01A05044
12-30-2002
Ishmel J. Johnson, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Ishmel J. Johnson v. United States Postal Service
01A05044
December 30, 2002
.
Ishmel J. Johnson,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A05044
Agency No. 1-H-304-0044-98
Hearing No. 110-99-8126X
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts the complainant's
appeal in the above-entitled matter. The issue on appeal is whether
the agency has fully complied with its final agency decision of June
19, 2000 in accordance with the order of relief awarded by the EEOC
Administrative Judge. Following a hearing, the Administrative Judge (AJ)
found that the agency discriminated against complainant on the basis of
his sex (male). In its June 19, 2000 notice of final action, the agency
accepted the AJ's decision. For the following reasons, the Commission
affirms the agency's final action and remands for verification that all
of the relief has been provided.
As background, complainant filed a formal equal employment opportunity
(EEO) complaint, alleging unlawful 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. on June 29, 1998. The record reveals that
complainant was a temporary Casual Mail Handler at the agency's Bulk Mail
Facility in Atlanta facility. He alleged that the agency discriminated
against him on the basis of sex (male) when it terminated him, but not his
female counterpart, when the two were involved in an altercation. The AJ
ordered that complainant be reinstated to his former position, provided
$10,000 in compensatory damages, and back-pay and other benefits. In
addition, the AJ required the posting of a notice and an expungement of
any references in his file of the termination. After a careful review
of the record, we discern no basis to disturb the agency's final action
and order of relief, or the AJ's decision upon which both is based.
Accordingly, the decision and award of relief are affirmed.
Pursuant to 29 C.F.R. � 1614.504(b), a complainant who believes that
the agency has failed to comply with its final action may appeal to the
Commission for a determination as to whether the agency has complied
with the terms of the decision. The only issue on appeal is whether
the agency has complied with its final decision. Therefore, we have
considered the matter pursuant to 29 C.F.R. � 1614.504. We note that,
at the time of the filing of his appeal, the agency had not provided
complainant with all of the relief ordered by the AJ. Since the filing
of complainant's appeal, however, the record shows that, the agency paid
complainant $10,000 in compensatory damages on September 29, 2000. We
find compliance with that aspect of the order.
We further find that the agency has complied with the requirement
to reinstate complainant into his former position as a Casual
Employee-EAS-07. Complainant was in a temporary assignment as a Casual
Mail Handler at the time of the discriminatory event. The record
sufficiently documents that complainant was restored to a position
like the one he held, as a Casual Mail Handler. Complainant argues
that he is entitled to reinstatement to a specific tour assignment,
Tour 1. We disagree. While complainant is entitled to make-whole relief,
he is not entitled to be put into a better position than he held before
the discrimination occurred; and it is significant that the AJ did not
specify a particular tour, inasmuch as complainant requested that the AJ
specify a particular tour. As a casual employee, there was no guarantee
of permanency or placement in any particular tour.
With regard to the notice to employees, the record before us indicates
that a notice was posted, but it does not indicate whether the notice was
posted on all employee bulletin boards as required by the AJ decision.
There is nothing in the record regarding back-pay or the expungement of
the record. We find, therefore, that there is insufficient information
in the record to determine whether the agency fully complied with its
final decision with regard to the provision of back-pay and benefits,
the expungement of the record, or the posting of the Notice to
Employees. Accordingly, we affirm the agency's final action, which is
binding on the agency. We reiterate the AJ's Order below, in relevant
part, and remand this matter to the agency, directing the agency to
provide our Compliance Officer with evidence of its full compliance with
the decision and the actions required in the award of relief.
ORDER
The agency is ORDERED to take the following remedial action within sixty
(60) calendar days of the date this decision becomes final, unless
otherwise noted:
(1) The agency shall determine the appropriate amount of back pay,
if any, with interest; overtime pay, if any, with interest; and any and
all other benefits due complainant, pursuant to 29 C.F.R. � 1614.501,
less any appropriate offsets. Any amount earned after the date of
termination, as previously specified, should be deducted from his
back pay award. Back pay shall be equal to the difference between
complainant's pay rate and the pay rate for the subject position, from
the date of complainant's termination to the date he was reinstated.
The complainant shall cooperate in the agency's efforts to compute the
amount of back pay, overtime 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, overtime pay and/or benefits,
the agency shall issue a check to the complainant for the undisputed
amount within sixty (60) calendar days. The complainant may petition for
enforcement or clarification of the amount in dispute. The petition for
enforcement or clarification must be filed with the Compliance Officer,
at the address referenced in the statement entitled �Implementation of
the Commission's Decision;� and
(2) If it has not already done so, the agency is ordered to expunge
the termination letter and all references related to his termination
from all agency records and/ or files.
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 back-pay and other benefits due complainant,
including evidence that the corrective action has been implemented.
POSTING ORDER (G0900)
The agency is ordered to post at its Bulk Mail facility in Atlanta,
Georgia 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,
or within 30 days of the issuance of this decision. 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 (M0701)
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 19848,
Washington, D.C. 20036. 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 (R0900)
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 (Z1199)
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
December 30, 2002
__________________
Date
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
An agency of the United States Government
This Notice is posted pursuant to an Order by the United States Equal
Employment Opportunity Commission, dated , which found that
a violation of Title VII of the Civil Rights Act of 1964 (Title VII),
as amended, 42 U.S.C. �2000e et seq. has occurred at this facility or
with regard to an employee who has been employed at this facility.
Federal law requires that there be no discrimination against any employee
or applicant for employment because of the person's RACE, COLOR, RELIGION,
SEX, NATIONAL ORIGIN, AGE, or DISABILITY with respect to hiring, firing,
promotion, compensation, or other terms, conditions or privileges of
employment.
The United States Postal Service(USPS), at its Bulk Mail Facility in
Atlanta, supports and will comply with such Federal law and will not
take action against individuals because they have exercised their rights
under law or offered evidence in support of such individuals.
The USPS Bulk Mail Facility in Atlanta, Georgia was found to have violated
Title VII when it discriminated against an employee on the basis of his
sex, when it terminated him, but not his female counterpart, when the
two were involved in an altercation. The facility has been ordered to
remedy the employee. As a remedy for the discrimination, the agency
was ordered, among other things, to (1) reinstate the employee with
back-pay; (2) award complainant compensatory damages and reasonable
attorney's fees, if applicable; and (3) post this notice. In addition,
the Bulk Mail Facility was ordered to submit a compliance report to the
Commission verifying the completion of all ordered corrective action.
The United States Postal Service will ensure that officials responsible
for personnel decisions and terms and conditions of employment will abide
by the requirements of all Federal equal employment opportunity laws.
The USPS Bulk Mail Facility will not in any manner restrain, interfere,
coerce, or retaliate against any individual who exercises his or her
right to oppose practices made unlawful by, or who participates in
proceedings pursuant to, Federal equal employment opportunity law.
________________________
Date Posted: ________________
Posting Expires: _____________
29 C.F.R. Part 1614