04a50022
11-23-2005
Joanne L. Burnett, Petitioner, v. John E. Potter, Postmaster General, United States Postal Service, (New York Metro Area), Agency.
Joanne L. Burnett v. United States Postal Service
04A50022
November 23, 2005
.
Joanne L. Burnett,
Petitioner,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(New York Metro Area),
Agency.
Petition No. 04A50022
Appeal No. 01981618
Agency Nos. 1A-071-102-94; 1A-071-1010-95
Hearing Nos. 170-95-8498X; 170-95-8499X
DECISION ON A PETITION FOR ENFORCEMENT
On June 1, 2005, the Equal Employment Opportunity Commission (EEOC
or Commission) docketed a petition for enforcement to examine the
enforcement of an order set forth in Joanne L. Burnett v. United States
Postal Service, EEOC Appeal No. 01981618 (September 26, 2002). Petitioner
alleged that the agency failed to fully comply with the Commission's order
dated September 26, 2002. The petition for enforcement is accepted by
the Commission pursuant to 29 C.F.R. � 1614.503.
As background, petitioner filed a complaint in which she alleged
that the agency discriminated against her on the bases of her race
(African-American), disability (asthma and allergic rhinitis), and
in reprisal for prior EEO activity. In EEOC Appeal No. 01981618, the
Commission found that the agency discriminated against complainant because
of her disability by failing to provide complainant with a reasonable
accommodation. More specifically, the Commission found that the agency
should have reassigned complainant to a position away from the workroom
floor and that its Collective Bargaining Agreement was not a bar to such
a reassignment. The Commission also found that the agency's termination
of her employment violated the Rehabilitation Act.
The Commission's order for relief directed the agency to reinstate
complainant to a vacant position which accommodated her disability at an
equivalent pay and status as her previous bid position as a Letter Sorting
Machine Operator. If such a position was not available, the Commission
required the agency to assign complainant to a lower level position which
complied with her medical limitations. The Commission also required the
agency to compute back pay.<0> The matter was assigned to a Compliance
Officer and docketed as Compliance No. 06A30021 on May 3, 2005.
On May 31, 2005, petitioner submitted this petition for enforcement
through her attorney.<0> The petition contends that the agency failed
to pay any back pay or to reinstate complainant to her employment in a
position which would accommodate her disability. Her petition claims she
is owed back pay from December 17, 1994, the date the agency's termination
of her employment was effective, to the date of her death on October
28, 2004. Complainant contends that any partial wage payment made in
response to an arbitration decision was not the full amount of back pay
owed and that her calculations of back pay are more accurate in that
they accounted for any disability retirement benefits she received.
The agency opposed complainant's petition stating that it fully
complied with the Commission's order and that complainant is not owed any
additional back pay. The agency's position is that it offered complainant
her original bid position as a Letter Sorting clerk but rather than report
to work, she applied for disability retirement. The agency argues that
complainant indicated in her application for disability retirement that
she was unable to work as of May 14, 1994 which implied that she was
unable to report for duty because of her disability. The Office of
Personnel Management granted complainant's application for disability
retirement on February 8, 1999 retroactive to March 15, 1996.
According to the record before us, the agency submitted computer
documentation that it paid complainant the sum of $40,198.82 in gross
wages in 1997. The agency reported that this payment occurred in June
1996 and represented back pay for the time period December 17, 1994 to
March 11, 1996. This time period encompassed the date of the agency's
termination of complainant's employment to the date the agency offered
complainant reinstatement to her position in the Manual Distribution
unit.
In her petition, complainant acknowledged receipt of a �wage settlement�
in 1997 in the amount of $43,161.00 as set forth in the �Back Pay Award
Report� submitted by her accountant. She argued however, that this was
not the correct amount of back pay the agency should have paid to her.
We turn first to the Commission's Order entered in September 2002.
There, we required the agency to restore complainant to her employment
retroactive to the date her termination became effective and to pay
complainant back pay as recovery of her lost wages. Although the
agency issued a letter dated March 11, 1996 ostensibly reinstating
complainant to her employment, it did not offer complainant a position
which accommodated her disability as the Commission ordered. Instead,
the agency informed complainant that her original bid position had been
abolished and she was provided �an opportunity to bid on assignments.�
As we stated in our previous decision, complainant is not required to
bid for positions which are available in order to receive a reassignment
as a reasonable accommodation. EEOC Revised Enforcement Guidance on
Reasonable Accommodation and Undue Hardship Under the Americans with
Disabilities Act (October 2002).
Moreover, the Commission required the agency to reassign complainant to
a position which would accommodate her pulmonary dysfunctions in a place
away from the letter sorting area. Instead, according to the agency's
correspondence reinstating her, it placed complainant as an Unassigned
Regular in the Manual Distribution unit. The agency's letter stated
that it would accommodate complainant's disability by permitting her to
wear a Nuisance Dust Mask and by washing down a special distribution
case twice a day. As noted in our previous decision, this was not an
acceptable approach by the agency. There being no indication that the
agency attempted to identify other positions as we directed, we conclude
that the agency's offer of reinstatement to the letter sorting area was
deficient and did not comply with our Order.
Responding to the agency's contention that complainant admitted she
was unable to work in her application for disability retirement
benefits, the Commission has clearly expressed the policy that
representations made in an application for disability benefits are
not necessarily determinative or an absolute bar to a claim for a
reasonable accommodation. EEOC Enforcement Guidance on the Effect of
Representations Made in an Application for Benefits on a Determination of
whether a Person is a Qualified Individual with A Disability under the
Americans with Disabilities Act (Compliance Manual Notice No. 915.002
2/12/97). The Commission further stated that an individual should not
be forced to choose between his/her rights under the ADA and the right
to claim disability benefits under other statutes. Id. A relevant
inquiry, which we believe is present in the instant case, is whether an
individual applied for disability benefits because her employer denied
her a reasonable accommodation. Id. Thus, the fact that complainant
applied for and was granted disability retirement status did not excuse
the agency from complying with our order for a reassignment.
Nevertheless, the record accompanying this petition supports that
complainant eventually became unable to work due to her declining health.
Specifically, medical records indicate that complainant suffered a stroke
in February 1997 and another stroke in September 1997. Significantly,
complainant's physician gave her a neurological evaluation in January
1998, and reported that complainant was incapable of working and was
permanently disabled due to the effects of the two strokes she suffered
in 1997.
Based on this evidence, the Commission concludes that the appropriate
time period for purposes of calculating back pay should begin December 17,
1994 and end at the time of complainant's first stroke in February 1997.
We note that there was no evidence provided that complainant was unable
to work prior to February 1997.
As it appears from the record that complainant received disability
retirement benefits during the applicable back pay period, the agency is
advised that any back pay amount computed is not offset by the receipt
of such benefits. Savage v. United States Postal Service EEOC Appeal
No. 04990044 (March 28, 2000) citing EEOC Policy Guidance: Cases Involving
the Deduction of Pension Payments from Back Pay Awards, No. N-915-054
(May 11, 1990). However, other payments the agency made as back pay will
offset any re-computation of amounts owed pursuant to this decision.
Accordingly, the agency is directed to comply with the Commission's Order
as set forth below. The Commission's order will only address back pay
since reinstatement of complainant is moot due to her intervening death.
As stated before, the issue of compensatory damages and attorney's fees
will be addressed in a separate decision.
ORDER (D0403)
1. Within 30 days, the complainant's counsel will submit appropriate
proof that he represents the complainant's estate in this matter.
2. Within 60 days of the date this Order becomes final, the agency will
re-compute back pay for the period December 17, 1994 to February 23,
1997, with interest, and other benefits due complainant, pursuant to
29 C.F.R. � 1614.501. The complainant's estate's representative 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 necessary, the agency shall issue a check to the complainant's
estate for additional amounts due as a result of the new computation.
Complainant's estate may petition for enforcement or clarification of
the amount in dispute. The petition for clarification or enforcement
must be filed with the Compliance Officer, at the address referenced in
the statement entitled "Implementation of the Commission's Decision."
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 backpay and other benefits due complainant,
including evidence that the corrective action has been implemented.
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.
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S0900)
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 (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
November 23, 2005
Date
0 1The Commission also remanded the case to
an EEOC Administrative Judge for a determination of whether compensatory
damages and attorney's fees should be awarded. Complainant has appealed
that determination which is the subject of a separate appeal and will
not be addressed in this decision.
0 2Petitioner was deceased on October 28, 2004.