04a00025
02-06-2001
Kim Newbold, Petitioner, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Kim Newbold v. United States Postal Service
04A00025
February 6, 2001
.
Kim Newbold,
Petitioner,
v.
William J. Henderson,
Postmaster General,
United States Postal Service,
Agency.
Petition No. 04A00025
Request No. 05970887
Appeal No. 01962371
Agency No. 4E-840-1038-94
DECISION ON A PETITION FOR ENFORCEMENT
On July 24, 2000, the Equal Employment Opportunity Commission (EEOC or
Commission) docketed a petition for enforcement to examine the enforcement
of an order set forth in Kim Newbold v. United States Postal Service,
EEOC Appeal No. 01962371 (June 11, 1997), request denied, EEOC Request
No. 05970887 (March 29, 2000).<1> This petition for enforcement is
accepted by the Commission pursuant to 29 C.F.R. � 1614.503. Petitioner
alleged that the agency failed to fully comply with the Commission's
order.
Petitioner, petitioner's attorney, and the agency entered into a
settlement agreement on April 21, 1995, to resolve complainant's EEO
compliant (Agency No. 4E-840-1038-94). By letters dated June 6, 1995,
and December 22, 1995, petitioner notified the agency that it had
failed to comply with the 5th provision of the settlement agreement
which provided that the agency �inform [petitioner] of the reasons
for the changes in volume figures as it pertained to his evaluation
at the Cottonwood Station.� Petitioner requested that the terms of
the settlement agreement be specifically implemented and that he be
reimbursed for the time, expense, attorney's fees, and cost he incurred
in seeking compliance. The agency issued a final decision which found
that the agency had complied with the settlement agreement's provisions
except for provision 5. The agency's decision noted that the reasons
for the changes may never be known and that, therefore, the agency had
complied with the outstanding provision of the settlement agreement.
Petitioner appealed the agency's decision to the Commission. In Kim
Newbold v. United States Postal Service, EEOC Appeal No. 01962371 (June
11, 1997), the Commission found that the agency's response to provision
5 failed to comply with the settlement agreement. The Commission also
found that contrary to the agency's belief that the reason may never
be known, specific performance was not impossible. Accordingly, the
Commission ordered the following:
1. Within sixty (60) calendar days of the date this decision becomes
final, the agency shall inform the complainant in writing of the reasons
for the changes in volume figures as it pertained to his evaluation at
the Cottonwood Station.
2. When seeking to determine the reasons for the changes in the volume
figures, the agency shall consider the complainant's appeal submissions,
including his description of the effect of auxiliary office time on
relevant statistics. See the complainant's submission entitled "Workload
Reports."
3. 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 verifying
that the corrective action has been implemented.
Petitioner requested reconsideration of the matter for the Commission
to reconsider the remedy which the previous decision ordered. In Kim
Newbold v. United States Postal Service, EEOC Request No. 05970887 (March
29, 2000), the Commission affirmed the previous decision's order. In
particular, the Commission noted that the previous decision properly
determined that specific enforcement, rather than reinstatement of the
complaint, is the appropriate remedy in the case at hand. The matter was
assigned to a compliance Officer and docketed as Compliance No. 06A00867
on March 29, 2000.
On May 30, 2000, petitioner submitted the petition for enforcement at
issue. Petitioner contends that the agency failed to provide petitioner
�of the reasons for the changes in volume figures as it pertained to
his evaluation at the Cottonwood Station� as well as the other two
provisions of the Commission's order. Petitioner did not raise the
issue of attorneys fees and costs which were ordered in the previous
decision. Accordingly, this decision will solely focus on the three
provisions of the previous decision's order as referenced above.
EEOC Regulation 29 C.F.R. �1614.503(a) provides that a complainant may
petition the Commission for enforcement of a decision issued under the
Commission's appellate jurisdiction. At issue in this case is whether
the agency has fully complied with the Commission's prior order.
Upon review of the record, the Commission finds that the agency provided
the Compliance Officer with its report of compliance dated April 29, 2000.
In its report, the agency indicates that it investigated the issue raised
in Provision 5 of the settlement agreement. The conclusion of the first
investigation was the following:
1. It could not be determined who, specifically, made the changes to
the volume figures;
2. The changes added volume, which would make petitioner look better
in performance;
3. The changes themselves were done incorrectly and entered in the
wrong column. They should have been added to and included in the
�Available Volume� column;
4. The changes, if done correctly, would have moved petitioner from
completely unsatisfactory performance to marginal performance; and
5. The changes were most likely due to �handoffs� from other routes
that were missed in the original report but added the next day.
The agency also indicated it conducted a second investigation which
had the same conclusion, namely that the changes to petitioner's volume
figures were most likely due to �handoffs.� Upon review, the Commission
finds that although the agency addressed the changes in its own volume
figures, the agency failed to consider complainant's submission entitled
�Workload Reports.�<2> Accordingly, the Commission finds that petitioner
should supply the submission to the agency so that the agency may comply
with the Commission's order.
CONCLUSION
Based upon a thorough review of the record, consideration of the
arguments of the parties, and for the foregoing reasons, the Commission
grants the Petition for Enforcement of the order in Kim Newbold v. United
States Postal Service, EEOC Appeal No. 01962371 (June 11, 1997), request
denied, EEOC Request No. 05970887 (March 29, 2000). We find that the
agency has failed to comply fully with the order in the cited appeal.
The parties are therefore directed to take the steps contained in the
following ORDER.
ORDER
The parties are ORDERED to take the following action:
1. Within fifteen (15) calendar days of the date this decision becomes
final, petitioner shall provide the agency with a copy of his submission
entitled �Workload Reports.�
2. Within sixty (60) calendar days of the date the agency receives
complainant's submission, the agency will determine the reasons for the
changes in the volume figures considering petitioner's submissions,
including his description of the effect of auxiliary office time on
relevant statistics. 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 verifying that the corrective action has been implemented.
3. If complainant fails to provide the agency with a copy of the
�Workload Reports,� the agency shall resubmit its analysis of the
changes in the volume figures in a report of compliance, as provided in
the statement entitled �Implementation of the Commission's Decision,�
noting complainant's failure to provide his submission.
4. The agency shall also reimburse petitioner for attorney's fees
and costs incurred in connection with the filing of this petition for
enforcement. The attorney shall submit a verified statement of fees to
the agency within thirty (30) calendar days of the date on which this
decision becomes final. The agency shall then process the claim for
attorneys fees in accordance with 29 C.F.R. � 1614.501.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0900)
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)(Supp. V 1993). 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
February 6, 2001
__________________
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
______________________________
1On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply
to all federal sector EEO complaints pending at any stage in the
administrative process. Consequently, the Commission will apply
the revised regulations found at 29 C.F.R. Part 1614 in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.
2In its report of compliance, the agency states that it did not receive
any such submission. The record indicates that complainant's submission
entitled �Workload Reports� was provided to the Commission as part
of complainant's appeal documents and as part of his petition for
enforcement.