01A15142_r
01-10-2002
Vickie E. Clark, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Vickie E. Clark v. United States Postal Service
01A15142
January 10, 2002
.
Vickie E. Clark,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A15142
Agency No. 1I-681-0048-98
DECISION
On August 22, 2001, complainant filed an appeal with the Commission
alleging that the agency failed to comply with a final decision issued
by the agency on March 6, 2001.
A review of the record reveals that during the relevant time, complainant
was employed as a relief window clerk, PS-5, in Lincoln, Nebraska.
Believing she was a victim of discrimination on the basis of her
sex (female), complainant sought EEO counseling and, subsequently,
filed a formal complaint of discrimination on April 13, 1998.
Complainant requested a hearing before an EEOC Administrative Judge (AJ).
On February 1, 2001, the AJ issued a decision finding that complainant was
discriminated against on the basis of her sex (female) when the agency
failed to select her for the position of training technician, PS-6, on
February 26, 1998. The agency issued a final decision on March 6, 2001,
implementing the AJ's decision which provided the following remedies:
A. Not later than sixty days from the date this decision becomes final,
the agency shall offer complainant in writing the position she was denied,
or a position of equal grade and pay, duties and responsibilities, days
off, work hours, and benefits, to be retroactively effective from the
date the selectee entered into the position.
The agency shall remit to complainant all back pay and/or benefits lost
as a result of her February 26, 1998, non-selection. The agency shall
determine the appropriate amount of back pay with interest and other
benefits due complainant, no later than sixty calendar days after the
date this decision becomes final. Complainant shall cooperate in the
agency's effort's to compute back pay, interest, 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 complainant for the undisputed amount
within sixty calendar days of the date the agency determines the amount
it believes to be due. Complainant may petition for enforcement for
the amount in dispute with the agency's EEO Director.
Within sixty calendar days of the date this decision becomes final, the
agency shall tender to complainant nonpecuniary compensatory damages in
the amount of $15,000.00.
The agency shall review the matter giving rise to this complaint and
determine whether the supervisor responsible for the discrimination
should be disciplined for her discriminatory conduct in this case.
Within thirty calendar days of the date this decision becomes final,
the agency shall take corrective action, curative, and preventive action
to ensure that discrimination does not recur, including but not limited
to providing no less than four hours training against discrimination in
employment to the supervisor responsible for the discrimination.
The agency shall pay to complainant's attorneys the sum of $2,236.90
for attorney's fees and costs, no later than sixty calendar days after
the date this decision becomes final.
The record indicates that in a letter to complainant dated June 12,
2001, the agency, apparently in response to a June 7, 2001 letter from
complainant, addressed its compliance with provisions (B), (D), and (E)
of the AJ's decision. The agency's letter stated that, with regard
to provision (B), that although complainant was placed into her job
retroactive to March 14, 1998 and paperwork had been received by the
payroll center on May 29, 2001, complainant's pay claim �could take
longer� than the normal 8 weeks to process because of the three years
of records necessary to examine. Concerning provision (D), the agency
stated that the AJ only required a review to determine if discipline
was necessary, and a review had been conducted by the Manager of Labor
Relations. With regard to provision (E), the agency noted as evidence
of its compliance an attached copy of a training record dated May 14-15,
2001, for four hours of sexual harassment awareness training given to
the supervisor responsible for the discrimination.
The record also contains an invoice dated July 4, 2001, showing a salary
overpayment to complainant, which was in part offset, resulting in a
$771.02 amount due to the agency. The record also shows, in response to
complainant's questioning of the amount due, a July 24, 2001 memorandum
sent to complainant attempting to explain complainant's service history
and its relationship to the amount due, as well as the possibility of
an �anomaly payment� to complainant related to her promotion.
Finally, the record contains a �Petition for Enforcement� from complainant
dated August 3, 2001, originally sent to the AJ who issued the decision,
and the AJ's reply. The petition referenced provision (B) of the AJ's
decision, and stated that the agency had failed to comply �or transmit
any comprehensible document� to complainant, but instead sent the June
12, July 4, and July 24, 2001 documents noted above. The petition also
asserted that the agency failed to comply with provisions (D) and (E)
of the AJ's decision, claiming for provision (E) that �reading from a
book on sexual harassment awareness training is insufficient to meet
the at least four-hour training requirement.�
In the August 9, 2001 reply to complainant returning the �Petition
for Enforcement,� the AJ quoted the language of provision (B) of the
decision stating that a claim of alleged noncompliance must be filed
with the agency's EEO Director. The AJ also noted the procedure stated
in the decision for appealing to the Commission if the agency failed to
respond to the alleged noncompliance or if complainant was not satisfied
with the agency response. On August 22, 2001, complainant forwarded the
August 3, 2001 Petition for Enforcement to the Commission as an appeal.
Upon review, we find that there is insufficient evidence in the record
to make a determination as to whether the agency has complied with its
final action implementing the AJ's decision. Although complainant is
apparently claiming that the agency failed to comply with provisions
(B),(D), and (E) of the AJ's decision, neither the agency's June 12, 2001
response to complainant's concerns nor any of the other documentation
supplied by complainant (independently or considered together) is
sufficient to indicate if the agency complied with the provisions cited.
To the contrary, absent a detailed response from the agency complete
with supporting documentation, especially concerning provision (B)
and its relationship to an alleged overpayment of complainant, we are
unable to reach a decision concerning agency compliance. Consequently,
we shall remand the case to the agency to supplement the record with
evidence addressing compliance and to issue a new determination as to
whether it has complied with provisions (B), (D), and (E) of the AJ's
decision implemented in its final action.
Accordingly, the case is REMANDED to the agency for further processing
in accordance with this decision and the Order below.
ORDER
The agency is ORDERED to take the following actions:
Within 30 calendar days of the date this decision becomes final, the
agency shall supplement the record with any relevant evidence concerning
agency compliance with provisions (B),(D), and (E) of the AJ's decision.
This evidence shall include complainant's June 7, 2001 correspondence
with the agency concerning compliance with the decision, evidence
indicating payment to complainant, the date(s) of such payment(s),
the method of calculation of back pay and/or benefits, evidence of any
review to determine discipline for the supervisor responsible for the
discrimination, and the specific training given to the supervisor as
a result of the decision.
Within 30 calendar days of the date this decision becomes final, the
agency shall issue a new determination (including appeal rights to the
Commission) as to whether it has complied with provisions (B),(D), and
(E) of the AJ's decision as implemented in the agency's March 6, 2001
final action.
A copy of the agency's new determination concerning compliance with
provisions (B),(D), and (E) of the AJ's decision must be sent to the
Compliance Officer as referenced below.
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.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
The Commission may, in its discretion, reconsider the decision in this
case if the complainant or the agency submits a written request containing
arguments or evidence which tend to establish 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.
Requests to reconsider, with supporting statement or brief, must be filed
with the Office of Federal Operations (OFO) within thirty (30) calendar
days of receipt of this decision or within twenty (20) calendar days of
receipt of another party's timely request for reconsideration. See 29
C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for
29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999). All requests
and arguments must be submitted to the Director, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. In the absence of a legible postmark, the
request to reconsider shall be deemed timely filed if it is received by
mail within five days of the expiration of the applicable filing period.
See 29 C.F.R. � 1614.604. The request or opposition must also include
proof of service on the other party.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely, unless extenuating circumstances
prevented the timely filing of the request. Any supporting documentation
must be submitted with your request for reconsideration. The Commission
will consider requests for reconsideration filed after the deadline only
in very limited circumstances. See 29 C.F.R. � 1614.604(c).
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
January 10, 2002
__________________
Date