Jonathan Black, Petitioner,v.John E. Potter, Postmaster General, United States Postal Service, (Capital-Metro Area), Agency.

Equal Employment Opportunity CommissionFeb 15, 2007
0420070002 (E.E.O.C. Feb. 15, 2007)

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