05A20939
08-27-2002
Charles P. Allen, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Charles P. Allen v. United States Postal Service
05A20939
August 27, 2002
.
Charles P. Allen,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Request No. 05A20939
Appeal No. 01990101
Agency No. 1B065100694
Hearing No. 160-94-8650X
DECISION ON REQUEST FOR RECONSIDERATION
On July 11, 2002, Charles P. Allen (complainant) timely initiated a
request to the Equal Employment Opportunity Commission (the Commission
or EEOC) to reconsider the decision in Allen v. U.S. Postal Service,
EEOC Appeal No. 01990101 (May 22, 2002). EEOC regulations provide that
the Commissioners may, in their discretion, reconsider any previous
Commission decision. 29 C.F.R. � 1614.405(b). The party requesting
reconsideration must submit written argument or evidence which tends
to establish one or more of the following two criteria: the appellate
decision involved a clearly erroneous interpretation of material fact
or law; or the decision will have a substantial impact on the policies,
practices or operations of the agency. Id. Complainant's request does
not satisfy the established criteria and is denied. However, for the
reasons set forth herein, the Commission exercises its discretion to
reopen the previous decision on its own motion.
In 1997, the Commission rendered a decision reversing an agency finding
of no discrimination based on disability, affirming its finding of no
retaliation, and ordering appropriate remedies. Allen v. U.S. Postal
Service, EEOC Appeal No. 01954091 (March 27, 1997). The agency
subsequently initiated a request for reconsideration, which was denied;
however, the Commission reconsidered the previous decision on its own
motion. Allen v. U.S. Postal Service, EEOC Request No. 05970672 (June
11, 1998). The previous decision was modified, in that, the agency was
ordered to conduct a supplemental investigation regarding complainant's
entitlement to compensatory damages. Id. The order directed the agency,
in conducting a supplemental investigation, to allow complainant sixty
(60) days to submit evidence in support of his claim for compensatory
damages. Id.
In a final agency decision (FAD) dated September 9, 1998, the agency
concluded that complainant was not entitled to compensatory damages
because he failed to provide evidence to support such an entitlement
by the specified date. Complainant filed an appeal asserting that he,
through his representative, requested a 30-day extension to submit the
appropriate evidence but the agency failed to respond. Complainant failed
to submit evidence to support his entitlement to compensatory damages
on appeal. The agency stated that it did not receive the extension
request and, even if it had, complainant should have assumed that the
original deadline stood when he did not receive an agency response.
The Commission rendered a decision based on the record as it existed
awarding complainant $2000 in non-pecuniary damages and no pecuniary
damages. Complainant filed a request for reconsideration stating (1)
that we should not have addressed his entitlement to compensatory damages
but rather whether the agency should have allowed him additional time
to submit evidence to support such entitlement and (2) that we failed
to award attorney's fees.
As indicated above, complainant's request for reconsideration is denied.
However, the Commission exercises its discretion to reopen the previous
decision on its own motion to rectify an omission in the relief awarded.
To the extent that complainant is a prevailing party, he is entitled to
attorney's fees for work performed in connection with his complaint.
To be considered a prevailing party, complainant must have achieved
some of the benefits that he sought in bringing his appeal before
the Commission. Spriesterbach v. U.S. Postal Service, EEOC Request
No. 05990158 (November 27, 2001). In this case, the Commission ordered
the agency to award complainant non-pecuniary, compensatory damages.
The Commission therefore finds that complainant is a prevailing
party entitled to attorney's fees incurred to pursue his complaint.
Consequently, EEOC Appeal No. 01990101 is modified to reflect the
award of attorney's fees. The content of the previous order is also
reiterated below. There is no further right of administrative appeal
on this decision of the Commission on a Request to Reconsider.
ORDER
The agency is ORDERED to take the following remedial action within 60
calendar days of the date this decision becomes final, unless otherwise
noted:
(1) The agency shall pay complainant non-pecuniary compensatory damages
in the amount of $2000.
(2) The agency shall pay complainant's reasonable attorney's fees and
costs, if applicable, in accordance with the paragraph below entitled,
�Attorney Fees.�
(3) The agency is further directed to submit a report of compliance, as
provided in the paragraph entitled �Implementation of the Commission's
Decision.� The report shall include supporting documentation of the
agency's actions in compliance with this order.
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 (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
August 27, 2002
__________________
Date