01a22473
09-11-2003
Lonnie Courtney, Complainant, v. John E. Potter, Postmaster General, United States Postal System, Agency.
Lonnie Courtney v. United States Postal System
01A22473
09-11-03
.
Lonnie Courtney,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal System,
Agency.
Appeal No. 01A22473
Agency No. 4G-730-0059-99
Hearing No. 301-A0-5097x
DECISION
On March 27, 2002, Lonnie Courtney (hereinafter referred to as
complainant) filed an appeal from the February 22, 2002, Notice of Final
Action of the United States Postal System (hereinafter referred to as
the agency) accepting the decision of the EEOC Administrative Judge (AJ)
that the agency discriminated against complainant based on disability
(kidney cancer) when it failed to provide him a reasonable accommodation.
The appeal is timely filed (see 29 C.F.R. � 1614.402(a)) and is accepted
in accordance with 29 C.F.R. � 1614.405. For the reasons that follow,
the agency's decision is AFFIRMED.
The issue presented by this appeal is whether the remedy awarded by
the AJ and adopted by the agency provides complainant full relief.
See 29 C.F.R. � 1614.501; see also Albemarle Paper Co. v. Moody, 422
U.S. 405 (1975). Following a hearing, the AJ found that the agency
discriminated against complainant based on disability; in remedy, the
AJ ordered that the agency pay attorney's fees and costs in the amount
of $14,081.70; that the agency restore to complainant 14.93 hours of
annual leave used in conjunction with the hearing; and that the agency
engage in an interactive process to search for a vacant, funded position
to meet complainant's requirements. In addition, the AJ specifically
denied other relief sought by complainant, i.e., he was not entitled to
special pay (out-of-schedule premium or holiday), travel expenses,<1>
or compensatory damages, having failed to provide evidence that any harm
was a direct result of the agency's discriminatory action.
On appeal, complainant sought reimbursement of his travel costs pursuant
to 28 U.S.C. � 1920, out-of-schedule premium pay, and compensatory
damages. In support, complainant repeated arguments and presented
documents previously submitted and considered by the AJ. The agency
did not submit comments in response to this appeal.
The AJ explained her reasons for denying the additional relief sought on
appeal, and complainant has not presented further support for his claim.
After a review of the record in its entirety, including consideration
of all statements submitted on appeal, we find that the decision of
the AJ accurately states the facts and correctly applies the pertinent
principles of law. Based on our review of the record, we find that the
decision of the AJ was correct.
CONCLUSION
Accordingly, the agency's decision was proper and is AFFIRMED. The agency
is directed to comply with the Order, below.
ORDER
Unless it has done so, the agency is ordered to take the following
remedial action:
A. The agency shall restore 14.93 hours to annual leave to complainant.
B. The agency shall pay attorney's fees and costs of $14,081.70.
C. The agency shall engage in an interactive process with complainant
to determine whether a vacant, funded position is available to meet his
accommodation requirements.
D. The agency shall conduct no less than four (4) hours of training for
all supervisory and managerial employees involved in the events found to
be discriminatory in this decision. Such training shall address these
employees' responsibilities with respect to eliminating discrimination
in the federal workplace and the equal employment opportunity laws.
The training shall place special emphasis on prevention and elimination
of discrimination based on disability and procedures for processing
requests for reasonable accommodation. The agency is advised that the
Commission does not consider training to be a disciplinary matter.
E. The agency shall consider appropriate disciplinary action against the
supervisory and managerial employees involved in the events found to be
discriminatory in this decision and report its decision to the Commission.
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.
F. 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 that the
corrective action has been implemented. Copies of all submissions to
the Commission shall be sent to the complainant.
POSTING ORDER (G0900)
The agency is ordered to post at its Processing and Distribution Center,
Oklahoma City, Oklahoma, 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.
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.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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 (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
___09-11-03_______________
Date
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
AN AGENCY OF THE UNITED STATES GOVERNMENT
This Notice is posted pursuant to an Order by the United
States Equal Employment Opportunity Commission dated
which found that a violation of the Rehabilitation Act of 1973, as
amended, 29 U.S.C. �� 791, 794(c), has occurred at this facility.
Federal law requires that there be no discrimination against any employee
or applicant for employment because of the person's RACE, COLOR, RELIGION,
SEX, NATIONAL ORIGIN, AGE or DISABILITY with respect to hiring, firing,
promotion, compensation, or other terms, conditions or privilege of
employment.
The United States Postal Service, Processing and Distribution Center,
Oklahoma City, Oklahoma, supports and will comply with such Federal law
and will not take action against individuals because they have exercised
their rights under the law. The Commission affirmed the agency's finding
of discrimination based on disability, and the agency has remedied
the employee affected by directing agency managers to engage in an
interactive process to afford complainant a reasonable accommodation
and pay attorney's fees and costs. The United States Postal Service,
Processing and Distribution Center, Oklahoma City, Oklahoma, will
ensure that officials responsible for personnel decisions and terms and
conditions of employment will abide by the requirements of all federal
equal employment laws and will not subject employees to discrimination
based on disability.
The United States Postal Service, Processing and Distribution Center,
Oklahoma City, Oklahoma, will not in any manner restrain, interfere,
coerce, or retaliate against any individual who exercises his or her
right to oppose practices made unlawful by, or who participated in
proceedings pursuant to, Federal equal employment opportunity law.
Date Posted:
Posting Expires:
29 C.F.R. Part 1614.
1Complainant was on vacation at the time of the hearing and sought
reimbursement for his cost to return and lodge in his home commuting area.