Vickie E. Clark, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionJan 10, 2002
01A15142_r (E.E.O.C. Jan. 10, 2002)

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