0420070002
02-15-2007
Jonathan Black, Petitioner, v. John E. Potter, Postmaster General, United States Postal Service, (Capital-Metro Area), Agency.
Jonathan Black,
Petitioner,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Capital-Metro Area),
Agency.
Petition No. 0420070002
Appeal No. 01A42589
Agency No. 4K-200-0067-02
DECISION ON A PETITION FOR ENFORCEMENT
On October 11, 2006, the Equal Employment Opportunity Commission (EEOC or
Commission) docketed a petition for enforcement/clarification1 concerning
an order set forth in Jonathan Black v. United States Postal Service,
Appeal No. 01A42589 (June 9, 2006). This petition is accepted by the
Commission pursuant to 29 C.F.R. � 1614.503. Petitioner alleged that
the agency has failed to fully comply with the Commission's order to
grant the relief awarded to him in EEOC Appeal No. 01A42589.
Petitioner filed a complaint (Agency No. 4K-200-0067-02) in which
he alleged that the agency discriminated against him on the basis
of disability under Section 501 of the Rehabilitation Act of 1973
(Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq. Petitioner
appealed the agency's final decision to the Commission, and in EEOC
Appeal No. 01A42589, the Commission found that complainant was subjected
to disability-based discrimination when the agency failed to provide
him with a reasonable accommodation. The Commission ordered remedial
action, and the matter was assigned to a Compliance Officer and docketed
as Compliance No. 0620060808 on June 12, 2006.
On October 11, 2006, petitioner submitted the petition for
enforcement/clarification at issue. Petitioner explains that while
EEOC Appeal No. 01A42589 was pending before the Commission, petitioner
entered into a settlement agreement in April 2005 with the agency
concerning a different formal complaint (Agency No. 4K-200-0038-03)
which complainant had filed on November 22, 2002, in which he alleged
disability and reprisal discrimination.2 The agency's position is
that based on such settlement agreement, the matters raised in EEOC
Appeal No. 01A42589 (Agency No. 4K-200-0067-02) were also settled, and
accordingly, no compensation is due to complainant or to his attorney.
The agency has not submitted a response to the instant petition, although
the agency's August 18, 2006 letter to complainant's attorney, addressing
complainant's submission of legal expenses, is contained in the record.
The Commission is not persuaded that the April 2005 settlement
agreement was intended to dispose of the reasonable accommodation
issue that complainant raised in EEOC Appeal No. 01A42589 (Agency
No. 4K-200-0067-02). First, we note that if the agreement was intended
to settle that case as well as Agency No. 4K-200-0038-03, the parties
would have cited that case somewhere in the settlement agreement. In the
second paragraph of the settlement agreement, it states that complainant
agrees to voluntarily withdraw his complaint (Agency No. 4K-200-0038-03)
within five (5) business days. The agency, well aware that another case
was on appeal at the Commission, easily could have included the other
case (Agency No. 4K-200-0067-02) in this paragraph, if the intention
was to settle that issue as well through the settlement agreement.
Additionally, if the settlement agreement truly disposed of the issue in
Agency No. 4K-200-0067-02, then the agency surely would have notified
the Commission that the EEOC Appeal No. 01A42589 had been settled, and
that the appellate processing of Appeal No. 01A42589 must immediately
cease. The Commission was not given such notification prior to the
issuance of our decision in EEOC Appeal No. 01A42589 on June 9, 2006.
Moreover, if the issues in Appeal No. 01A42589 had been disposed of
through the settlement agreement, then the agency should have requested
reconsideration, and in such request, argued that the case had been
previously settled. No such request for reconsideration was filed by
the agency.
We recognize that the settlement agreement contains some generalized
language that suggests that the agreement discharges and releases the
agency from all claims, demands, obligations, etc., which complainant
has brought against the agency. We find however, based in part on the
wording of the Sixth Section3 of the agreement, that this encompasses only
claims, demands and obligations that are related to the issues in Agency
No. 4K-200-0038-03. We find that the issue in Agency No. 4K-200-0067-02
is distinct from the subject matter in Agency No. 4K-200-0038-03.
Accordingly, we find that the agency is required to comply with the
Order as set forth in our decision in Jonathan Black v. United States
Postal Service, Appeal No. 01A42589 (June 9, 2006).
ORDER
Within sixty (60) days of the date that this decision becomes final,
the agency is ordered to take the following remedial action, if it has
not already done so:
1. The agency shall allow complainant to return to work as a Supervisor,
Customer Services, EAS-16, at the agency's V Street Annex, located in
Washington, D.C., and provide complainant with a reasonable accommodation
for his disability.
2. The agency shall restore any leave used by complainant due to the
agency's failure to provide complainant with a reasonable accommodation.
3. The agency shall determine the appropriate amount of back pay
(with interest, if applicable) and other benefits due complainant,
pursuant to 29 C.F.R. � 1614.501, no later than sixty (60) calendar
days after the date this decision becomes final. The 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 sixty (60) calendar days of the date
the agency determines the amount it believes to be due. The complainant
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."
4. The agency will conduct a supplemental investigation on the issue of
complainant's entitlement to compensatory damages and will afford him
an opportunity to establish a causal relationship between the failure
to provide him with a reasonable accommodation, and his pecuniary
or non-pecuniary losses. Complainant will cooperate in the agency's
efforts to compute the amount of compensatory damages, and will provide
all relevant information requested by the agency. The agency will issue
a final decision on the issue of compensatory damages. 29 C.F.R. �
1614.110. The supplemental investigation and issuance of the final
decision will be completed within sixty (60) calendar days of the date
this decision becomes final. A copy of the final decision must be
submitted to the Compliance Officer, as referenced below.
5. The agency shall provide the managers and supervisors at its V Street
Annex, located in Washington, D.C., with a minimum of eight hours of
training regarding their responsibilities under the Rehabilitation
Act to provide reasonable accommodation to qualified individuals with
disabilities.
6. The agency shall consider taking appropriate disciplinary action
against the responsible management officials. The Commission does not
consider training to be disciplinary action. The agency shall report
its decision to the compliance officer. 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 reason(s)
for its decision not to impose discipline. If any of the responsible
management officials have left the agency's employ, the agency shall
furnish documentation of their departure date(s).
POSTING ORDER (G0900)
The agency is ordered to post at its V Street Annex, located in
Washington, D.C., 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 (KO501)
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.
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 evidence that payment of non-pecuniary
compensatory damages has been made.
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (P0900)
This decision of the Commission is final, and there is no further right
of administrative appeal from the Commission's decision. 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.
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:
February
15,
2007
______________________________ __________________
Carlton M. Hadden, Director
Date
Office of Federal Operations
1 Complainant refers to this petition as "Appellant's Motion to Alter
or Amend and/or for Clarification."
2 The issues in Agency No. 4K-200-003-03 concern a charge of AWOL;
complainant not being permitted to return to work for a period of time;
and a denied request for light duty.
3 The Sixth Section indicates that the settlement agreement "fully
supercedes any and all prior agreements or understandings between the
parties hereto pertaining to the subject matter hereof . . ." (emphasis
added).
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0420070002
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036