0420130017
05-09-2014
Petitioner, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Pacific Area), Agency.
Petitioner,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Pacific Area),
Agency.
Petition No. 0420130017
Appeal No. 0120093702
Agency Nos. 4F913009007, 4F913009007
DECISION ON A PETITION FOR ENFORCEMENT
On May 16, 2013, the Equal Employment Opportunity Commission (EEOC or Commission) docketed a petition for enforcement to examine the enforcement of an Order set forth in Zepour Parsanian v. U.S. Postal Service, Appeal No. 0120093702 (January 7, 2011). The Commission accepts this petition for enforcement pursuant to 29 C.F.R. � 1614.503. Petitioner alleged that the Agency failed to fully comply with the Commission's order in the above referenced case.
BACKGROUND
At the time of events giving rise to this complaint, Petitioner worked as a clerk at the Agency's facility in Glendale, California.
Petitioner filed a complaint in which she alleged that the Agency discriminated against her on the bases of race (Caucasian), national origin (Iranian-Armenian), sex (female), disability (back injury), and reprisal for prior protected EEO activity in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq., and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq. Eventually, in Appeal No. 0120093702, this Commission found that Petitioner was discriminated against when she was denied three VV-06 positions based solely on having a record of being disabled.
The record further indicates that, prior to Petitioner's appeal to the Commission, she filed a grievance concerning the Agency's failure to select her in December 2005 as the senior bidder for one of the three VV-06 positions at issue. Pursuant to a March 13, 2008 pre-arbitration settlement, Petitioner was awarded a VV-06 position retroactive to February 2006. The agreement also provided for out-of-schedule pay for the time that Complainant's schedule would have been changed, from December 2005 to March 2008.
The decision in EEOC Appeal No. 0120093702, ordered, in relevant part, that:
1. The Agency shall pay to Complainant all pay and benefits (including but not limited to, sick and annual leave, health and life insurance, retirement contributions) she would have received had Complainant been selected for the bid positions in December 2005. Any relief already provided to Complainant through the pre-arbitration grievance settlement regarding the denied bids, need not be provided again.
2. The Agency shall pay to Complainant $1,625.00 in non-pecuniary compensatory damages.
3. The Agency shall prominently post at the Verdugo Viejo Station a notice of the finding of discrimination in conformity with 29 C.F.R. Part 1614. The notice shall indicate that it is being posted pursuant to this Decision.
The matter was assigned to a Compliance Officer and docketed as Compliance No. 0620110186 on January 10, 2011.
On May 16, 2013, Petitioner submitted the instant petition for enforcement. Petitioner contends that the Agency failed to pay her the appropriate amount of back pay. Specifically, Complainant contends that she is entitled to additional back pay because, but for the discrimination in being denied one of the VV-06 positions, she would have later been awarded a higher level VV-07 bid position.
In response to Petitioner's claims, the Agency argues that the decision in EEOC Appeal No. 0120093702 established that the back pay period covered the period from December 2005 until the time Complainant was awarded the VV-06 position through the settlement. The record further indicates that, in accordance with the pre-arbitration grievance settlement, Complainant was awarded the VV-06 position retroactively to February 1, 2006. In addition, it was agreed that Petitioner would receive out-of-schedule pay for the time period between December 2005 and March 2008. Complainant now contends that she is entitled to additional back pay based on her speculation that she would have been awarded a bid assignment for a higher level VV-07 position had she not been subjected to discrimination with respect to the VV-06 position.
In its compliance report, the Agency submitted evidence that Complainant was paid $8,371.00 as back pay for the period between December 2005 and when Complainant was placed in the VV-06 position in accordance with the March 13, 2008 pre-arbitration grievance settlement, as well as paid $1,625.00 in non-pecuniary damages. In addition, the Agency submitted evidence that a Notice regarding the finding of discrimination was prominently placed at Petitioner's workplace.
ANALYSIS AND FINDINGS
In deciding this matter, we first note that clarification issued in response to a petition for enforcement cannot change the result of the prior decision or enlarge the relief ordered. See 29 C.F.R. � 1614.503(c). Our decision in EEOC Appeal No. 0120093702 only awarded backpay for the discriminatory denial of the VV-06 position. Petitioner is now seeking additional compensation for a VV-07 bid she believes she would have gotten had she not been denied the VV-06 position. However, after careful consideration of the arguments of both parties, we conclude that the manner in which Petitioner would have the Order interpreted would result in an award beyond that required by EEOC Appeal No. 0120093702. Other than her own speculation, Petitioner has not established that but for the Agency's actions in failing to award her the VV-06 bid she would have also been awarded a higher level VV-07 bid assignment, which became vacant in June 2006. Accordingly, we find that the Agency properly determined the relief due petitioner in the present matter.
CONCLUSION
Based upon review of the record, and for the foregoing reasons, Petitioner's request for further relief is DENIED.
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (P0408)
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 (Z1008)
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
May 9, 2014
__________________
Date
2
0420130017
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0420130017