04990028
06-22-2000
v. ) Request No. 05970799
Charlene Van Doren v. United States Postal Service
04990028
June 22, 2000
Charlene Van Doren, )
Petitioner, ) Petition No. 04990028
v. ) Request No. 05970799
) Appeal No. 01953958
William J. Henderson, ) Agency No. 3-S-0018-6
Postmaster General, ) Hearing No. 150-94-8138X
United States Postal Service, )
Agency. )
____________________________________)
PETITION FOR ENFORCEMENT
Charlene Van Doren (hereinafter referred to as petitioner) filed a
Petition for Enforcement with the Equal Employment Opportunity Commission
(Commission) requesting enforcement of the order for remedial relief
set forth in Charlene Van Doren v. United States Postal Service, EEOC
Request No. 05970799 (July 17, 1998).<1> This petition for enforcement
is accepted by the Commission pursuant to 29 C.F.R. � 1614.503(a).
ISSUE PRESENTED
The issue presented herein is whether the agency has complied with the
Order in the Commission's previous decision.
BACKGROUND
The record in the case herein reveals that petitioner filed a formal
EEO complaint on July 15, 1996, alleging discrimination based on mental
disability (paranoid schizophrenia), age (43), and reprisal (prior EEO
activity) when her request to rescind her resignation from the agency
was denied. Prior to her resignation, petitioner was a Distribution
Clerk, PS-5, in the agency's Snapper Creek facility, in Miami, Florida.
Petitioner was diagnosed as having Paranoid Schizophrenia as early
as May 1985, and was hospitalized on three separate occasions in
1985. On November 20, 1985, petitioner returned to work following
an absence. She was instructed to report to the agency's medical
unit for an examination in order to be cleared to return to work.
Petitioner feared that upon examination, she would be rehospitalized,
and therefore, submitted her resignation effective November 29, 1985
and indicated that the reason was that she was "moving out of town."
Petitioner made several attempts to rescind her resignation before, on
and after its effective date as a reasonable accommodation. By letter
dated December 31, 1985, the Postmaster of petitioner's facility refused
her request and suggested that petitioner apply for reinstatement which
would result in her losing her sixteen years of seniority.
The agency issued a final agency decision (FAD-1) in December 1986.
FAD-1 rejected petitioner's complaint as untimely. Petitioner appealed
FAD-1 to the Commission which vacated FAD-1 and remanded the complaint
for investigation. Upon investigation, petitioner requested a hearing
before an EEOC Administrative Judge (AJ). On September 26, 1990, the AJ
issued a summary judgment and recommended decision. The agency issue a
second FAD (FAD-2) adopting the AJ's recommendation. Petitioner filed a
civil action in U.S. District Court for the Southern District of Florida.
The Senior District Judge dismissed the action without prejudice and
remanded the case to the agency for a determination on the merits.
Petitioner subsequently requested an EEOC hearing which was held on
August 23, 24, and 26, 1994. The AJ concluded that petitioner was an
individual with a disability and that the agency discriminated against
petitioner on the basis of mental disability when it failed to accommodate
her by not allowing her to withdraw her resignation. The agency issued
its FAD (FAD-3) which did not concur with the AJ's decision. Petitioner
appealed the decision to the Commission which found in Van Doren v. United
States Postal Service, EEOC Appeal No. 01953958 (April 27, 1997) that
the AJ correctly found that the agency failed to accommodate petitioner.
The Commission's decision ordered the following remedial actions:
(1) Within sixty (60) days of the date on which this decision becomes
final, the agency shall offer to reinstate appellant to her former
position or a substantially equivalent position, with reasonable
accommodation of her disability if necessary. If the agency establishes
that it is unable to reasonably accommodate appellant in such position,
the agency shall offer appellant reassignment to another position as set
forth under 29 C.F.R. � 1614.203(g), with reasonable accommodation if
necessary, on a date certain no more than thirty (30) days from the date
of the offer, and including all appropriate assurances that the unlawful
discrimination appellant previously experienced will not recur. Appellant
shall cooperate with the agency's efforts to reasonably accommodate her
disability. If appellant requests reasonable accommodation and the need
for reasonable accommodation is not obvious, the agency may ask appellant
for reasonable documentation about her disability and the functional
limitations that necessitate reasonable accommodation. Appellant shall
supply any such information to the agency within thirty (30) days of
her receipt of the agency's request.
(2) The agency shall award appellant back pay, interest, and other
benefits she would have received absent discrimination. The agency
shall provide back pay to appellant for the period November 29, 1985,
until the date on which appellant's application for disability retirement
was accepted. The agency shall determine the appropriate amount of back
pay, with interest, and other benefits due appellant, pursuant to 29
C.F.R. �1614.501, no later than sixty (60) calendar days after the date
this decision becomes final. Appellant 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 appellant for the undisputed amount
within sixty (60) calendar days of the date the agency determines the
amount it believes to be due. Appellant 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) The agency shall take immediate steps to provide training to all
supervisory and managerial staff in its Miami, Florida, Division on
the current state of the law on employment discrimination, including
discrimination based on disability and the goals behind the law requiring
equal employment opportunities for all.
(4) The agency shall post the attached Notice in accordance with the
directive below.
(5) The agency shall pay appellant's reasonable attorney fees and costs
incurred in the processing of this complaint as described below.
(6) 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 of the
agency's calculation of back pay and other benefits due appellant,
including evidence that the corrective action has been implemented.
The agency filed a Request for Reconsideration which was denied in
Van Doren v. United States Postal Service, EEOC Request No. 05970799
(July 17, 1998). On February 5, 1999, petitioner filed a Petition for
Enforcement of the Commission's order. According to her petition, the
agency has complied with a portion of the order, namely, it has reinstated
petitioner as of January 4, 1999, and has paid attorney fees and costs
incurred prior to the filing of this petition. Petitioner argues that
the agency has failed to comply with the order for failing to provide
the Commission with an implementation report, to post the notice, and to
provide petitioner will the appropriate back pay, overtime differential,
holiday pay, bonuses, sick leave, and annual leave. The agency has
failed to respond to this petition.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. �1614.503(a) provides that a complainant may
petition the Commission for enforcement of a decision issued under the
Commission's appellate jurisdiction. In the case herein, the Commission
sought to make petitioner whole by restoring her "to a position where
[she] would have been were it not for the unlawful discrimination." Franks
v. Bowman Transportation Co., 424 U.S. 747, 764 (1976); see also,
Albemarle Paper Co. v. Moody, 422 U.S. 405, 418 (1975). At issue is
whether the agency has fully complied with the Commission's prior Order.
Petitioner acknowledged being reinstated to a substantially equivalent
position and receiving attorneys fees and costs. Petitioner does not
challenge these issues only the issues of back pay and benefits, posting
order, and implementation report.
Back Pay
Upon review of the previous decision, we must determine if the agency
was correct when it decided that it did not own petitioner any back pay
because she received disability retirement. The order indicates that
"[t]he agency shall provide back pay to appellant for the period beginning
November 29, 1985, until the date on which appellant's application
for disability retirement was accepted." Upon review of the record,
the Commission finds that petitioner's application for disability
retirement was accepted retroactively to November 30, 1985. Therefore,
the Commission finds that the agency correctly determined that it does
not owe petitioner back pay.
As to petitioner's request for overtime, bonuses, and interest, the
Commission has held that back pay should include all forms of compensation
and must reflect fluctuations in working time, overtime rates, penalty
overtime, Sunday premium and night work and other changing rates of pay to
which petitioner would have been entitled but for the discrimination. See
Dale R. Allen v. Department of Air Force, EEOC Petition No. 04940006
(May 31, 1996). Since the Commission finds that the agency does not
owe petitioner back pay, the same applies for petitioner's request for
bonuses, overtime, and interest.
Posting Order
Upon review of the record, the Commission finds that the agency has
failed to provide the Compliance Officer with any information regarding
compliance with the posting order of the previous decision. Accordingly,
we find that the agency has failed to comply with the previous decision's
posting order and shall take the remedial action ordered below.
Report to the OFO Compliance Officer
Upon review of the record, the Commission finds that the agency has failed
to submit information on its compliance with the previous decision's
Order to the OFO Compliance Officer. Further, the agency has failed
to respond to requests sent by the Compliance Officer regarding the
previous decision's Order. The agency is therefore directed to submit
documentation to the OFO Compliance Officer.
CONCLUSION
Based upon a thorough review of the record, consideration of the arguments
of the parties, and for the foregoing reasons, the Commission grants the
Petition for Enforcement of the order in Charlene Van Doren v. United
States Postal Service, EEOC Appeal No. 01953958 (April 21, 1997), request
denied, EEOC Request No. 05970799 (July 17, 1998). We find that the
agency has failed to comply fully with the order in the cited appeal
and so further processing of this matter is necessary. The agency is
therefore directed to take the steps contained in the following ORDER.
ORDER
The agency is directed to comply with the provisions of the order
in Charlene Van Doren v. United States Postal Service, EEOC Appeal
No. 01953958 (April 21, 1997), as clarified by this decision, within sixty
(60) calendar days of the date this decision is received. Specifically,
the agency shall complete processing of the posting order below and
submit a report of compliance as provided below in "Implementation of
the Commission's Decision."
POSTING ORDER (G1092)
The agency is ORDERED to post at its Snapper Creek facility, in Miami,
Florida 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.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K1199)
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 64
Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter
referred to as 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)(Supp. V 1993). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 64 Fed. Reg. 37,644, 37,659 (1999)
(to be codified and hereinafter referred to as 29 C.F.R. � 1614.409).
STATEMENT OF PETITIONER'S RIGHTS - ON PETITION FOR ENFORCEMENT
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (P0400)
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:
June 22, 2000
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
An Agency of the United States Government
This Notice is posted pursuant to an Order by the United States Equal
Employment Opportunity Commission dated _____________ which found that a
violation of Section 501 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 the 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, Miami, Florida Division, 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, Miami, Florida Division, has been
found to have discriminated against the individual affected by the
Commission's finding. The United States Postal Service, Miami, Florida
Division 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, Miami, Florida Division, 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
1On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply to all
federal sector EEO complaints pending at any stage in the administrative
process. Consequently, the Commission will apply the revised regulations
found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.