Kim Newbold, Petitioner,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionFeb 6, 2001
04a00025 (E.E.O.C. Feb. 6, 2001)

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.