04A20003
09-25-2002
Lorenzo R. Reid, Petitioner, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Lorenzo R. Reid v. United States Postal Service
04A20003
September 25, 2002
.
Lorenzo R. Reid,
Petitioner,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Petition No. 04A20003
Appeal No. 01995610
Agency No. 4J-481-0040-98
DECISION ON A PETITION FOR ENFORCEMENT
On November 7, 2001, the Equal Employment Opportunity Commission
(EEOC or Commission) docketed a petition for enforcement to examine
the enforcement of an order set forth in Lorenzo R. Reid v. United
States Postal Service, EEOC Appeal No. 01995610 (February 8, 2001).
This petition for enforcement is accepted by the Commission pursuant
to 29 C.F.R. � 1614.503. Petitioner alleged that the agency failed to
fully comply with the Commission's order.
Petitioner filed a complaint in which he alleged that the agency
discriminated against him on the basis of disability (arthritis). In EEOC
Appeal No. 01995610, the Commission found that the agency discriminated
against him when he was denied a reasonable accommodation.
The order, inter alia, also specified that the agency: (1) reinstate
petitioner to his former position and, in the event he cannot perform
the essential functions of his position, provide him with a reasonable
accommodation; (2) compute back pay with interest for all wages
and benefits; (3) conduct a supplemental investigation pertaining to
petitioner's claim to compensatory damages and issue him a final decision
as to his entitlement to compensatory damages. The matter was assigned
to a Compliance Officer and docketed as Compliance No. 06A10708.
On November 7, 2001, the petition for enforcement at issue was docketed.
Petitioner contends that the agency failed to comply with the Commission's
decision. He indicates that he has not been fully accommodated and that
the agency has not computed compensatory damages or his correct back pay.
The Commission grants the instant petition.
Compensatory Damages
The agency indicated to the Commission's Compliance Officer that
the supplemental investigation had been completed, however no final
decision had been issued. It appears that the agency has not computed
petitioner's entitlement to compensatory damages. Therefore, we find
that the agency shall issue petitioner a final decision on the issue of
compensatory damages.
Back Pay
Petitioner, at the time he initiated this petition, had not received a
computation of back pay from the agency. Since his letter, the agency
provided him a copy of its computation. The agency found that petitioner
would have received $ 133,279.99 in gross earnings. Petitioner had
outside earnings during the relevant time period of $ 121,696.57.
The agency took the difference in earnings ($ 11,789.42) and then
subtracted from the total such items as FICA, Medicare, Retirement,
Health Benefits, Union Dues, and Thrift Savings Plan. As a result,
the agency requested that petitioner pay it $ 3,264.19 if he wished to
receive retirement credit. Petitioner did not specifically respond to
the agency's computations. The Commission is concerned regarding two
items which the agency used to reduce petitioner's award of back pay,
namely the deductions for Health Benefits and Union Dues.
The record shows that petitioner received earnings during the relevant
time. Petitioner has indicated to the Commission that during his interim
employment, he had paid for health insurance coverage. The Commission
is concerned that, based on the agency's computation of back pay,
petitioner is paying twice for health insurance coverage. Accordingly,
we find that petitioner shall provide the agency with documentation to
show that he paid for health insurance coverage during the relevant time.
Based on petitioner's submission, the agency shall make the appropriate
adjustment, if necessary, to its back pay computation.
As to the Union Dues, we find that there is insufficient information
in order to determine whether this item was properly deducted from
petitioner's back pay award. The agency may properly deduct union
dues if: 1) petitioner was a member of the union before his removal; 2)
it routinely deducts union dues from employees who were union members
and, 3) union dues were routinely deducted from petitioner's pay before
he was removed. See Vu v. United States Postal Service, EEOC Appeal
No. 04950020 (April 18, 1996). Accordingly, we remand this issue to
the agency for a supplemental investigation to determine the propriety
of the deduction of union dues from petitioner's back pay award.
Order on Reinstatement
Petitioner contends that he had not been "accommodated" by the agency,
however, he did not argue how his position was outside of his limitations.
The record indicates that petitioner was sent for a Fitness for Duty
Exam which found that he could return to employment with accommodations.
It became apparent that petitioner could not perform his prior position
as a City Carrier. Therefore, the agency had its medical officer review
the position of Distribution Window Clerk and petitioner's limitations.
The Medical Officer found that the position was within petitioner's
limitations and would be ideal for him. The agency formally offered
petitioner the position. Petitioner noted that he would report to
duty however he noted that he felt his rights were being violated.
The prior decision ordered that if petitioner could not perform the
essential function of his prior position with or without reasonable
accommodation, then the agency shall reassign him to a vacant position
which he could perform. Upon review of the record, we find that the
agency has complied with our prior order.
CONCLUSION
Based upon the foregoing, the Petition for Enforcement is GRANTED, and
the agency is ORDERED to take further action as set forth in the Order
of the Commission, below.
ORDER
The agency shall, within fifteen (15) days of its receipt of this
decision, issue a final decision determining petitioner's entitlement to
compensatory damages, together with appropriate appeal rights. The agency
shall also provide a copy of its final decision to the compliance officer
referenced below.
The agency shall provide a detailed explanation of the adjustments made
to the re-calculation of back pay, in particular with reference to the
deductions in petitioner's earnings for Health Benefits and Union Dues.
Within fifteen (15) day of receipt of this decision, the agency shall
request that petitioner provide documentation regarding his health
insurance coverage during his interim employment. Petitioner shall
provide such documentation within thirty (30) days of receipt of the
agency's request. Based on petitioner's submission, the agency shall
make any changes, if necessary, to the deduction of $ 2,771.38 from
petitioner's earnings for Health Benefits.
The agency is directed to obtain all documentation necessary for a
determination regarding the propriety of the deduction of union dues
from petitioner's back pay award. This documentation shall include
evidence that petitioner is a member of the union, that the agency
routinely deducts union dues from the pay of its employees who are
union members and that union dues were deducted from petitioner's pay
prior to his removal. Thereafter, if the agency determines that it
must recalculate petitioner's back pay award in view of the information
regarding union dues it shall notify petitioner of its new calculations.
The agency shall then inform petitioner of its re-calculation of back
pay, within sixty (60) days of receipt of this decision. If the agency
determines that it owes petitioner back pay and 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
forty-five (45) calendar days of the date the agency determines the
amount it believes to be due. Petitioner may petition for enforcement
or clarification of the amount in dispute.
The agency shall submit a report of compliance to the Compliance
Officer, as noted below, which shall include all the above calculations,
photocopies of any payments made, and its final decision regarding
compensatory damages.
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.
PETITIONER'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
September 25, 2002
__________________
Date