Ricky T. Young, Petitioner,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionSep 28, 2005
04a50024 (E.E.O.C. Sep. 28, 2005)

04a50024

09-28-2005

Ricky T. Young, Petitioner, v. John E. Potter, Postmaster General, United States Postal Service, Agency.


Ricky T. Young v. United States Postal Service

04A50024

September 28, 2005

.

Ricky T. Young,

Petitioner,

v.

John E. Potter,

Postmaster General,

United States Postal Service,

Agency.

Petition No. 04A50024

Appeal No. 07A40051

Agency No. 4E-995�0004-00

Hearing No. 380a-08190x

DECISION ON A PETITION FOR ENFORCEMENT

On July 5, 2005, the Equal Employment Opportunity Commission (EEOC or

Commission) docketed a petition for enforcement to examine the compliance

with an order set forth in Ricky T. Young v. United States Postal

Service, EEOC Appeal No. 07A40051 (July 15, 2004).<1> The petitioner

alleged that the agency failed to fully comply with the Commission's

order in Ricky T. Young v. United States Postal Service, EEOC Appeal

No. 07A40051 (July 15, 2004). This petition for enforcement is accepted

by the Commission pursuant to 29 C.F.R. � 1614.503. For the following

reasons, the Commission grants the Petition for Enforcement.

As background, this case has been the subject of a number of appeals. The

petitioner filed a complaint in which he alleged that the agency

discriminated against him on the bases of race (African-American) when

the agency did not select him for promotion. That matter was heard

by an Administrative Judge who ruled for the petitioner. The agency

disagreed with the earlier AJ order and issued a decision, finding

no discrimination. In EEOC Appeal No. 07A40051 (July 15, 2004), the

Commission reversed the agency and directed the agency to: 1) offer the

petitioner appointment to a Tour 3 Supervisor position or a substantially

equivalent one; 2) provide appropriate back pay and benefits, including

attorney's fees; and 3) provide training to the responsible management

officials and to the petitioner. The Commission's order provided that if

the agency did not comply with the Commission's order, the complainant

could petition the Commission for enforcement of the order.

On July 7, 2005, the Commission docketed a petition for enforcement to

examine the compliance with the order. The petitioner alleged that the

agency failed to fully comply with the Commission's order to appoint the

complainant to a Tour 3 Supervisor position or a substantially equivalent

position, with retroactive back pay and benefits. The complainant also

contends that the agency failed to comply with the order to provide the

complainant with all training and job enhancing benefits to which he was

entitled from September 15, 1999. The petitioner notes that similarly

situated supervisors have been provided with substantial amounts of

formal Associate Supervisor Training that have not been provided to the

petitioner. He also seeks an explanation of the breakdown of back pay

and questions the agency's assertion that its payment which included

his regular pay as part of a lump sum payment award.

The agency contends that it has fully complied with the EEOC order.

For the following reasons, we grant the Petition for Enforcement. We note

that the record before us on this petition includes the compliance

record and EEOC file. The matter was assigned to a Compliance Officer

and docketed as Compliance No. 06A40964 on July 15, 2004. Based on this

record, we conclude that the agency has partially complied with the

Order.<2> We will address each of the remaining Order provisions and

our concerns.

Back Pay and Interest

In his petition for enforcement, the petitioner argued that the

agency has not paid all of the back pay and interest due to him. In

his submission dated July 26, 2004, the petitioner, through counsel,

conceded that certain payments had been made subsequent to his filing

the petition for enforcement. Documentation submitted by the agency

to the Compliance Officer provides information on the calculation of

back pay and interest. However, it is not clear whether the agency's

calculations included the period September 15, 1999 through December

21, 2000. Thus, the Commission directs the agency to either provide

documentation clarifying how the back pay and interest already paid

to the petitioner cover the period September 15, 1999 to December 21,

2000 or to make payment to the petitioner for the outstanding back pay

and interest for said period.

Enhancement of Skills Training

The order provided that the agency shall provide the complainant with all

formal, informal, and other training and job enhancing benefits he would

have received absent the discrimination. The petitioner argues that he

has not received training comparable to that given other supervisors. In

particular, the petitioner points to other supervisors attending formal

training under the Associate Supervisor Program in a classroom setting.

His ASP training was informal, on-the-job training. The Commission

finds that the agency has not fully complied.

Attorney's Fees

The Commission's decision provided for the award of reasonable attorney's

fees under Title VII. In addition, Title VII and the Commission's

regulations authorize the award of reasonable attorney's fees and costs to

a prevailing complainant under 29 C.F.R. � 1614.501(e). The petitioner

is entitled to seek attorney's fees in connection with this petition for

enforcement. Accordingly, we find that the petitioner is also entitled

to any fees in connection with the filing of this petition.

Other Benefits

Our records show that the petitioner has been granted the merit increase

that he lost when he was not promoted up until the time he was placed in

the first supervisory position. We note that on appeal, the petitioner

argues that he is entitled to receipt of the national pay increase of 3%

and a further increase of 3.5% for the local component for the Fiscal

Year 2005. The petitioner appears to be raising new issues on appeal.

This matter was not the subject of the prior FAD. The petitioner

is advised that if he wishes to pursue, through the EEO process, the

additional reprisal claims for incidents subsequent to the filing of the

complaint, he shall initiate contact with an EEO Counselor within 15 days

after he receives this decision. The Commission advises the agency that

if the petitioner seeks EEO counseling regarding the new claims within

the above 15-day period, the date petitioner filed the appeal statement

in which he raised these claims with the agency shall be deemed to be

the date of the initial EEO contact, unless he previously contacted a

counselor regarding these matters, in which case the earlier date would

serve as the EEO Counselor contact date.

Therefore, based upon our review of the record on this petition for

enforcement, the decision of the Commission is to grant the petition for

enforcement as it pertains to back pay, the interest, training for the

petitioner and attorney's fees.

ORDER (C0900)

To the extent that the agency has not done so already, the agency is

ordered to take the following remedial action:

1. Within thirty (30) calendar days after receipt of this decision,

the agency shall either provide documentation to the petitioner and

the Commission's Compliance Officer clarifying how the back pay and

interest already paid to the petitioner cover the period September 15,

1999 through December 21, 2000 or make payment to the petitioner for

the outstanding back pay and interest for said period.

If it has not already done so, the agency shall pay the appropriate amount

of interest on the back pay, and other benefits (such as cost of living

adjustments) due the petitioner, pursuant to 29 C.F.R. � 1614.501, no

later than sixty (60) calendar days after the date this decision becomes

final. The petitioner 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 petitioner for the amount claimed or the undisputed amount

within sixty (60) calendar days of the date the agency determines the

amount it believes to be due. The petitioner does not have to petition

for enforcement or clarification of the amount in dispute, because the

Commission will be monitoring for enforcement of the order herein.

Within a reasonable amount of time, the agency shall identify any training

that was provided to other supervisors but which has not been provided

to the petitioner. The agency is also ordered to provide the petitioner

with all formal, informal and other training and other job enhancing

benefits he would have received from September 15, 1999 to the present

date, and which has been provided by the agency to other supervisors in

the Fairbanks General Mail Facility. The agency shall use the training

that was provided to other supervisors as a benchmark.

Within sixty (60) days from the date of this decision which is the final

decision, the agency shall pay the petitioner reasonable attorneys'

fees and costs in connection with efforts after July 15, 2004 or as a

result of prosecuting this petition for enforcement.

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.

ATTORNEY'S FEES (H0900)

If complainant has been represented by an attorney (as defined by

29 C.F.R. � 1614.501(e)(1)(iii)), he/she is entitled to an award of

reasonable attorney's fees incurred in the processing of the complaint.

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 (K0501)

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)

(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.

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 this 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

September 28, 2005

________________

Date

1 The agency did not submit a request for

reconsideration.

2Based on the record before us, which includes the compliance record,

we find that the agency has complied with the order of relief, as follows:

The agency has appointed the complainant to the position of Tour 3

Supervisor or a substantially equivalent position.

The agency has paid the complainant non-pecuniary damages in the amount

of $2,500.

The agency has met the requirement for consideration of disciplinary

action against the agency personnel responsible for the discriminatory

action at issue in this case and did report its decision

The agency has complied with the order to provide EEO training on

the rights and responsibilities under Title VII of the Civil Rights

Act to the agency personnel responsible for the non-selection of the

complainant; and

The agency has posted the Notice to Employees.