Wayne Angin and Maria Anginv.United States Postal Service 04A30012; 04A30013 December 1, 2003 Wayne Angin and Maria Angin, Petitioners, v. John E. Potter, Postmaster General, United States Postal Service (Pacific Area), Agency.

Equal Employment Opportunity CommissionDec 1, 2003
04A30012_04A30013final (E.E.O.C. Dec. 1, 2003)

04A30012_04A30013final

12-01-2003

Wayne Angin and Maria Angin v. United States Postal Service 04A30012; 04A30013 December 1, 2003 Wayne Angin and Maria Angin, Petitioners, v. John E. Potter, Postmaster General, United States Postal Service (Pacific Area), Agency.


Wayne Angin and Maria Angin v. United States Postal Service

04A30012; 04A30013

December 1, 2003

Wayne Angin and Maria Angin,

Petitioners,

v.

John E. Potter,

Postmaster General,

United States Postal Service

(Pacific Area),

Agency.

Petition Nos. 04A30012 & 04A30013

Appeal Nos. 01980302; 01982262

Agency Nos. 4F-940-1219-95; 4F-940-1218-95

Hearing Nos. 370-96-X2582; 370-96-X2583

DECISION ON A PETITION FOR ENFORCEMENT

On October 29, 2002, the Equal Employment Opportunity Commission (EEOC

or Commission) docketed two petitions for enforcement to examine the

enforcement of an order set forth in Wayne and Maria Angin v. United

States Postal Service, EEOC Appeal Nos. 01980302 & 01982262 (August

22, 2001).

In EEOC Appeal Nos. 01980302 and 01982262, the Commission found that

the agency violated Section 501 of the Rehabilitation Act of 1973

(Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq. when it failed

to reasonably accommodate petitioners in their original work place but

instead reassigned them to an alternative work location.

The Commission's Order stated as follows, in pertinent part:

1. Within sixty (60) calendar days of the date this decision becomes

final, the agency is directed to accommodate both Complainant 1 and

Complainant 2 in their original positions at the West Portal Station.

2. Within sixty (60) calendar days of the date this decision becomes

final, the agency is directed to restore to both Complainant 1 and

Complainant 2 any lost benefits that may have resulted from the transfer

out of the West Portal Station.

The matter was assigned to a Compliance Officer and docketed as Compliance

Nos. 06A11875 and 06A21723 on September 23, 2001. On October 29, 2002,

Petitioners submitted the petitions for enforcement at issue.

Petitioner Wayne Angin (hereinafter �Petitioner 1") contends that the

agency failed to pay the appropriate back pay award. Petitioner Maria

Angin (hereinafter �Petitioner 2") contends that: (1) the agency failed

to return her to work; and (2) the agency failed to pay the appropriate

back pay award.

Analysis and Findings

Petitioner 1's Back Pay Claim

Petitioner 1 claims that he is entitled to �out-of-schedule pay.�

Out-of-schedule pay is a form of premium pay due to employees who are

required to work outside of their regularly assigned schedule. See Arnold

v. United States Postal Service, EEOC Appeal No. 07A20087 (June 25, 2003);

Sansosti v. United States Postal Service, EEOC Petition No. 04990004

(June 17, 1999). Petitioner 1 does not allege that he was made to

work a schedule other than his regularly assigned schedule or that he

missed the opportunity to work out-of-schedule because he was reassigned

to a different work location. Rather, Petitioner 1 claims that he is

entitled to �out-of-schedule pay� because the schedule to which he was

assigned, and which he worked, was not the schedule to which he should

have been assigned. Relief under the Rehabilitation Act is limited to

the restoration of lost benefits, such as back pay, pension benefits,

seniority, fringe benefits, and other concomitants of employment which

would have been earned or accrued absent discrimination. See Albemarle

Paper Co. v. Moody, 422 U.S. 405 (1975). Since the evidence does not

support the finding that Petitioner 1 would have earned �out-of-schedule

pay� had he been allowed to remain in his original position at the

West Portal Station, payment of the sums sought would place him in a

far better position than he would have been absent the discrimination.

See Bernhardt v. United States Postal Service, EEOC Request No. 05A10285

(February 1, 2002); Sansosti v. United States Postal Service, EEOC

Petition No. 04990004 (June 17, 1999); Alford v. United States Postal

Service, EEOC Request No. 05901179 (December 31, 1990). As such, such

an award of �out-of-schedule pay� would be tantamount to an award of

punitive damages. See Thompson v. United States Postal Service, EEOC

Request No. 05880335 (October 6, 1988). Accordingly, we find that the

agency has complied with our previous Order with respect to Petitioner 1.

Petitioner 2's Reinstatement and Back Pay

The record indicates that some time in 1995, Petitioner 2 left her

position with the agency and began collecting Office of Worker's

Compensation Program (OWCP) benefits. On August 28, 2001, Petitioner 2

was employed as a Registration Clerk for the Department of Motor Vehicles.

There is no EEO claim or finding that Petitioner 2's departure from the

agency in 1995 was due to discrimination.

Petitioner 2 argues that she is entitled to be placed back into a position

making the same salary that she had made prior to leaving in 1995.

In addition, it appears that Petitioner 2 contends that she is entitled

to back pay equal to the difference in pay between her former salary

with the agency and her OWCP benefits. In addition, Petitioner 2 argues

that she is entitled to the difference between her former salary with

the agency and the salary she earns with the Department of Motor Vehicles.

The Commission finds that Petitioner 2 is not entitled to reinstatement

or back pay since she voluntarily left the agency. We note that the

record is devoid of evidence which supports the finding that the agency's

failure to reasonably accommodate Petitioner 2 caused her departure.

Moreover, we note that Petitioner 2 has not filed an EEO claim alleging

constructive discharge.

Accordingly, with respect to Petitioner 2, we find that the evidence of

record shows that the agency has fully complied with our previous Order.

Therefore, based on a review of the record, and for the foregoing reasons,

the Commission DENIES Petitioners' petition for enforcement and finds

that the agency has fully complied with our previous decision in Wayne and

Maria Angin v. United States Postal Service, EEOC Appeal Nos. 01980302 &

01982262 (August 22, 2001).

PETITIONER'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 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:

______________________________

Carlton M. Hadden, Director

Office of Federal Operations

__________________

Date