01992228
03-20-2001
Linda O. Strange v. United States Postal Service 01992228 03-20-01 .Linda O. Strange, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Linda O. Strange v. United States Postal Service
01992228
03-20-01
.Linda O. Strange,
Complainant,
v.
William J. Henderson,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01992228
Agency No. 4D-280-1063-94
Hearing No. 140-97-8082X
DECISION
INTRODUCTION
Complainant timely initiated an appeal of a final agency decision (FAD),
dated December 14, 1998, concerning her complaint of unlawful employment
discrimination, in violation of Section 501 of the Rehabilitation Act
of 1973, as amended, 29 U.S.C. � 791 et seq. This appeal is accepted
in accordance with 29 C.F.R. � 1614.405.
ISSUE PRESENTED
The issue presented is whether the Agency properly found that complainant
was not entitled to the remedy of reimbursement for sick leave taken.
BACKGROUND
Complainant filed a formal complaint on September 21, 1994, alleging
discrimination on the bases of disability (carpal tunnel syndrome)(CTS)
and retaliation (prior EEO activity) when: 1) on December 3, 1993, she
was told to return to her former position of Distribution Window Clerk
at the Fort Bragg, North Carolina Post Office; and 2) on June 23, 1994,
she received a memorandum advising that her right to Job Number 3963738
(Bulk Mail Clerk) had been relinquished. A hearing was conducted by
an EEOC Administrative Judge (AJ) on August 5, 1998. The AJ issued a
Recommended Decision finding discrimination, and ordering, among other
remedies, that the Agency �[r]estore to the complainant any sick leave
that she was forced to use as a result of the discrimination.� In its
FAD, the Agency adopted the AJ's recommended decision and the entire
remedy with the exception of the part of the remedy ordering sick leave.
The Agency rejected this portion of the recommended relief, finding that
the record was devoid of any evidence that would support complainant's
contention that the approximately 245.35 hours of sick leave that she used
was the result of the Agency's discrimination. The Agency based this
decision on the fact that no objective evidence, in the form of medical
documentation or otherwise, was submitted by complaint regarding her
sick leave argument. This appeal by complainant, solely on the remedy
of sick leave, followed.
ANALYSIS AND FINDINGS
In the case at hand, complainant stated that she experienced a recurrence
of her Carpal Tunnel Syndrome in March 1993, and bid on the Bulk Mail
Clerk position so that she would not have to perform repetitive movements
with her hands. Complainant indicated that she qualified for the
position in November 1993, and performed the duties thereof for a short
period of time. It appears that after complainant was told to return to
her former position in December 1993, she was placed on limited duty.
Complainant was ultimately placed into the Bulk Mail Clerk position in
May 1995, as the result of a grievance settlement.
The Commission has previously held that leave restoration is an equitable
remedy available when there is a finding of discrimination. See, e.g.,
McGowen-Butler v. Department of Treasury, EEOC Request No. 05940636
(September 9, 1994); Whiting v. ACTION, EEOC Request No. 05900093 (June
27, 1990). Complainant asserted that she used 245.35 hours of sick
leave as a result of the discrimination. Given the facts in this case,
we find, as did the AJ, that complainant is entitled to reimbursement
for any sick leave used as a result of having to return to her former
position and relinquish her right to the Bulk Mail Clerk position.
CONCLUSION
The decision of the agency, regarding the sick leave, is hereby MODIFIED,
and the agency shall restore to complainant that amount of sick leave
used as a result of the discrimination.
ORDER
The agency shall examine its leave records and solicit such additional
information from complainant regarding leave usage as is necessary to
determine the amount of sick leave used as a result of the discrimination.
The agency shall, thereafter, restore that amount of sick leave to
complainant. The agency shall complete these actions within sixty (60)
calendar days. 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 sick leave, including evidence that the
corrective action has been implemented.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0900)
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)(Supp. V 1993). 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 (M0900)
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
____03-20-01______________________________
Date