04A20026
08-06-2003
Linh Chau-Pham, Petitioner, v. John E. Potter, Postmaster General, United States Postal Service (Pacific Area), Agency.
Linh Chau-Pham v. United States Postal Service
04A20026
August 6, 2003
.
Linh Chau-Pham,
Petitioner,
v.
John E. Potter,
Postmaster General,
United States Postal Service
(Pacific Area),
Agency.
Petition No. 04A20026
Appeal No. 01985730
Agency No. 1F-915-1003-96
Hearing No. 340-96-3700X
DECISION ON A PETITION FOR ENFORCEMENT
On May 7, 2002, the Equal Employment Opportunity Commission (EEOC or
Commission) docketed a petition for enforcement to examine the enforcement
of an order in Linh Chau-Pham v. United States Postal Service, EEOC
Appeal No. 01985730 (July 17, 2001). This petition for enforcement is
accepted by the Commission pursuant to 29 C.F.R. � 1614.503.
Petitioner filed a complaint in which she alleged that the agency
discriminated against her on the bases of race (Asian), national origin
(Chinese), sex (Female), color (Yellow), disability (lower back injury),
and age (DOB: 10/1/56). Petitioner appealed the agency's final decision
dismissing her complaint to the Commission. In EEOC Appeal No. 01985730,
the Commission found no basis to disturb the EEOC Administrative Judge's
(AJ's) finding that petitioner failed to establish a prima facie case
of race, color, sex, national origin or age discrimination. However,
the Commission reversed the AJ's finding of no disability discrimination
and found that agency discriminated against petitioner based on her
disability when it failed to provide an accommodation to petitioner in
violation of Section 501 of the Rehabilitation Act of 1973, as amended,
29 U.S.C. � 791 et seq. The Commission ordered the agency to take,
in relevant part, the following remedial action:
Within sixty (60) calender days of the date this decision becomes final,
the agency is directed to award [petitioner] back pay, with interest,
if applicable, for all wages and benefits lost between January 6, 1996
and December 5, 1996. The agency shall determine the appropriate amount
of back pay, interest, and other benefits due [petitioner], pursuant
to 29 C.F.R. � 1614.501(c). The [petitioner] 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 [petitioner] for the
undisputed amount within sixty (60) calender days of the date the
agency determines the amount it believes to be due. The [petitioner]
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 Commission ordered the agency to submit the compliance report to
the Commission within thirty (30) calendar days of the completion of
all ordered corrective action. We also required the agency to include
supporting documentation with its report, and to send a copy of all
submissions to petitioner.<1> The matter was assigned to a Compliance
Officer at the Commission, and docketed as Compliance No. 06A11613,
on July 17, 2001. On May 7, 2002, this petition for enforcement was
docketed as Petition No. 04A20026. In a letter dated February 27, 2002,
petitioner alleged that the agency had not complied with the Commission's
decision in Appeal No. 01985730 because petitioner did not receive the
appropriate amount of back pay and interest. Specifically, she alleged
that the agency miscalculated the amount due to the Office of Workers
Compensation Programs (OWCP) for the amount received by petitioner during
the back pay period, and miscalculated the back pay due to petitioner by
failing to include night differential and interest. In a response dated
June 4, 2002, the agency submitted documentation in regard to the back pay
and interest paid to petitioner. The documentation states that the agency
determined that petitioner was due a gross back pay award of $31,152.43;
$24,893.21 was paid for OWCP benefits; and complainant received a check
for $280.17. The agency also issued complainant a check for $17,432.92,
representing the interest due. The most recent correspondence from
petitioner, dated June15, 2002, provided that she received these two
checks. Petitioner did not contend in her correspondence that this
amount was inappropriate or that she was entitled to any further relief.
In the case at hand, the petitioner failed to establish that the agency
was not in compliance with the order issued in Appeal No. 01985730. In so
finding, we note that the record is void of any probative information
regarding specifically how the agency failed to properly determine
the amount of back pay due to petitioner. Accordingly, we find that
the agency paid petitioner all of the back pay due to her. Therefore,
the Commission denies petitioner's Petition for Enforcement. There is
no right of administrative appeal from this denial.
PETITIONER'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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
August 6, 2003
__________________
Date
1 There is sufficient evidence of record to conclude that the agency
has complied with the posting notice order, and determined and provided
petitioner with compensatory damages of $4140.00.