05A20733
10-08-2002
Mary L. Stewart, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Pacific Area), Agency.
Mary L. Stewart v. United States Postal Service
05A20733
October 8, 2002
.
Mary L. Stewart,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Pacific Area),
Agency.
Request No. 05A20733
Appeal No. 01A21763
Agency Nos. 1F-906-0026-98 and 1F-906-1053-95
Hearing Nos. 340-99-3165X and 340-99-3676X
DENIAL OF REQUEST FOR RECONSIDERATION
Mary L. Stewart (complainant) timely initiated a request to the Equal
Employment Opportunity Commission (EEOC or Commission) to reconsider
the decision in Mary L. Stewart v. United States Postal Service, EEOC
Appeal No. 01A21763 (April 11, 2002). 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).
Complainant submitted on February 4, 2002, a filing which we accepted as
a timely appeal pursuant to 29 C.F.R. � 1614.504(b) from the agency's
letter of January 28, 2002 responding to complainant's allegation of
non-compliance with the Administrative Judge's (AJ) order of relief.
The AJ ordered the agency to calculate back pay and pecuniary damages
for certain medical expenses, and the parties had an apparent dispute
regarding whether or not overtime and holidays should be included in
the back pay award.
In the Commission's decision, we directed the agency to comply with our
Order, which directed the agency, to the extent it had not already done
so, to provide the relief ordered by the AJ, consistent with the decision.
We stated that if the agency did not comply, complainant could file a
petition for enforcement of the Order, pursuant to 29 C.F.R. � 1614.503.
Complainant then filed a request for reconsideration with the Commission,
stating that she did not appeal the agency's adoption of the AJ's
decision because, although the agency decision was sent by certified
mail which she picked up and signed for, she was under stress, did not
understand that it was the agency's final decision, her representative
failed and refused to advise her to her appeal rights, and that her
representative performed acts sufficient to constitute ineffectiveness
of counsel. Complainant appears to be seeking a new hearing.
Initially, the Commission notes that despite complainant's allegations
that her representative failed to advise her of her appeal rights, the
record reveals that the agency issued a final order on September 17,
2001, in which it agreed to implement the AJ's decision. The final order
contained a notice of appeal rights, and was sent to complainant by
certified mail. A copy of the return receipt in the record indicates
that complainant received the final order on September 21, 2001.
Pursuant to 29 C.F.R. � 1614.402, complainant's appeal was required
to be filed within thirty (30) days of her receipt of the final order.
Accordingly, we again find that complainant's appeal with respect to the
final order was untimely. However, we note that we accepted complainant's
letter dated February 4, 2002 as a timely appeal pursuant to 29 C.F.R. �
1614.504(b) from the agency's letter of January 28, 2002 responding to
complainant's allegation of non-compliance with the AJ's order of relief
and issued our previous decision as a result.
Thus, 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. 01A21763 remains the Commission's final decision.
We will restate our previous Order, and again note that if the agency
does not comply with the Order, complainant may file a petition for
enforcement of the Order below, pursuant to 29 C.F.R. � 1614.503.
ORDER
To the extent the agency has not already done so, the agency is ordered
to take the following remedial action within thirty (30) days of the
date this decision becomes final:
(1) Reinstate complainant to her former position, or to an equivalent
one, retroactive to June 12, 1998, the date of removal, with full back
pay and all benefits to which she would have been entitled had she not
been removed, plus interest, consistent with the foregoing decision.
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."
(2) Upon her return to work, complainant shall provide the agency with
a list of her current medical restrictions, and should they preclude her
from performing the essential functions of her position, the agency shall
engage in the requisite individualized assessment of her limitations in
order to determine how to accommodate her pursuant to the Rehabilitation
Act.
(3) Post a notice to all employees at the Worldway Airmail Center,
signed by the agency's duly authorized representative, for a period
of sixty (60) consecutive days, in conformity with EEOC regulations,
as directed by the Administrative Judge.
(4) The agency shall afford complainant 30 days to resubmit documentation
which fully supports the amounts requested for outstanding medical
expenses cited at Complainant's Exhibit 6 in the hearing record, and
in particular confirms the amounts which are currently outstanding.
Within thirty (30) days of receipt of the subject documentation, the
agency shall pay those expenses and provide complainant with a copy of
the checks and cover letters confirming payment.
(5) The agency shall pay complainant $25,000 in non-pecuniary damages.
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
October 8, 2002
__________________
Date