0120111027
08-31-2012
Elizabeth A. Yuskiw, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Capital Metro Area), Agency.
Elizabeth A. Yuskiw,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Capital Metro Area),
Agency.
Appeal No. 0120111027
Hearing No. 430-2008-00002X
Agency No. 4K-230-0092-07
DECISION
On October 7, 2010, Complainant filed an appeal requesting enforcement of the Agency's August 11, 2010, final order concerning her equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq. The Commission deems the appeal timely and accepts it pursuant to 29 C.F.R. � 1614.405(a) and 29 C.F.R. � 1614.504. For the following reasons, the Commission REMANDS this matter to the Agency.
ISSUES PRESENTED
The issue presented is whether the Agency has complied with the orders adopted from the AJ's decision finding discrimination.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Customer Services Supervisor, EAS-17, at the Agency's London Bridge station in Virginia Beach, Virginia. On May 30, 2007, Complainant filed an EEO complaint alleging that the Agency discriminated against her and subjected her to a hostile work environment on the basis of sex (female) when:
1. on February 5, 2007, she was removed from her permanent supervisory assignment at the London Bridge Station; and
2. on February 22, 2007, she was verbally informed that she would be required to take a relief supervisor position (official notification was issued on March 5, 2007, of the change in position to Customer Services Supervisor Relief) and she was not permitted to transfer to the station of her choice.
At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an EEOC Administrative Judge (AJ). Complainant timely requested a hearing. The AJ held a hearing on March 31, 2009, April 1, 2009, and June 16, 2009, and issued a decision on June 28, 2010.
In her decision, the AJ found that Complainant had not established that the Agency had discriminated against her with respect to issue #1, her removal from her permanent supervisory position at London Bridge Station. The AJ did find that Complainant had established that the Agency discrimination against her based on her sex when she was involuntarily reassigned to a relief supervisor position, and when the Agency did not take her claims of a hostile work environment seriously, and did not investigate her allegations of a conflict with a co-worker. The AJ also found that Complainant had established a prima facie case of a hostile work environment, as created by a co-worker, and that the Agency had failed to take prompt, corrective action. She found that there was a basis for imputing liability to the Agency as well.
The AJ ordered the following remedies:
1. The Agency shall re-instate Complainant to a position as a Customer Service Supervisor in the Chesapeake or Norfolk, Virginia area, effective March 2007;
2. The Agency shall pay Complainant pecuniary damages in the following amounts: approximately $154,564.89 for back pay, interest, and Pay for Performance increases for Fiscal Years 2008, 2009, and 2010; $3,728 for TSP withdrawal penalty; $2,045 for medical visits; and $7,337.28 for medication;
3. The Agency shall pay Complainant non-pecuniary damages in the amount of $75,000;
4. The Agency shall restore Complainant 148.9 hours of sick leave and 152 hours of annual leave and grant her accrued annual and sick leave from March 2007 through the date of her reinstatement;
5. The Agency shall reimburse Complainant reasonable costs of $570.12 for mileage;
6. The Agency shall pay Complainant's attorney reasonable attorney's fees and costs in the amount of $28,069.96;
7. The Agency shall take corrective, curative, or preventative action to ensure that similar violations of the law will not recur. See 29 C.F.R. � 1614.501(a)(2);
8. The Agency shall provide anti-discrimination and anti-harassment training for the Virginia Beach Postmaster; and
9. The Agency shall post a notice that the Agency has been found to have discriminated against a current employee at the London Bridge station in Virginia Beach, Virginia.
The Agency subsequently issued a final action on August 11, 2010, adopting the AJ's decision, including the findings that Complainant proved that the Agency subjected her to discrimination as alleged and including the remedies as ordered by the AJ. Complainant filed the instant appeal on October 7, 2010, in which she petitioned the Commission to enforce the AJ's decision. Complainant had notified the Agency in a letter dated August 31, 2010, that she believed that the Agency was not in compliance with the Order of the AJ. The Agency had not yet responded to Complainant at the time of her appeal.
CONTENTIONS ON APPEAL
Complainant contends that the Agency had not implemented the remedies ordered by the AJ and appealed to the Commission to enforce the AJ's Order. In her initial appeal, Complainant stated that the only part of the AJ's Order with which the Agency had complied at that time was the reinstatement of Complainant. In a letter dated February 23, 2011, Complainant stated that the Agency had failed to pay: the $75,000 in compensatory damages; the correct amount of back pay and interest; $3,728 for TSP withdrawal penalties; $2,045 for medical visits; $7,337.28 for medication; and $570.12 for mileage. In a letter dated June 7, 2011, Complainant stated the Agency had still failed to provide reimbursement for the increased tax liability, a part of her make-whole relief.
The Agency did not submit any statement in response to Complainant's appeal, and did not submit any evidence that it had complied with the AJ's Order.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. � 1614.504(a) provides that a final agency action that has not been the subject of an appeal or a civil action shall be binding on the agency. The regulation provides further that if a complainant believes that the agency has not complied with the terms of the final decision, that the complainant shall notify the agency EEO Director, in writing, within thirty days of the date on which the complainant knew or should have known of the noncompliance. Id. The agency shall resolve the matter and provide a written response to complainant. 29 C.F.R. � 1614.504(b). If complainant does not receive a response or is not satisfied with said response, the complainant may appeal to the Commission for a determination as to whether the agency is in compliance. Id.
The Agency fully adopted the Decision and Order of the AJ in its August 11, 2010, final action. Complainant first notified the Agency on August 31, 2010, that she did not believe the Agency had complied with the Orders of the AJ. Specifically, the Complainant claimed that the Agency had failed to perform any of the actions ordered with the exception of the reinstatement to her position. When Complainant did not receive a response from the Agency within 35 days from her notification of noncompliance, she filed this appeal with the Commission on October 7, 2010, pursuant to 29 C.F.R. � 1614.504(b).
The Agency did not submit any evidence in response to Complainant's appeal from which we may determine that it has complied with the Order of the AJ and its own final action. It did not submit any statement or brief in which it made representations as to its efforts to comply with the AJ's Order. Therefore, we find that this matter should be remanded to the Agency in order for it to take actions which would bring it in compliance with its own final action.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, and given the lack of evidence regarding compliance with all elements of the AJ's order in this case, we REMAND this matter to the Agency for further processing in accordance with this decision and the ORDER below.
ORDER
To the extent the Agency has not already complied with the AJ's Order, the Agency shall take the following actions within sixty (60) days of the date this decision becomes final:
1. The Agency shall re-instate Complainant to a position as a Customer Service Supervisor in the Chesapeake or Norfolk, Virginia area, effective March 2007;
2. The Agency shall pay Complainant pecuniary damages in the following amounts: approximately $154,564.89 for back pay, interest, and Pay for Performance increases for Fiscal Years 2008, 2009, and 2010; $3,728 for TSP withdrawal penalty; $2,045 for medical visits; and $7,337.28 for medication;
3. The Agency shall pay Complainant non-pecuniary damages in the amount of $75,000;
4. The Agency shall restore Complainant 148.9 hours of sick leave and 152 hours of annual leave and grant her accrued annual and sick leave from March 2007 through the date of her reinstatement;
5. The Agency shall reimburse Complainant reasonable costs of $570.12 for mileage;
6. The Agency shall pay Complainant's attorney reasonable attorney's fees and costs in the amount of $28,069.96;
7. The Agency shall take corrective, curative, or preventative action to ensure that similar violations of the law will not recur. See 29 C.F.R. � 1614.501(a)(2);
8. The Agency shall provide anti-discrimination and anti-harassment training for the Virginia Beach Postmaster; and
9. The Agency shall post a notice that the Agency has been found to have discriminated against a current employee at the London Bridge station in Virginia Beach, Virginia.
The Agency is further directed to submit a report of compliance, as provided in the "Implementation of the Commission's Decision." The report shall include all supporting documentation verifying that the corrective action has been implemented.
POSTING ORDER (G0610)
The Agency is ordered to post at its London Bridge station in Virginia Beach, Virginia 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 (H0610)
If Complainant has been represented by an attorney (as defined by 29 C.F.R. � 1614.501(e)(1)(iii)), 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 (K0610)
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 77960, Washington, DC 20013. 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 (M0610)
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), at 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 (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 (Z0610)
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
August 31, 2012
Date
2
0120111027
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120111027