05980518
02-19-1999
D. Robert Smeltzer, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
D. Robert Smeltzer v. United States Postal Service
05980518
February 19, 1999
D. Robert Smeltzer, )
Appellant, )
)
v. ) Request No. 05980518
) Appeal No. 01960418
William J. Henderson, ) Agency Nos. 4-D-2658-93
Postmaster General, ) 4-D-280-1013-94
United States Postal Service, ) Hearing Nos. 140-94-8108X
Agency. ) 140-94-9109X
)
)
DENIAL OF REQUEST TO RECONSIDER
On March 30, 1998, the United States Postal Service (hereinafter referred
to as the agency) timely initiated a request to the Equal Employment
Opportunity Commission (Commission) to reconsider the decision in
D. Robert Smeltzer v. Marvin T. Runyon, Jr., Postmaster General,
United States Postal Service (Allegheny/Mid-Atlantic Area), EEOC Appeal
No. 01960418 (February 20, 1998) received on February 27, 1998.<1> EEOC
regulations provide that the Commission may, in its discretion, reconsider
any previous decision. 29 C.F.R. �1614.407(a). The party requesting
reconsideration must submit written argument or evidence which tends to
establish one or more of the following three criteria: new and material
evidence is available that was not readily available when the previous
decision was issued, 29 C.F.R. �1614.407(c)(1); the previous decision
involved an erroneous interpretation of law, regulation, or material fact,
or a misapplication of established policy, 29 C.F.R. �1614.407(c)(2);
and the decision is of such exceptional nature as to have substantial
precedential implications, 29 C.F.R. �1614.407(c)(3).
After a review of the agency's request for reconsideration, the
appellant's response thereto, the previous decision, and the entire
record, the Commission finds that the agency's request fails to meet
the criteria of 29 C.F.R. �1614.407(c), and it is the decision of the
Commission to deny the request. The decision in EEOC Appeal No. 01960418
(February 20, 1998) remains the Commission's final decision. The agency is
directed to comply with the Order of the Commission set forth below. There
is no further right of administrative appeal from a decision of the
Commission on a request to reconsider.
ORDER
The agency is ORDERED to take the following remedial actions:
The agency shall determine, no later than forty-five (45) calendar days
after the date this decision becomes final, the kind, number, and duration
of 204-B acting supervisor assignments appellant would have received if
the RO had not denied him the opportunity to receive these assignments
on June 24, 1993.
The agency shall notify appellant of the agency's determination, required
by paragraph 1 of this Order, no later than sixty (60) calendar days
after the date this decision becomes final. The agency shall explain the
factual bases for the agency's determinations and describe the agency's
plan to provide appellant with substantially equivalent 204-B acting
supervisor assignments and training within the one-year period following
the date this decision becomes final. These assignments shall be granted
in addition to the number of acting supervisory assignments appellant
would otherwise receive in the normal course of business.<2> The agency
shall provide appellant with the 204-B acting supervisor assignments and
training described in the agency's plan. In the same notice, the agency
shall inform appellant that he has a right under 29 C.F.R. �1614.503(a)
to petition the Commission for enforcement of this Order if he does not
agree with the agency's determinations or if the agency does not provide
the 204-B acting supervisor assignments and training described in the
agency's remedy plan within the one-year time period.
In the event that there are insufficient opportunities available by
which to afford appellant all of the above mentioned acting supervisory
opportunities within the one year time period specified, then appellant
shall decide whether to permit the assignments to extend beyond the
one year time period or accept a backpay award for the difference in pay
afforded for the remaining assignments. If appellant decides to accept
a backpay award, then the agency shall determine the appropriate amount
of backpay, interest, and other benefits due appellant, pursuant to 29
C.F.R. �1614.501, no later than sixty (60) calendar days after the date
appellant chooses this option. Appellant shall cooperate in the agency's
efforts to compute the amount of backpay and benefits due, and shall
provide all relevant information requested by the agency. If there
is a dispute regarding the exact amount of backpay and/or benefits,
the agency shall issue a check to appellant for the undisputed amount
within sixty (60) calendar days of the date the agency determines the
amount it believes to be due. Appellant 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 shall post the attached Notice in accordance with the directive
below.
The agency shall afford EEO sensitivity training to the responsible
official.
The agency is further directed to submit a report of compliance, as
provided in the statement entitled "Implementation of the Commission's
Decision." The report shall include supporting documentation of the
agency's calculation of backpay and other benefits due appellant,
including evidence that the corrective action has been implemented.
POSTING ORDER (G1092)
The agency is ORDERED to post, in a conspicuous place at its Charlotte,
North Carolina facilities, copies of the attached notice. Copies of the
notice, after being signed by the agency's duly authorized representative,
shall be posted by the agency within thirty (30) calendar days of the
date this decision becomes final, and shall remain posted for sixty (60)
consecutive days, in conspicuous places, including all places where
notices to employees are customarily posted. The agency shall take
reasonable steps to ensure that said notices are not altered, defaced,
or covered by any other material. The original signed notice is to be
submitted to the Compliance Officer at the address cited in the paragraph
entitled "Implementation of the Commission's Decision," within ten (10)
calendar days of the expiration of the posting period.
ATTORNEY'S FEES (H1092)
Since appellant has been represented by an attorney (as defined
by 29 C.F.R. �1614.501 (e)(1)(iii)), he 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 (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.
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 The last day of the 30-day filing period fell on Sunday, March 29,
1998. Therefore, the agency's Monday, March 30, 1998 filing was
timely. See 29 C.F.R. �1614.604(d).
2 Revisions have been made and language has been added to items 2 and
3 to clarify the previous decision's ordered relief.