01A25061_r
09-15-2003
Jamie A. Sharpe, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Jamie A. Sharpe v. United States Postal Service
01A25061
September 15, 2003
.
Jamie A. Sharpe,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A25061
Agency No. 4F-956-0114-00
DECISION
On September 16, 2002, complainant filed an appeal with the Commission
alleging that the agency failed to comply with a final action issued by
the agency on July 2, 2002.
The record reveals that during the relevant time, complainant applied
for employment as a Window Distribution Clerk with the agency's Paradise
Office. Complainant filed a formal complaint alleging that she was
discriminated against on the bases of sex, disability, and reprisal when:
on June 15, 2000, complainant was denied employment and reasonable
accommodation even though she was initially selected for a position
following an interview with the Postmaster on April 17, 2000. At the
conclusion of the investigation, complainant requested a hearing before
an EEOC Administrative Judge (AJ). The AJ issued a decision without a
hearing finding that complainant was discriminated against on the basis
of her disability when she was denied employment.<1> The AJ further
found that complainant failed to establish that she was discriminated
against on the bases of sex and reprisal. On July 2, 2002, the agency
issued a Notice of Final Action, implementing the AJ's decision.
The agency's July 2, 2002 decision provided the following remedies:
The Agency shall pay Complainant back-pay from the date of the incident
through and including April 24, 2002 totaling $33,760.
The Complainant shall be reinstated to her Distribution Clerk Position
at the Paradise Post Office and pay her back-pay plus interest from
April 25, 2002 to the date of reinstatement.
The Complainant shall be reimbursed for out of pocket expenses totaling
$2,000.
The Complainant shall receive $8,000 in non-pecuniary damages.
The Complainant is entitled to sick and annual leave from May 1, 2000
through the date of reinstatement [footnote omitted].
On September 16, 2002, complainant filed the present appeal alleging
that the agency was not in compliance with its July 2, 2002 decision.
EEOC Regulation 29 C.F.R. � 1614.504 provides that a final action that
has not been the subject of an appeal to the Commission or a civil action
is binding on the agency, and that if a complainant believes the agency
has failed to comply with the terms thereof, she shall notify the agency
within 30 days of learning of the alleged noncompliance. If, after 35
days from the agency's receipt of complainant's written allegations of
noncompliance, the complainant is not satisfied with the agency's attempt
to resolve the matter, the complainant may appeal to the Commission for
a determination as to whether the agency the agency has complied with
the terms of the final decision. See 29 C.F.R. � 1614.504(b).
In the present case, it is unclear from the record whether complainant
notified the agency of the alleged noncompliance prior to filing
her appeal. However, there is also no indication that complainant was
ever made aware of this requirement, as the agency's final action merely
indicates that complainant may file an appeal with this Commission if she
is dissatisfied. The Commission therefore will exercise its discretion
and consider the matter.
Complainant contends that although she was allowed to begin work at the
appropriate office on August 24, 2002, the agency has failed to adjust
her seniority and pay scale. Complainant also stated that the agency
failed to compensate her for back-pay, out of pocket expenses, and
non-pecuniary damages. Complainant noted that she has made repeated
calls to Labor Relations, but the situation has not been remedied.
Upon review we find that there is insufficient information in the
record to determine whether the agency complied with its final action.
Therefore, we shall remand the matter so that the agency may show whether
it has complied with the agency's July 2, 2002 decision.
Accordingly, the matter is REMANDED to the agency for further action in
accordance with the following Order.
ORDER
The agency shall place evidence in the record showing whether it has
taken the following actions:
Paid Complainant back-pay from the date of the incident through and
including April 24, 2002 totaling $33,760.
Reinstated complainant to her Distribution Clerk Position at the Paradise
Post Office and paid her back-pay plus interest from April 25, 2002 to
the date of reinstatement.
Reimbursed complainant for out of pocket expenses totaling $2,000.
Paid complainant $8,000 in non-pecuniary damages.
Reimbursed complainant for sick and annual leave from May 1, 2000 through
the date of reinstatement.
Within 30 days of the date this decision becomes final the agency
shall issue a decision to complainant determining whether the agency
has complied with the agency's July 2, 2002 decision. A copy of the
decision must be sent to the Compliance Officer referenced herein.
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 (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
September 15, 2003
__________________
Date
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
__________________
Date
______________________________
1In a June 17, 2002 decision, the AJ modified a previous May 31, 2002
decision, to include additional remedies. Additionally, the AJ's decision
incorporated a previous March 12, 2002 judgement in favor of complainant
and the parties stipulated April 23, 2002 agreement.