0420170016
09-05-2017
Christeen H.,1 Petitioner, v. Megan J. Brennan, Postmaster General, United States Postal Service (Great Lakes Area), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Christeen H.,1
Petitioner,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Great Lakes Area),
Agency.
Petition No. 0420170016
Appeal No. 0720140025
Agency No. 1Y-520-0096-10
DECISION ON A PETITION FOR ENFORCEMENT
On April 10, 2017, the Equal Employment Opportunity Commission (EEOC or Commission) docketed a petition for enforcement to examine the enforcement of an Order set forth in EEOC Appeal No. 0720140025 (September 28, 2015). The Commission accepts this petition for enforcement pursuant to 29 C.F.R. � 1614.503. Petitioner alleged that the Agency failed to fully comply with the Commission's orders.
BACKGROUND
At the time of events giving rise to this complaint, Petitioner worked as a Mail Processing Clerk at the Agency's JT Weeker ISC Express Center facility in Chicago, Illinois.
Petitioner filed a complaint in which she alleged that the Agency discriminated against her on the basis of disability, in violation of Section 501 of the Rehabilitation Act of 1973, when on July 15, 2010, she was issued notice of her removal from her position.
The matter went to a hearing before an EEOC Administrative Judge (AJ), who concluded that Petitioner was subjected to discrimination as alleged. The AJ's determination was upheld on by the Commission in EEOC Appeal No. 0720140025. To remedy Petitioner for the discrimination, the decision ordered the following:
1. The Agency shall offer Complainant reinstatement to her former position, or a substantially equivalent one, at a mutually agreeable location within 30 calendar days of the date this decision is final. The offer shall be sent to Complainant by certified mail with a return receipt. Complainant will have 30 calendar days from receipt to respond to the Agency's offer. Complainant shall be provided with a three-month training/refresher period upon her return to employment.
2. The Agency shall remove all references to the Notice of Removal from Complainant's employment records.
3. The Agency shall determine the appropriate amount of back pay, with interest, and other benefits due Complainant from the effective date of her removal to the date she begins her reinstatement or the date Complainant rejects the Agency's offer for reinstatement, pursuant to 29 C.F.R. � 1614.501, no later than sixty (60) calendar days after the date this decision becomes final. The Complainant 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 the Complainant for the undisputed amount within sixty (60) calendar days of the date the Agency determines the amount it believes to be due. The Complainant 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.
4. The Agency shall provide Complainant with her award of $7,500 in compensatory damages within 60 days of the date this decision becomes final.
5. The Agency is directed to conduct EEO training for the Plant Manager and the Supervisor who was found to have violated the Rehabilitation Act.
The matter was assigned to a Compliance Officer and docketed as Compliance No. 0620160017 on October 7, 2015. On April 10, 2017, the Commission docketed the Petitioner's petition for enforcement at issue. Petitioner contends that the Agency failed to comply with the Commission's orders.
We note that the Agency provided several documents to the Compliance Officer documenting its compliance with the Commission's decision. Upon review of the documentation, the Agency provided proof that it has paid Petitioner $7,500 in compensatory damages. The Agency also indicated that the Plant Manager and the Supervisor had retired from the Agency effective December 2013 and December 2015. As such, we find the Agency cannot comply with the order to provide training to these management officials.
Therefore, we turn to the orders pertaining to reinstatement, the removal of the Notice of Removal from Petitioner's records, and the calculation of back pay.
Notice of Removal
The Agency provided a sworn statement from the Labor Relations Specialist stating that she learned on May 27, 2016, that there were copies of the Notice of Removal still in Petitioner's records. She averred that she had them all removed and any reference to the Notice of Removal has now been expunged from Petitioner's employment records. Upon review, we find that the Agency has provided evidence that Petitioner's Notice of Removal has been expunged from her personnel records.
Reinstatement
Subsequent to the decision in Appeal No. 0720140025, the Agency offered Petitioner five positions as a Mail Processing Clerk on Tour 3 at three different facilities. Petitioner declined all the positions, noting they were all on Tour 3. Complainant indicated that these positions were in conflict with her medical restrictions that required her to work on Tour 2. By letter dated July 29, 2016, the Agency provided Petitioner another job offer. Petitioner noted that she received the offer on August 23, 2016, and accepted it September 22, 2016.
However, in its compliance report the Agency established that Petitioner indicated that she was accepting the position subject to her medical restrictions and had included documentation from her physician requesting that she only work during the day and a less than full-time work schedule as she "transitions back into the workplace." The record shows that Petitioner's accommodation request was referred to the Houston District Reasonable Accommodation Committee (DRAC). In October and December 2016, the DRAC sent Petitioner a request for medical information. In February 2017, the DRAC again wrote Petitioner and indicated that a review of the medical information she provided was incomplete and she was asked to provide additional specified information from her physician.
The compliance record from the Agency does not indicate what occurred after the February 2017 communication from the DRAC. Therefore, we cannot discern whether or not the Petitioner was actually placed in a reinstatement position. We need this information in order to determine if the Agency has complied with the Commission's orders. As such, we order that the Agency provide such documentation to the Commission.
Backpay
Finally, the Agency provided documentation showing that it provided back pay to Petitioner in the amount of $ 118,548.99 by check dated February 24, 2016. The Agency noted that the check had been cleared on March 9, 2016. In addition, the Agency paid Petitioner interest on the back pay by check dated April 4, 2016, in the amount of $ 22,831.08, which was cleared by the Agency's bank on April 28, 2016. As such, the Agency argued that it has complied with the Commission's orders. It appears that the Agency calculated back pay based on the dates August 21, 2010 to April 23, 2014.
The Agency ended its calculation of backpay on April 23, 2014, because on that date it mailed Petitioner an offer of employment as interim relief during the pendency of its appeal from the AJ's decision pursuant to 29 C.F.R. � 1614.505. In EEOC Appeal No. 0720140025, Petitioner argued she never received the offer. However, the decision concluded that Petitioner changed addresses but did not inform the Agency of her current address as required.
As noted above, the decision in EEOC Appeal No. 0720140025 directed the Agency to calculate back pay from "the effective date of her removal to the date she begins her reinstatement or the date [Petitioner] rejects the Agency's offer for reinstatement." Furthermore, as stated above, the Agency did not challenge the Commission's order. Upon review, the Agency's back pay calculation was based on the dates August 21, 2010 to April 23, 2014. The Agency has used the date it offered an interim relief position to end Petitioner's entitlement to back pay. We find that this action is inconsistent with the Commission's order as we intended the backpay period to extend to Petitioner's reinstatement following the issuance of the order. As stated in the order, the backpay calculation ends with the date Petitioner begins her reinstatement or rejects the Agency's offer. As such, we conclude that the Agency has not complied with the Commission's order regarding back pay.
Accordingly, the Commission GRANTS the Petition and finds that the Agency has not yet established that it has fully complied with the Commission's orders in EEOC Appeal No. 0720140025.
ORDER (D0617)
The Agency is ordered to take the following remedial action:
I. The Agency shall provide documentation regarding the status of Petitioner's reinstatement.
II. No later than sixty (60) calendar days after this decision is issued, the Agency shall determine the appropriate amount of back pay, with interest and other benefits due the Petitioner, pursuant to 29 C.F.R. � 1614.501. The backpay period shall begin on the effective date of Petitioner's removal and end on the date her reinstatement becomes effective, or after September 22, 2016, is shown to have affirmatively refused reinstatement. The Agency shall offset the backpay currently due by the amount it has already paid Petitioner in checks dated February 24, 2016 and April 4, 2016. The Petitioner 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 the Petitioner for the undisputed amount within sixty (60) calendar days of the date the Agency determines the amount it believes to be due. The Petitioner 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."
The Agency is further directed to submit a report of compliance in digital format as provided in the statement entitled "Implementation of the Commission's Decision." The report shall be submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. � 1614.403(g). Further, the report must include supporting documentation of the Agency's calculation of back pay and other benefits due Petitioner, including evidence that the corrective action has been implemented.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0617)
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 in the digital format required by the Commission, and submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. � 1614.403(g). The Agency's report must contain supporting documentation, and the Agency must send a copy of all submissions to the Petitioner. If the Agency does not comply with the Commission's order, the Petitioner may petition the Commission for enforcement of the order. 29 C.F.R. � 1614.503(a). The Petitioner 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 Petitioner 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 Petitioner 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.
PETITIONER'S RIGHT TO FILE A CIVIL ACTION (R0610)
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 (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Petitioner's Right to File a Civil Action for the specific time limits).
FOR THE COMMISSION:
______________________________ Carlton M. Hadden's signature
Carlton M. Hadden, Director
Office of Federal Operations
September 5, 2017
__________________
Date
1 This case has been randomly assigned a pseudonym which will replace Petitioner's name when the decision is published to non-parties and the Commission's website.
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