05a50640
04-25-2005
Sheldon Gloger, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Sheldon Gloger v. United States Postal Service
05A50640
April 25, 2005
.
Sheldon Gloger,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Request No. 05A50640
Appeal No. 01A31462
Agency No. 1E-971-0039-99, et al
Hearing No. 380-A1-8035X
DENIAL
Sheldon Gloger (complainant) timely requested reconsideration of the
decision in Sheldon Gloger v. United States Postal Service, EEOC Appeal
No. 01A31462 (February 10, 2005). EEOC Regulations provide that the
Commission may, in its discretion, grant a request to 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).
After reconsidering the previous decision and the entire record,<1>
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. 01A31462 remains the
Commission's final decision. There is no further right of administrative
appeal on the decision of the Commission on this request. The agency is
directed to comply with the Order as set forth below.
ORDER (C0900)
The agency is ordered to take the following remedial action:
Within fifteen (15) calendar days of the date this decision becomes
final, the agency shall give complainant a notice of his/her right
to submit objective evidence (pursuant to the guidance given in Carle
v. Department of the Navy, EEOC Appeal No. 01922369 (January 5, 1993) in
support of his/her claim for compensatory damages within forty-five (45)
calendar days of the date complainant receives the agency's notice. The
agency shall complete the investigation on the claim for compensatory
damages within forty-five (45) calendar days of the date the agency
receives complainant's claim for compensatory damages. Thereafter,
the agency shall process the claim in accordance with 29 C.F.R. �
1614.108(f).
Within ninety (90) days of the date on which this decision becomes final,
the agency shall provide EEO training for the agency officials involved
in the decision to send complainant for the initial fitness-for-duty
examination. Such training shall focus on rights and obligations under
the Rehabilitation Act. The Commission notes that such training is
not considered disciplinary in nature.
The agency shall consider taking disciplinary action against the agency
officials involved in the decision to refer complainant for the initial
fitness-for-duty examination. The agency shall report its decision.
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.
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.
POSTING ORDER (G0900)
The agency is ordered to post at its Portland, Oregon Processing and
Distribution Center 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 (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 (R0900)
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 (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
April 25, 2005
__________________
Date
This Notice is posted pursuant to an Order by the United States Equal
Employment Opportunity Commission dated which found that a
violation of the Rehabilitation Act of 1973, as amended, 29 U.S.C. �791
et seq., has occurred at this facility.
Federal law requires that there be no discrimination against any
employee or applicant for employment because of that person's RACE,
COLOR, RELIGION, SEX, NATIONAL ORIGIN, AGE, or PHYSICAL or MENTAL
DISABILITY with respect to hiring, firing, promotion, compensation,
or other terms, conditions, or privileges of employment.
The United States Postal Service, Portland, Oregon Processing and
Distribution Center, supports and will comply with such Federal law and
will not take action against individuals because they have exercised
their rights under law.
The United States Postal Service, Portland, Oregon Processing and
Distribution Center, has been found to have discriminated against the
individual affected by the Commission's finding. The United States
Postal Service, Portland, Oregon Processing and Distribution Center,
shall pay the affected individual's proven compensatory damages and
attorney's fees and costs, if any. The United States Postal Service,
Portland, Oregon Processing and Distribution Center, will ensure that
officials responsible for personnel decisions and terms and conditions
of employment will abide by the requirements of all Federal equal
employment opportunity laws and will not retaliate against employees
who file EEO complaints.
The United States Postal Service, Portland, Oregon Processing and
Distribution Center, will not in any manner restrain, interfere, coerce,
or retaliate against any individual who exercises his or her right to
oppose practices made unlawful by, or who participates in proceedings
pursuant to, Federal equal employment opportunity law.
_________________________
Date Posted: ____________________
Posting Expires: _________________
29 C.F.R. Part 1614
1The Commission notes that complainant states he was born in 1938,
not 1928 as indicated in the previous decision.