complainant
failed to establish a prima facie case because she failed to establish
she suffered an adverse action. The agency adopted the AJ's recommended
decision, which ordered certain remedial relief.
On appeal, we affirmed the AJ's findings as to issue 1. However,
complainant also presented on appeal documentation from the agency, that
was available before the hearing, which established that TE positions
were in fact available after March 1994. Finding no explanation for
the agency's failure to produce the evidence, coupled by the fact that
there existed a memorandum in complainant's personnel file strongly
discouraging her future employment with the agency, we found that agency
discriminated against complainant when it failed to hire her for a TE
position in June 1994.
In our prior decision, we ordered the agency to, among other things,
offer complainant a transitional employee position, or comparable
position and determine the amount of back pay (with interest) owed from
March 24, 1994.<1> We also ordered the agency to conduct a supplemental
investigation into complainant's entitlement to compensatory damages
and issue a final decision.<2> The matter was assigned to a Compliance
Officer and docketed as Compliance No. 06990518 on January 15, 1999.
On June 22, 1999, complainant contacted the Commission seeking
clarification and enforcement of the Order issued in the prior decision.
Therein, complainant alleged that the agency paid her back pay from
March 24, 1994 - until November 20, 1997, which was the date the last
TE was terminated, but failed to include interest owed. Furthermore,
complainant alleged that she should have been placed into a Part-Time
Flexible career position since the TE positions were eliminated in March
1994. Complainant states that the casual position does not have the
same promotional potential that the TE position had. Complainant argued
that had she been informed of the availability of tests enabling her to
reach career status, she may have passed, and may have been converted
to career status.
Complainant also alleged that the agency miscalculated the overtime back
pay by using the overtime history of comparison employees. Instead,
complainant argues, the agency should examine complainant's overtime
history and pay her accordingly. Finally, complainant argues that the
agency unreasonably delayed in paying her back pay.
We do note that the record reveals that on March 15, 1999, complainant was
offered a casual position, at the TE rate of pay. Although complainant
accepted the position on April 1, 1999, she did not report for duty as
she had moved to Virginia, and could therefore not work in Florida.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. 1614.501 prescribes the remedial action to be
taken by the agency upon a finding of discrimination. The purpose of the
remedial action is to make a person whole for discrimination suffered, by
placing him, "as near as may be, in the situation he would have occupied
if the wrong had not been committed." Albemarle Paper Co. v. Moody, 422
U.S. 405, 418- 419 (1975). See also Franks v. Bowman Transportation Co.,
424 U.S. 747, 764 (1976). The Commission's finding of discrimination
in EEOC Request No. 01973389 requires that the agency make petitioner
"whole" by restoring her to a position where she would have been were it
not for the unlawful discrimination. To do so, the agency was required to
accomplish several actions, including reinstating petitioner in the same,
or substantially equivalent position, paying back pay from the date of
the discriminatory event, and conducting a supplemental investigation
on petitioner's claim of compensatory damages.
The Commission's regulations require that, where an employee has
been discriminated against, the agency shall offer the employee the
position that she would have occupied absent the discrimination or, if
justified by the circumstances, a substantially equivalent position. 29
C.F.R. 1614.501(b)(1) A substantially equivalent position is one that is
similar in duties, responsibilities, and location to the position for
which petitioner applied. Patterson v. Department of Agriculture, EEOC
Request No. 05940079 (October 21, 1994). The burden to prove substantial
equivalency rests with the agency. Shaw v. Department of the Air Force,
EEOC Request No. 05930370 (July 15, 1994).
The remedy phase of an action seeks to turn back the clock to the moment
before discrimination occurred and, if possible, to move forward from that
point without discrimination. See Michael Miller, et. al. v. Department
of the Interior, EEOC Request No. 05980293 (September 2, 1999). In
the present case, the agency indicated in a letter dated March 15,
1999, that the agency no longer employs TEs, and that petitioner was
offered a casual position at the TE pay rate effective March 27, 1999.
Further documentation submitted by complainant reveals that the agency
issued petitioner a check for back pay to cover the period from March 24,
1994 through November 20, 1997, the date the last TE was terminated.
We disagree with complainant's arguments that she was entitled to
convert to a career position on November 20, 1997, when the last TE
was terminated. Complainant's arguments that she may have passed
an examination that would lead to a Part Time Flexible position are
entirely speculative. Based upon our review of the record, we find the
agency complied with paragraph 2 of the order.
As for the back pay award, the record contains a check dated July
28, 1999, made out to complainant for back pay owed in the amount
of $36,738.53. Petitioner argues that the agency miscalculated her
back pay by failing to examine petitioner's own prior work history
and overtime work history, instead of examining the work history of
comparison employees. In that regard, the record reveals that the agency
calculated petitioner's back pay award by averaging the hours worked by
three comparison employees. We note the Commission has consistently
used the pay of similarly situated employees in making overtime rate
determinations. See Sanchez v. United States Postal Service, EEOC Appeal
No. 01975022 (October 28, 1999); Hanns v. United States Postal Service,
EEOC Petition No. 04960030 (September 18, 1997); Allen v. Department of
the Air Force, EEOC Petition No. 04940006 (May 31, 1996). Complainant
failed to controvert the agency's calculations with documentation.
Furthermore, complainant argues that the agency failed to include an
award for interest owed on back pay. The record contains a check dated
July 28, 1999 made out to complainant for interest owed. In light of
this documentation, we find the agency correctly determined back pay
and satisfied its obligations under the back pay portion of paragraph 2.
Finally, complainant argues that the agency delayed issuing complainant's
back pay award. The record contains a letter dated March 16, 1999,
directing petitioner to complete a form entitled �Employee Statement to
Recover Back Pay.� Complainant's checks were issued to her in July 1999.
Since we cannot determine the date on which complainant returned the
back pay form to the agency, we are unable to agree with petitioner's
allegations that the agency unduly delayed issuing her back pay award
following our order on January 15, 1999.
CONCLUSION
After reviewing the instant petition for enforcement, the agency's
response, the previous decision, and the entire record, the Commission
finds the agency to have fully complied with its order in Karla Deering
v. United States Postal Service, EEOC Appeal No. 01973389 (January
15, 1999). Accordingly, the Commission denies complainant's petition
for enforcement.
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (R0900)
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 (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
7/27/01
Date
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
__________________
Date
______________________________
1While the prior case was pending before the Commission, complainant
informed the agency that it was not implementing the terms of the AJ's
decision which the agency adopted in its final decision. In response
to complainant's letter, on November 9, 1998, the agency issued a final
decision stating that all of the terms of the AJ's recommended decision
had been implemented, and the case was closed. The agency issued
complainant appeal rights to our office, which she pursued. See Karla
Deering v. United States Post Office, EEOC Appeal No. 01993281 (November
21, 2000). In light of the procedural irregularities that occurred with
the agency's second final decision, as well as complainant's subsequent
notification to the Commission that the agency had not implemented
the decision, we administratively closed EEOC Appeal No. 01993281,
and re-docketed complainant's allegations as the instant petition
for enforcement.
2Complainant appealed the agency's final decision, and we issued a
decision ordering the agency to award complainant compensatory damages.
See Karla Deering v. United States Postal Service, EEOC Appeal
No. 01994500 (October 31, 2000).