0720090024
01-22-2010
Howard Gross, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Howard Gross,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0720090024
Hearing No. 531-2006-00104X
Agency No. 4K200002006
DISMISSAL OF APPEAL
Simultaneously with the issuance of its December 29, 2008 final
action, the agency filed an appeal with the Commission in which the
agency requests that the Commission affirm its rejection of an EEOC
Administrative Judge's (AJ) finding of reprisal discrimination in
violation of Title VII of the Civil Rights Act of 1964 (Title VII),
as amended, 42 U.S.C. �2000e et seq., and order for remedies. In his
complaint, complainant alleged that he was subjected to discrimination
on the basis in reprisal for prior EEO activity, when:
(1) On an unspecified date complainant became aware that
management was keeping a notebook concerning him;
(2) On September 3, 2005, complainant was not permitted to work his
assigned route;
(3) On September 7, 2005, complainant was issued a
fourteen-day suspension; and
(4) On September 16, 2005, complainant received a notice of
removal which was effective on February 21, 2006.
The AJ conducted a hearing on September 24 and 25, 2007. On September
26, 2007, the AJ heard closing arguments from the parties, after which
the AJ announced his decision regarding liability. The AJ found that
complainant was discriminated against on the basis of reprisal when
he was removed from his position, as alleged in the complaint.1 The
record shows the AJ's decision was provided to the parties in writing by
facsimile transmission on January 25, 2008. The AJ's decision notified
the parties that he would thereafter conduct a conference call concerning
damages. A hearing concerning damages was held on January 29, 2008.
Thereafter, the AJ took under advisement submissions from the parties
pertaining to damages and attorney's fees. On November 10, 2008,2 the AJ
issued an "Order Entering Judgment" in which he referred to his earlier
decision regarding liability and ordered the agency to provide relief
including reinstatement, compensatory damages, and attorney's fees.
The AJ's Order stated as follows:
For the reasons set forth in the Decision1 previously issued,
as finalized, on November 10, 2008, and in the Awards of Damages
and Attorneys' Fees and Costs (attached hereto), judgment in the
above-captioned matter is hereby entered in favor of Complainant.
1 On September 26, 2007, the Commission announced from the
Bench a Finding of Liability against the Agency in Complainant's
removal from his position. At that time (at p. 38, lines 1-12),
the Commission stated that Complainant be reinstated in accordance
with 29 C.F.R. 1614.505. In accordance with this Order Entering
Judgment of this date, his reinstatement is to be effected at
once in accordance with that cited regulation.
The attachments that accompanied the AJ's Order directed the agency to
pay to complainant compensatory damages in the amount of $42,000.00 for
non-pecuniary damages; $11,636.79 for pecuniary damages; attorney's fees
in the amount of $102,926.60; and costs in the amount of $2,727.27.
On December 29, 2008, the agency issued its Notice of Final Action.
In its Notice, the agency states as follows, in pertinent part:
Although the agency cannot determine from the record that the
Administrative Judge specifically awarded retroactive restoration
or back pay, the agency herein provides notice to [complainant]
and the Commission that it will temporarily and conditionally
restore [complainant] to duty status pending the outcome of
the appeal. Proof of this restoration will be filed with the
Office of Federal Operations when the brief in support of the
appeal is filed. In addition, the agency herein provides notice
to [complainant] and the Commission that it intends to delay
the payment of any amount ordered to be paid to [complainant]
until after the appeal is resolved. If the resolution of the
appeal requires the agency to pay that amount, the agency will
pay interest.
The agency filed a brief in support of its appeal to the Commission
via mail and containing a postmark date of January 21, 2009. On page 6
of its appeal brief, in footnote 1 the agency stated that "The Agency
will supplement this brief with a copy of the conditional offer of
reinstatement to the Appellant."
EEOC Regulation 29 C.F.R. � 1614.505(a) provides in pertinent part that:
(1) When the agency appeals and the case involves removal, separation,
or suspension continuing beyond the date of the appeal, and when the
administrative judge's decision orders retroactive restoration, the
agency shall comply with the decision to the extent of the temporary or
conditional restoration of the employee to duty status in the position
specified in the decision, pending the outcome of the agency appeal. The
employee may decline the offer of interim relief.
....
(4) The agency shall notify the Commission and the employee in writing
at the same time it appeals that the relief it provides is temporary
or conditional and, if applicable, that it will delay the payment of
any amounts owed ... Failure of the agency to provide notification will
result in the dismissal of the agency's appeal.
EEOC Regulation 29 C.F.R. � 1614.505(b) provides that:
If the agency files an appeal and has not provided required interim
relief, the complainant may request dismissal of the agency's appeal. Any
such request must be filed with the Office of Federal Operations within
25 days of the date of service of the agency's appeal. A copy of the
request must be served on the agency at the same time it is filed with
EEOC. The agency may respond with evidence and argument to complainant's
request to dismiss within 15 days of the date of service of the request.
On January 21, 2009, complainant filed his Motion for Dismissal Agency
Appeal Due to Agency's Failure to Provide Interim Relief, pursuant
to 29 C.F.R. � 1614.505(b) requesting that the agency's appeal be
dismissed.3 Complainant's motion stated that the agency did not, at the
time of issuance of its final action, or at any time thereafter, provide
complainant with restoration (whether temporary/conditional or otherwise)
to his former position as required by the AJ. Complainant noted that
the agency was aware as early as September 26, 2007, that the AJ had
advised the agency to "take a close look at 29 C.F.R. � 1614.505 with
respect to interim prospective relief" and that the AJ did not "believe
complainant presents an exception as set forth therein."4 Complainant's
motion indicated that the agency was provided a copy of complainant's
dismissal request. 5
The agency submitted a letter to the Commission dated February 4, 2009,
received by the Commission on February 9, 2009, stating that it was
enclosing a copy of the letter referenced on page 6 of the agency's
brief in support of its appeal. Attached to the February 4, 2009
letter to the Commission was an Assignment Offer dated February 3, 2009,
addressed to complainant. In the February 3, 2009 letter, the agency
offered to reinstate complainant to the position of City Letter Carrier,
with a duty station in the Bethesda, Maryland area.6 The agency did
not provide evidence indicating if complainant received this letter.
We find that the AJ's Order of November 10, 2008, as recited herein,
is an order to the agency to restore complainant's employment with the
agency within the meaning of 29 C.F.R. � 1614.505. Our examination of the
agency's final action and its brief shows that the agency did not provide
complainant with the interim relief whether temporary or conditional
restoration, as ordered by the AJ's decision upon the issuance of its
final action and simultaneous appeal to the Commission. Therefore, the
agency's appeal shall be dismissed for failure to offer the interim relief
required by 29 C.F.R. � 1614.505. See Edelman v. Department of Justice,
EEOC Appeal No. 0720060002 (April 25, 2007), request for reconsideration
denied, EEOC Request No. 0520070567 (April 24, 2008) (failure to provide
notice of reinstatement to complainant until approximately 18 days after
filing of the agency's final action); Coulter-Lawson v. United States
Postal Service, EEOC Appeal No. 07A50081 (January 11, 2006) (agency
failed to reinstate complainant after a finding of discrimination where
AJ's ordered agency to return complainant to work); Wilkinson v. Social
Security Administration, EEOC Appeal No. 07A50089 (September 29, 2005)
(agency failed to provide notice of reinstatement and failed to file a
timely response to complainant's motion to dismiss after a finding of
liability and order for reinstatement).
CONCLUSION
Accordingly, the agency's appeal is DISMISSED on the grounds that it
failed to comply with the Commission's provisions on interim relief.
The Commission directs the agency to provide the relief ordered by the
AJ, as slightly modified, and set forth herein.
ORDER
To the extent it has not already done so, the agency shall take the
following remedial actions:
1. Within 30 days of the date this decision becomes final, the
agency shall offer to place complainant in the position of City Letter
Carrier with the Potomac Substation of the Rockville Post Office, or a
substantially equivalent position. Complainant shall be reinstated with
all back pay, allowances, and differentials that he would have received
had he not been terminated, including any incremental increases in salary,
Thrift Savings Plan contributions, health and life insurance benefits, and
other benefits associated with employment with the agency, with interest.
2. Within 60 days of the date this decision becomes final, the agency
shall determine the appropriate amount of back pay owed to complainant
(with interest), from February 21, 2006, through the date he is reinstated
or declines reinstatement. 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 60
days of the date the agency determines the amount it believes to be due.
3. The agency shall pay complainant $11,636.79 in pecuniary damages
within 30 days of the date this decision becomes final, plus interest
as provided by 29 C.F.R. �1614.505.
4. The agency shall pay complainant $42,000.00 in non-pecuniary,
compensatory damages within 30 days of the date this decision becomes
final, plus interest as provided by 29 C.F.R. �1614.505.
5. The agency shall pay attorney's fees and costs in the amount of
$102,926.60 and costs in the amount of $2,727.27 to complainant within 30
days of the date this decision becomes final, plus interest as provided
by 29 C.F.R. � 1614.505.
6. Within 180 days of the date this decision becomes final, the
agency shall consider taking disciplinary action against complainant's
immediate supervisor (at the time of the removal), if he is still
employed with the agency. The agency shall report its decision to
the Compliance Officer referenced herein. If the agency decides to
take disciplinary action, it shall identify the action taken. If the
agency decides not to take disciplinary action, it shall set forth the
reasons(s) for its decision not to impose discipline. If the individual
has left the agency's employ, the agency shall furnish documentation of
the individual's departure.
7. Within 180 days of the date this decision becomes final, the
agency shall provide training in employment discrimination law for
the agency officials identified in complainant's complaint involved in
complainant's termination.
The agency is further directed to submit a report of compliance, as
provided in the statement en-titled "Implementation of the Commission's
Decision." The report shall include supporting documentation of the
agency's calculation of back pay and other benefits due complainant,
including evidence that the corrective action has been implemented.
INTERIM RELIEF (F0408)
When the agency requests reconsideration and the case involves a
finding of discrimination regarding a removal, separation, or suspension
continuing beyond the date of the request for reconsideration, and when
the decision orders retroactive restoration, the agency shall comply with
the decision to the extent of the temporary or conditional restoration
of the complainant to duty status in the position specified by the
Commission, pending the outcome of the agency request for reconsideration.
See 29 C.F.R. � 1614.502(b).
The agency shall notify the Commission and the complainant in writing at
the same time it requests reconsideration that the relief it provides
is temporary or conditional and, if applicable, that it will delay
the payment of any amounts owed but will pay interest from the date
of the original appellate decision until payment is made. Failure of
the agency to provide notification will result in the dismissal of the
agency's request. See 29 C.F.R. � 1614.502(b)(3).
POSTING ORDER (G0900)
The agency is ordered to post at its Rockville Post Office in Rockville,
Maryland, 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 (K1208)
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 (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 (R0408)
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 (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
January 22, 2010
__________________
Date
1 The AJ did not find that complainant proved discrimination occurred
with respect to claims (1), (2), and (3). The agency adopted the finding
of no discrimination with respect to claims 1 - 3.
2 We note that the certificate of service that accompanies the AJ's
Order indicates that the order was mailed on November 14, 2008.
3 Complainant is not challenging the finding of no discrimination in
claims 1 - 3 and complainant is not challenging the remedies awarded by
the AJ.
4 Hearing Transcript, September 26, 2007, Page 38, Lines 7 - 12.
5 We note the agency failed to respond to complainant's motion within
15 days of service, as specified in 29 C.F.R. � 1614.505(b).
6 We note complainant's previous duty station was in the Rockville
Post Office.
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0720090024
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0720090024