0720080026
04-30-2009
David L. Reynolds, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Southwest Area), Agency.
David L. Reynolds,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Southwest Area),
Agency.
Appeal No. 0720080026
Agency No. 1F-927-0061-02
Hearing No. 340-2003-03463X
DISMISSAL OF APPEAL
By Notice of Appeal postmarked January 2, 2008, the agency filed an appeal
with this Commission from its December 10, 2007 final action concerning
complainant's EEO complaint of unlawful employment discrimination in
violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation
Act), as amended, 29 U.S.C. � 791 et seq. In its final order, the
agency implemented an Order of the Administrative Judge dated September
30, 2007, with the exception of the attorney's fee order. The agency
indicated in the final order that it would file an appeal with this
Commission concerning the attorney's fee portion. Pursuant to 29 C.F.R. �
1614.110(a), the agency was required to file its appeal "simultaneously"
with the issuance of the final order. The agency did not, however, file
an appeal with this Commission until January 2, 2008, which was 23 days
after it had issued the final order. The agency did not explain why the
appeal was untimely, and has not otherwise offered adequate justification
for an extension of the applicable time limit for filing the appeal.
Accordingly, the agency's January 2, 2008 appeal is hereby dismissed.
See 29 C.F.R. � 1614.403(c).1 The agency is reminded that it must fully
comply with the Administrative Judge's Order issued September 30, 2007,
which subsequently became the agency's final action, as re-posted below.
ORDER
Within thirty (30) days after this decision becomes final, and to the
extent that it has not already done so, the agency shall comply with
the following provisions:
1. Pay complainant back-pay for the period since he was placed on
AWOL, less any amounts actually earned;
2. Pay interest on back pay, and provide all other benefits,
including retroactive seniority, under pertinent Office of Personnel
Management Regulations and 29 C.F.R. � 1614.501;
3. Provide training to its managers and supervisors, especially
those named herein, with regard to the Title Vll's prohibition against
disability discrimination and retaliation, within six [6] months of
final decision;
4. Post a Notice of this finding of discrimination, pursuant to
29 CF.R. � 1614, stating the ruling after hearing and that it is being
posted pursuant to this decision, in a prominent location where employee
notices are typically posted at Complainant's last place of employment,
continuously for a period of six [6] months starting with Final Decision;
5. Pay to complainant the sum of $75,000.00 as non-pecuniary
compensatory damages;
6. Pay complainant an amount to compensate him for the tax
consequences of a lump-sum wage payment, according to proof to be provided
by complainant;
7. Remove all references to the LWOP and Notice of Removal from
his OPF, his agency files and all supervisory files, within thirty [30]
days of Final Decision, and make all future employment decisions without
reference to such events;
8. Reinstate Complainant to the same position in the same job
series and grade he previously held, in a location within 30 miles of
his residence in Orange County;
9. Pay Complainant front pay until the date of reinstatement for
up to three [3] years;
10. Pay Attorneys' fees and costs in the amounts requested, [as
detailed in the AJ's Order].
POSTING ORDER (G0900)
The agency is ordered to post at its Santa Ana District, California 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 (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.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
The Commission may, in its discretion, reconsider the decision in this
case if the complainant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. The appellate decision involved a clearly erroneous interpretation
of material fact or law; or
2. The appellate decision will have a substantial impact on the
policies, practices, or operations of the agency.
Requests to reconsider, with supporting statement or brief, must be filed
with the Office of Federal Operations (OFO) within thirty (30) calendar
days of receipt of this decision or within twenty (20) calendar days of
receipt of another party's timely request for reconsideration. See 29
C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for
29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999). All requests
and arguments must be submitted to the Director, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 77960,
Washington, DC 20013. In the absence of a legible postmark, the request
to reconsider shall be deemed timely filed if it is received by mail
within five days of the expiration of the applicable filing period.
See 29 C.F.R. � 1614.604. The request or opposition must also include
proof of service on the other party.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely, unless extenuating circumstances
prevented the timely filing of the request. Any supporting documentation
must be submitted with your request for reconsideration. The Commission
will consider requests for reconsideration filed after the deadline only
in very limited circumstances. See 29 C.F.R. � 1614.604(c).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S0408)
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. If you
file a request to reconsider and also file a civil action, filing a civil
action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z1008)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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 with
the Court 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
April 30, 2009
__________________
Date
1 In response to the agency's appeal, complainant filed a document
entitled "Motion to Strike Agency's Appeal Brief and Motion for
Enforcement" with this Commission on January 18, 2008, as well as several
subsequent documents. We cannot construe the January 18, 2008 filing
to be an appeal of the December 10, 2007 final order, since it was not
filed within 30 days after complainant states he received the final order,
on December 12, 2007.
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0720080026
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013