0720070047
02-11-2011
Linda E. Wright, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Capital Metro), Agency.
Linda E. Wright,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Capital Metro),
Agency.
Appeal No. 0720070047
Hearing No. 430-2006-00120X
Agency No. 4K-230-0021-06
DISMISSAL OF APPEAL
Following its May 4, 2007 final order, the Agency filed an appeal,
pursuant to 29 C.F.R. � 1614.405(a). On appeal, the Agency requests
that the Commission affirm its rejection of an EEOC Administrative
Judge's (AJ) finding of discrimination in violation of Section 501
of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended,
29 U.S.C. � 791 et seq. The Agency also requests that the Commission
affirm its rejection of the relief ordered by the AJ. For the following
reasons, the Commission DISMISSES the Agency's appeal because it was
untimely filed.
BACKGROUND
On January 24, 2006, Complainant filed an EEO complaint alleging that
she was discriminated against and harassed on the basis of disability
(Bilateral Plantar Fasciitis and Lumbar Sacral Strain) and in reprisal
for prior protected EEO activity under the Rehabilitation Act. At the
conclusion of the investigation, Complainant timely requested a hearing,
and the AJ held a hearing on December 12, 2006.
The AJ issued a decision on February 14, 2007, in which he found
that Complainant was subjected to discrimination in violation of the
Rehabilitation Act. The AJ ordered the Agency to offer complainant
the modified secretary position or a substantially equivalent position;
pay her back pay, $1,350.00 in past medical expenses; $1,600.00 in
future medical expenses; $1,150.00 for early Thrift Savings Plan (TSP)
withdrawal tax penalties; $100,000.00 in non-pecuniary compensatory
damages; and $19,835.68 in attorney's fees and costs; and post a notice
to all employees at the facility that they have the right to be free
from unlawful discrimination. The AJ also recommended that the Agency
suspend two responsible management officials for 15 days.
On May 4, 2007, the Agency issued a final order accepting the AJ's
finding that there was no reprisal but rejecting and appealing the AJ's
finding that complainant proved that she was subjected to disability
discrimination.
CONTENTIONS ON APPEAL
On appeal, the Agency contends that the AJ erred in finding that
it violated the Rehabilitation Act. Complainant contends that the
Agency's May 4, 2007 appeal is untimely because the Agency did not file
it with the Commission within the 40-day time limit. The Agency responds
that the 40-day time limit did not begin to run until the hearing file,
transcript, and decision were received on March 26, 2007, by its National
EEO Investigative Services Office (NEEIOSO) in Florida. The Agency
maintains that although the Agency has advised the Commission's District
Offices to send hearing files and decisions to its Florida office, the
AJ in this case sent the decision and files to the Pennsylvania office.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. � 1614.110 (a) states, in pertinent part, that
when an AJ has issued a decision, the agency shall take final action on
the complaint by issuing a final order within 40 days of receipt of the
hearing file and the AJ's decision. If the final order does not fully
implement the AJ's decision, the agency shall simultaneously file an
appeal to the Commission. 29 C.F.R. � 1614.110 (a).
In this case, the record reflects that the AJ sent his decision and
the hearing file to the Agency's EEO Compliance and Appeals Office in
Pennsylvania and Capital Metro Office in Maryland on March 16, 2007.
The AJ mailed the decision and hearing file from the Commission's
Charlotte, North Carolina District Office.
The Agency maintains that in a letter dated October 30, 2006, it requested
that the Supervisory AJ in the Commission's Charlotte District Office
send decisions to its National Equal Employment Opportunity Investigative
Services Office (NEEIOSO) in Florida, but the AJ in this case improperly
sent it to its offices in Maryland and Pennsylvania. The Agency further
contends that its appeal is timely because NEEIOSO did not receive the
AJ's decision until its Maryland or Pennsylvania offices relayed it to
NEEIOSO, which received it on March 26, 2007.
However, the record reveals that during the hearing stage, the Agency
made submissions to the AJ hearing this case that reflected that its
Maryland Law Office was its address of record for this case, including
its January 19, 2007, Opposition to Complainant's Claim for Damages.
Moreover, while the Agency asked a Supervisory AJ to send decisions to
NEEEISO, there is no evidence in the record that the Agency informed the
AJ who heard this case to send the hearing file and decision to NEEIOSO
rather than its Maryland Law Office. Under these circumstances, we
apply the presumption that the decision and hearings file were received
at the Agency's offices within five days after the date it was mailed,
or by March 21, 2007.1 In so finding, we determine that the five-day
presumption is especially strong in this case because the Agency received
the decision at both its EEO Compliance and Appeals Office and Law Office.
The Agency did not appeal the AJ's decision to the Commission until May
4, 2007, which is four days beyond the 40-day time limit. The Agency
did not provide any evidence that would warrant an extension of waiver
of the applicable time limits.
Because the Agency's appeal was untimely and without justification
for an extension of the time limitations period, we find that it
failed to take final action during the 40-day period set forth in the
Commission's regulations at 29 C.F.R. � 1614.110(a). Accordingly, the
AJ's decision became the final action of the Agency on May 1, 2007.
McCue v. U.S. Postal Serv., EEOC Appeal No. 01A13411 (Aug. 8, 2002).
Further, because the Agency's failure to timely file its appeal
constituted a failure to take action during the 40-day period,
the Agency cannot now challenge any aspect of the AJ's decision.
McCue, supra. The Commission will not address the merits of the AJ's
decision nor make a determination as to the appropriateness of the remedy
provided. Accordingly, the Agency's appeal is dismissed. The Commission
directs the agency to provide relief consistent with the AJ's decision,
as set out in the Order below.
CONCLUSION
Accordingly, the Agency's appeal is DISMISSED. The Agency is directed
to comply with the Order below.
ORDER
The Agency is ordered to take the following remedial actions within sixty
(60) calendar days of this decision becoming final:
1. The Agency shall offer Complainant the position of Modified Secretary,
or a substantially equivalent position. Complainant shall have 15 calendar
days from receipt of the offer within which to accept or decline the
offer. Failure to accept the offer within the 15-day period will be
considered a declination of the offer, unless Complainant can show that
circumstances beyond her control prevented a timely response. If the
offer is accepted, appointment in the position shall be retroactive to
March 8, 2006.
2. Determine the appropriate amount of back pay, with interest, and other
benefits due Complainant, pursuant to 29 C.F.R. � 1614.501. 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 Complainant for the
undisputed amount within sixty (60) calendar days of the date the Agency
determines the amount it believes to be due. 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. Pay Complainant $1,350 for past medical expenses, $1,600.00 for future
medical expenses, and $1,150.00 for Complainant's TSP fund tax penalty.
4. Pay Complainant $100,000.00 in non-pecuniary compensatory damages.
5. Pay Complainant $19,835.68 in attorney's fees and costs
6. Provide each of the individuals responsible for violating the
Rehabilitation Act in this case and all management at its Petersburg
facilities with at least 16 hours of training on their responsibilities,
rights and obligations under federal equal opportunity laws and
regulations. The training must pay particular attention to management's
obligations under the Rehabilitation Act.
7. Consider taking appropriate disciplinary action against the responsible
management officials. The Commission does not consider training to
be disciplinary action. The Agency shall report its decision to the
compliance officer. 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. If any of the responsible management officials
have left the Agency's employ, the Agency shall furnish documentation
of their departure date(s).
8. Post a notice of the finding of discrimination in accordance with
the below-entitled paragraph, "Posting Order."
9. Submit a report of compliance, as provided in the below-entitled
paragraph, "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.
POSTING ORDER (G0910)
The Agency is ordered to post at the Petersburg, Virginia Main Post
Office 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 (H0610)
If Complainant has been represented by an attorney (as defined by
29 C.F.R. � 1614.501(e)(1)(iii)), she is entitled to an award of
reasonable attorney's fees incurred in responding to the Agency's appeal.
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 (K0610)
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 77960, Washington,
DC 20013. 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 RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
The Commission may, in its discretion, reconsider the decision in this
case if the Complainant or the Agency submits a written request containing
arguments or evidence which tend to establish 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.
Requests to reconsider, with supporting statement or brief, must be filed
with the Office of Federal Operations (OFO) within thirty (30) calendar
days of receipt of this decision or within twenty (20) calendar days of
receipt of another party's timely request for reconsideration. See 29
C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for
29 C.F.R. Part 1614 (EEO MD-110), at 9-18 (Nov. 9, 1999). All requests
and arguments must be submitted to the Director, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 77960,
Washington, DC 20013. In the absence of a legible postmark, the request
to reconsider shall be deemed timely filed if it is received by mail
within five days of the expiration of the applicable filing period.
See 29 C.F.R. � 1614.604. The request or opposition must also include
proof of service on the other party.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely, unless extenuating circumstances
prevented the timely filing of the request. Any supporting documentation
must be submitted with your request for reconsideration. The Commission
will consider requests for reconsideration filed after the deadline only
in very limited circumstances. See 29 C.F.R. � 1614.604(c).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (R0610)
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 (Z0610)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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 with
the Court 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 11, 2011
Date
1 The Commission notes that, where certified mail/return receipt is not
used by an EEOC Administrative Judge, an agency is generally deemed to
have received the decision five days after it was sent. EEO MD-110, 9-2
n.2. ("If service of the Administrative Judge's decision was by mail
without the use of certified mail/return receipt, the agency may add
five days to the date that the final action is due. This rule, adding
five days to the date of service, shall apply in all instances where the
party being served has the right to take an action within a period of
time following such service, except where the serving party uses certified
mail/return receipt and can establish the date of actual receipt.").
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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