04980024
02-19-1999
Clarence Hagins, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Clarence Hagins v. United States Postal Service
04980024
February 19, 1999
Clarence Hagins, )
Appellant, )
) Petition No. 04980024
v. ) Appeal No. 01956613
) Agency No. 4F940100994
)
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
___________________________________)
DECISION ON PETITION FOR ENFORCEMENT
The Equal Employment Opportunity Commission (EEOC) has docketed a
petition for enforcement from Clarence Hagins (hereinafter referred to as
petitioner) requesting enforcement of the Commission's Order in Hagins
v. United States Postal Service, EEOC Appeal No. 01956613 (January 23,
1998). This petition is accepted by the Commission in accordance with
the provisions of EEOC Regulation 29 C.F.R. �1614.503.
ISSUE PRESENTED
The issue presented is whether the agency has complied with the
Commission's January 23, 1998 Order.
BACKGROUND
Appellant--a PS-4 Mail Processor--filed an EEO complaint alleging
that the agency discriminated against him on the bases of his race
(black) and/or physical disability (back injury) when it failed to
select him for the position of PS-6 Mail Processing Equipment (MPE)
Maintenance Mechanic. In Hagins v. United States Postal Service, EEOC
Appeal No. 01956613 (January 23, 1998), the Commission found that the
agency discriminated against appellant on the basis of his disability.
Specifically, the Commission found that the agency failed to determine
whether appellant would have been able to perform the essential functions
of the MPE 6 Mechanic position with or without reasonable accommodation.
The Commission further found that because appellant had presented
sufficient evidence to show that he was able to perform the duties of
the MPE 6 Mechanic position, he therefore was a qualified individual
with a disability and was entitled to placement therein.
In relevant part, the agency was ordered to take the following actions:
1) Place appellant in an MPE 7 Mechanic position;<1> 2) award back
pay with interest and any other benefits due; and, 3) pay reasonable
attorney's fees.
In May 1998, appellant's attorney filed a petition for
enforcement. Therein, the attorney asserted that "[t]he only portion
of the Commission's Order in which there has been compliance concerns
attorney's fees....With respect to all other portions of the Commission's
Order, there has been no compliance." Appellant's attorney also requested
attorney's fees incurred as a result of the petition for enforcement.
In its June 5, 1998 letter, the agency advised the Commission's Compliance
Officer that it was awaiting receipt of reports for 1994 and 1995
to determine appellant's back pay adjustment for those time periods.
The agency also advised that:
The North Bay P & DC will not be placing [appellant] in an MPE position
as he was terminated effective December 29, 1997. We have no intentions
(sic) of bringing [appellant] back to work for the Postal Service.
He was removed for just cause. He was issued a Notice of Intent in
October 1997 and a Notice of Removal dated November 28, 1997. The action
to remove [appellant] from the Postal Service was prior to receiving the
decision regarding the MPE position and has absolutely no bearing on it.
By letter dated June 8, 1998, the agency informed the Compliance Officer
that it had received the reports for 1994 and 1995; that the appropriate
back pay adjustments had been forwarded to its Processing Branch; and,
that "[t]his finalizes all necessary adjustments regarding [appellant's]
pay."
ANALYSIS AND FINDING
The issue presented is whether the agency has complied with the
Commission's January 23, 1998 Order.
MPE 7 Mechanic Position
The agency's position is that it need not place appellant in the MPE
7 Mechanic position because appellant was terminated from his position
for cause, effective December 29, 1997.
First, if appellant has appealed his removal, e.g., through the grievance
process or the Merit Systems Protection Board, the removal will not
be final until he exhausts the appeals process. Further, if appellant
prevails in the appeals process and his removal is overturned, he would
be entitled to placement in the MPE 7 Mechanic position pursuant to the
Commission's January 23, 1998 Order. In addition, even if appellant's
removal is final because he did not appeal the removal action, the agency
has failed to provide the Commission with any documents relating thereto,
e.g., the proposed removal, the notice of removal, and so on.
On remand, the agency must supplement the record with documents pertinent
to appellant's removal as well as documents related to any appeal,
including a grievance or an EEO complaint, that appellant has filed
in this regard. If appellant has appealed his removal, the agency is
advised that the portion of the Commission's Order regarding appellant's
placement in the MPE 7 Mechanic position should be held in abeyance
pending the outcome of his appeal. If appellant prevails in the appeals
process and his removal is overturned, then the agency shall place him
in the MPE 7 Mechanic position.
Back Pay Award
The June 8, 1998 letter indicates that the agency had obtained the
missing reports for 1994 and 1995 and had forwarded appellant's back pay
adjustment to the Processing Branch. There is no evidence in the record,
however, that the agency has issued appellant a check for the back pay
award.
On remand, the agency shall supplement the record with a copy of the
check issued to appellant as well as with its calculations of the amount
of the back pay award.
CONCLUSION
Based upon a review of the record and the submissions of the parties,
and for the foregoing reasons, the Commission grants the petition for
enforcement. The Commission finds that the agency has not yet complied
with the Commission's Order and orders the agency to comply as set forth
in the decision herein and the Order below.
Order
The agency is ORDERED to take the following actions:
1) The agency shall supplement the record with documents related
to appellant's termination, e.g., notice of intent, removal notice,
and so forth, as well as documents related to any appeal, including a
grievance or an EEO complaint, appellant has filed regarding his removal.
If appellant has filed an appeal regarding his removal, the agency
shall hold in abeyance that part of the Commission's Order directing
appellant's placement in the MPE 7 Mechanic position until appellant
exhausts the appeals process. If appellant prevails in his appeal of
the removal and his removal is overturned, the agency shall place him
in the MPE 7 Mechanic position pursuant to the Commission's January 23,
1998 Order. The agency shall notify the Compliance Officer when appellant
has exhausted the appeals process and there is a final decision regarding
his removal.
2) The agency shall supplement the record with a copy of the check issued
to appellant for his back pay award as well as its calculations of the
amount of the award.
3) The agency shall notify appellant's attorney of the procedures for
filing with the agency a petition for attorney's fees and costs related
to the petition for enforcement.
The agency must complete the above actions within 60 calendar days of
the date on which this decision becomes final. The agency shall submit
its compliance report to the Compliance Officer, as referenced below.
The agency must include in the compliance report documents related to
appellant's removal and any appeal, grievance or EEO complaint regarding
the removal, a copy of the check issued to appellant for his back pay
award, and a copy of the letter notifying appellant's attorney of the
procedure for filing a fee petition. If appellant has filed an appeal
regarding his removal, the agency shall notify the Compliance Officer
when he has exhausted the appeals process and there is a final decision
on the removal action. The agency also shall provide to appellant and
his attorney copies of the documents referred to in #1 and #2 above.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0595)
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 appellant. If the agency does not comply with the Commission's
order, the appellant may petition the Commission for enforcement of
the order. 29 C.F.R. �1614.503 (a). The appellant 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. �� 1614.408, 1614.409, and 1614.503 (g). Alternatively,
the appellant 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. �� 1614.408 and 1614.409. 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) (Supp. V 1993). If the
appellant files a civil action, the administrative processing of the
complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. �1614.410.
STATEMENT OF PETITIONER'S RIGHTS
RIGHT TO FILE A CIVIL ACTION (R0993)
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. It is the position of the Commission that 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. You should be aware, however, that courts in some
jurisdictions have interpreted the Civil Rights Act of 1991 in a manner
suggesting that a civil action must be filed WITHIN THIRTY (30) CALENDAR
DAYS from the date that you receive this decision. To ensure that your
civil action is considered timely, you are advised to file it WITHIN
THIRTY (30) CALENDAR DAYS from the date that you receive this decision
or to consult an attorney concerning the applicable time period in the
jurisdiction in which your action would be filed. 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 (Z1092)
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:
Feb 19, 1999
Date Frances M. Hart
Executive Officer
Executive Secretariat
1 In November 1993, all existing MPE 6 Mechanic positions were converted
to MPE 7 Mechanic positions.