Lorenzo R. Reid, Petitioner,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionSep 25, 2002
04A20003 (E.E.O.C. Sep. 25, 2002)

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