0120062348
05-29-2008
Musheerah A. Ali, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Musheerah A. Ali,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01200623481
Agency No. 1C-443-0054-00
Hearing No. 220-A1-5076x
DECISION
On February 17, 2006, complainant filed the present appeal with the
Commission concerning her complaint of unlawful employment discrimination
under Section 501 of the Rehabilitation Act of 1973, as amended, 29
U.S.C. � 791 et seq.
Previously, complainant filed a formal complaint alleging that the agency
discriminated against her on the bases of disability (degenerative knee
disease) and in reprisal for prior EEO activity when it failed to select
her for a casual appointment, due to medical restrictions. Following a
hearing, an EEOC Administrative Judge (AJ) issued a decision finding
discrimination and awarding remedial relief. Specifically, the AJ ordered
the agency to: (1) reinstate complainant to a casual clerk position,
pending a medical assessment regarding her ability to perform the
essential functions of such position; (2) provide complainant reasonable
accommodation; (3) award complainant back-pay and benefits for the
maximum number of casual clerk appointments allowable under the applicable
collective bargaining agreement between March 2000, and her reinstatement
or a finding of medical unsuitability; (4) award complainant back-pay
for casual mail-handler appointments given to casual clerks between
March 2000, and her reinstatement or a finding of medical unsuitability;
(5) award complainant back-pay for 21-day holiday appointments between
March 2000, and her reinstatement or a finding of medical unsuitability;
(6) conduct EEO training for Human Resources associates, supervisors,
and managers of the facility at issue; (7) post a notice of the finding
of discrimination; and (8) award applicable attorney's fees and costs.
In a subsequent April 30, 2003 Order Entering Judgment, the AJ ordered
the agency to pay complainant $9.302.50 in attorney's fees and $58.10
in costs. The agency issued a final order on May 13, 2003, fully
implementing the AJ's finding of discrimination and the relief awarded.
On June 17, 2003, complainant filed an appeal from the agency's final
order. In a decision in EEOC Appeal No. 01A33805 (June 8, 2004),
the Commission affirmed the final agency order stating that the AJ's
ultimate finding, that unlawful employment discrimination was proven by
a preponderance of the evidence, is supported by the record. Further,
the Commission found no error in the remedies awarded. However,
the Commission found it not clear that the agency has complied with
all portions of relief set forth by the AJ and fully implemented by
the agency. As such, the Commission ordered the agency, if it had
not already done so, to comply with the order set forth in the AJ's
decision as implemented by the agency, including the payment of $9,302
in attorney's fees and $58.10 in costs.2 Furthermore, the Commission
ordered the agency to consider taking disciplinary action against the
personnel responsible for failing to hire complainant.
Thereafter on July 26, 2004, complainant filed a request for
reconsideration of the Commission's decision which was denied in EEOC
Request No. 05A41093 (August 18, 2004). The Commission noted that in
her request, complainant expressed concern that the Commission did not
review her arguments on attorney's fees and costs. The Commission noted,
however, that the arguments on attorney's fees and costs were reviewed,
but found not to be persuasive.
Meanwhile, on April 12, 2004, complainant submitted a supplemental
application for attorney's fees to the agency "for work spent during
the past year to obtain compliance with the final agency decision in
this matter." Specifically, complainant requested $5,860.00 in fees
for work done from April 4, 2003, through March 27, 2004. On June 7,
2004, the agency issued a final decision on complainant's supplemental
application for attorney's fees. The agency found complainant was
entitled to attorney's fees in the amount of $1,190.00 for work done from
October 15, 2003, through February 4, 2004. The agency gave complainant
appeal rights to the Commission.
Thereafter, complainant filed an appeal claiming that the agency failed
to comply fully with the AJ's remedial order. Specifically, complainant
stated that the agency: (1) failed to inform her whether it completed EEO
training for its Human Resources associates, supervisors, and managers;
(2) posted an employee notice of a finding of a discrimination that
cited the wrong statute; (3) reinstated complainant effective July 14,
2003, with an inappropriate work restriction on walking and standing
that was not removed until January 2004, which reduced her assignments
and hours; (4) failed to award complainant back-pay for all 90-day
casual mail-handler appointments during the relevant period; and (5)
committed errors in calculating her back-pay award, such as deducting
unemployment compensation that it deducted previously under "outside
earnings," rescinding most of a previous award stating that the payment
was erroneously doubled, failing to include pay period nine of 2003
through July 14, 2003, and including two week gaps rather than one week
gaps between appointments for pay periods nine and sixteen of 2002 and
pay period two of 2003.
In EEOC Appeal No. 01A44627 (September 14, 2005), the Commission found
that the agency complied substantially with the remedies involved in
(1) and (2) and was unable to determine if the agency complied with the
remedies involved in (3) through (5). Thus, the Commission ordered
the agency to supplement the record with documentation regarding its
compliance with complainant's reinstatement and her back-pay award.
Specifically, the agency was ordered to provide documentary evidence that
clearly and concisely indicates: (a) why an additional medical restriction
of "limited prolonged walking/standing" was placed on complainant's
reinstatement and how such restriction affected her work assignment and
hours; (b) the maximum number and dates of casual appointments allowable
under the applicable collective bargaining agreement between March 2000
and July 2003; (c) which casual appointments applied to complainant;
(d) the criteria used to determine appointment applicability; (e)
whether it rescinded compensation to correct an error in complainant's
back-pay award and, if so, the details of the rescission; (f) whether
it deducted unemployment compensation from complainant's back-pay award
and, if so, the amount of such deduction; (g) the exact pay periods
for which complainant received back-pay compensation; and (h) lapses
in casual appointments between March 2000 and July 2003, and the reason
for such lapses. Additionally, the Commission's decision, in an Order,
stated that complainant was entitled to attorney's fees for the work
incurred in the processing of the complaint.
On October 14, 2005, complainant's attorney submitted an application
for attorney's fees pursuant to the Commission's decision in EEOC
Appeal No. 01A44627. Complainant noted that her application for fees
"includes time and expense incurred in support of compliance with
the remedial order, from April 2003, to the present, including work in
support of EEOC Appeal No. 01A44627." Specifically, complainant claimed
entitlement to attorney's fees totaling $11,630.55 for work done from
April 4, 2003, through October 14, 2005. Complainant noted the agency
paid $1,190.00 towards this balance and stated that the remaining total
due was $10,440.55.
On February 3, 2006, the agency submitted its "Implementation of the
Commission's Decision" and on February 16, 2006, the Commission terminated
compliance for EEOC Appeal No. 01A44627.
On February 17, 2006, complainant submitted the present appeal claiming
that the agency failed to address the attorney's fees issues raised.
Complainant noted that in accordance with the Commission's decision in
EEOC Appeal No. 01A44627 (September 14, 2005), she submitted a petition
for attorney's fees on October 15, 2004. Complainant notes that the
agency never addressed the October 15, 2004 petition for attorney's fees.
Complainant also claims she is due attorney's "fees for the period prior
to April 2004" which she notes was "raised by the previous appeal."
Complainant also states that in her July 2004 appeal, she challenged
the agency's non-compliance as well as the agency's decision on her
application for attorney's fees for the period of April 2003, through
March 2004. Moreover, complainant also requests to be paid for all
additional attorney's fees and costs incurred as this matter proceeds.
Second, complainant states that the agency imposed unjustified
restrictions of "no standing/walking" on her and claims that the
agency unreasonably delayed in correcting that error. Thus, complainant
requests to be compensated for all hours of work that she would have been
assigned absent the unjustified restriction. Complainant notes that
the medical assessment was completed, pursuant to the AJ's decision,
on May 27, 2003. Complainant states that neither she nor her attorney
were provided a copy of the assessment despite requests, and explains
that she had no reason to challenge the medical assessment until after
she was reinstated with limited job assignments. Complainant notes
the agency medical examiner imposed a restriction to "limit prolonged
walking and standing" in addition to "no lifting over 60lb, no full
squatting, no keeling or climbing ladders." Complainant states that
she agreed with the latter restrictions; but, she claims there is no
justification for the imposition of the standing/walking restriction, nor
for the delay in removing the inappropriate restriction. Specifically,
complainant notes that the May 2003 Functional Capacities Examinations
states that complainant was not tested for "Sustained Position - Sit,
Stand" and notes "Client Estimation" was listed as "Unrestricted."
Complainant notes that six weeks after the medical assessment, she was
offered an assignment on Tour 1 and was told there was no assignments
within her restrictions on Tour 3. Complainant notes that on September
2, 2003, she provided the agency a statement from her doctor noting that
"She can stand and walk for 8 hours out of a 12 hours day" and stated
the agency did not change her assignment for four months.
Finally, complainant challenges the agency's determination on back pay due
to her. Specifically, complainant states there is no documentation showing
why she was not paid for pay periods 9/2002 and 2/2003. Complainant notes
that the statement by the Labor Relations Specialist notes that causal
employees may receive two ninety-day appointments per craft each year,
plus a Christmas appointment of twenty-one days in December and notes
that during a 359-day period, all causal employees must have a six-day
break in service. Complainant claims that the statement by the Labor
Relations Specialist does not explain why a fourteen-day gap in pay
period 9/2002 and 2/2003 was needed. Complainant also states there was
no explanation why she received no compensation past pay periods 9/2003.
Moreover, complainant states that the agency owes her additional back
pay for pay periods 10/2003 through her July 14, 2003 reinstatement.
In response to complainant's appeal, the agency states it has shown
full compliance with the Commission's previous decisions. The agency
requests that complainant's appeal be dismissed.
Attorney's Fees
The agency contends, and complainant does not dispute, that she was
paid $9,302.50 in attorney's fees and $58.10 in costs as specified in
the AJ's April 30, 2003 decision. However, complainant states that she
is due additional attorney's fees in this case.
Upon review, we find that to the extent complainant is requesting
attorney's fees for work done prior to the AJ's April 30, 2003 decision,
she is not entitled to fees for this time period. We note the issue of
attorney's fees for work done during this period was decided by the AJ's
April 30, 2003 decision and then unsuccessfully challenged by complainant
in EEOC Appeal No. 01A33805 (June 8, 2004), req. for recons. den. 05A41093
(August 18, 2004). Further, since complainant was not considered a
prevailing party in EEOC Appeal No. 01A33805 or EEOC Request No. 05A41093,
she is not entitled to attorney's fees for work done as a result.
With regard to her claim for attorney's fees for work done in conjunction
with her April 12, 2004 fee petition for $5,860.00 requesting fees for the
period of April 4, 2003, through March 27, 2004, we note that the agency
issued a final decision on June 7, 2004, and paid complainant $1,190.00
in attorney's fees as a result. The record reveals that complainant
challenged the agency's failure to pay the remaining balance requested
before the Commission in her request for reconsideration in EEOC Request
No. 05A41093. In a footnote in EEOC Request No. 05A41093 (August 18,
2004), the decision notes that the Commission reviewed "her arguments
on attorney's fees and costs" but found them "not to be persuasive."
Thus, we find a challenge to the issue of attorney's fees requested in
the April 12, 2004 fee petition to be res judicata.
We now address complainant's claim that the agency failed to pay her the
attorney's fees requested in her October 14, 2005 fee petition. Despite
the fact that the Commission's decision in EEOC Appeal No. 01A44627
(September 14, 2005), included an Order for Attorney's Fees, we find
complainant was not a prevailing party in that appeal and thus, was
not entitled to attorney's fees for work done in connection with that
appeal.
Medical Assessment
Pursuant to the AJ's April 30, 2003 Order, as fully implemented by
the agency, the agency was to reinstate complainant to a casual clerk
position, pending a medical assessment regarding her ability to perform
the essential functions of such position. The record reveals that on
March 5, 2003, complainant was sent for a pre-employment examination at
US Healthworks (contracted medical provider) during which a Registered
Nurse interviewed complainant and documented her responses indicating her
ongoing restrictions of not lifting over 50 pounds, right knee weakness,
stiffness and pain since her right knee injury in 1987. Thereafter,
complainant's case was placed on hold for 14 days so complainant could
provide documentation from a treating physician. No medical information
from complainant's physician was provided and the file was closed.
Thereafter, complainant went underwent a focused physical examination
with a physician on May 22, 2003. The May 22, 2003 x-ray report noted
complainant had "moderate degree of lateral knee joint osteoarthritic
changes" and on May 27, 2003, the physician found complainant to be a
"moderate risk" and noted a restriction of "limit prolonged walking
and standing."
Thereafter, on September 2, 2003, the agency received a note from
complainant's Orthopedic Surgeon dated August 28, 2003, stating that
"Pt examined by me today for Bilateral Knee DJD. She can stand and walk
for 8 hrs out of a 12 hrs day." Complainant's file was then reviewed
by the Associate Area Medical Director who on January 2, 2004, indicated
that complainant may return to work "with the restriction stated in the
August 8, 2003 correspondence from her[] orthopedic surgeon . . . to
limit standing/walking to 8 hours in a 12 hour day."
Upon review, we find that the agency has provided documentary evidence
showing why it provided an additional medical restriction of "limited
prolonged walking/standing" on her reinstatement. Specifically, the
agency showed that in the absence of medical evidence from complainant's
physician, it relied on the March 5, 2003 medical assessment done by
the Registered Nurse (as described to the RN from complainant) and the
subsequent examination and x-ray done by the physician on May 22, 2003, to
impose the restriction of "limited prolonged walking/standing." We note
that once complainant provided a statement from her Orthopedic Surgeon,
the agency undertook to review her medical file. Ultimately, on January
2, 2004, the agency released complainant to return to work in accordance
with the restrictions indicated by her Orthopedic Surgeon. While we find
that that the agency reasonably did not reinstate complainant prior to
September 2, 2003, it is not clear why the agency waited approximately
four months until January 2, 2004, to reinstate complainant after
receiving the medical information showing reinstatement was appropriate.
We shall remand this issue so that the agency can explain the four-month
delay in reinstatement.
Back Pay
We note complainant also claims the agency failed to comply with the
Commission's previous decisions concerning back pay. Specifically,
complainant claims that the agency failed to show why she was not paid for
Pay Period 9/2002 and 2/2003. The agency provides a copy of a December
5, 2005 statement from a Labor Relations Specialist noting that in
accordance with the National Agreement, casual appointments are limited
to two ninety-day appointments per year, plus a Christmas appointment of
twenty-one days in the month of December. The Labor Relations Specialist
states that during a 359-day period all casual employees must have a
six-day break in service and notes that since complainant was paid
for four casual appointments per year in 2002 and 2003 (two in the
clerk craft and two in the mail handler craft), her required breaks in
service between appointments occurred in pay period 9/2002 and 2/2003.
However, complainant claims that the statement by the Labor Relations
Specialist does not explain why in her case a fourteen-day gap in pay
period 9/2002 and 2/2003 was needed when the Specialist states that
only a six-day break in service was required by the National Agreement.
We note the record does not contain a copy of the relevant portions of
the National Agreement cited by the Labor Relations Specialist; nor does
the agency specifically address complainant's contention that even if a
break in service was required, it should have been a six-day as opposed
to a fourteen-day break. Thus, this issue is remanded in accordance
with the Order herein.
With regard to complainant's contention that she was not paid for pay
period 9/2003, we note the record shows that complainant was paid for 40
hours of regular work and 30 hours of night work in pay period 9/2003.
We note complainant does not show that the amount calculated by the
agency for pay period 9/2003 was in error.
Finally, complainant claims that the agency owes her additional back
pay for pay periods 10/2003 through her July 14, 2003 reinstatement.
We note the agency has shown that it paid complainant back pay for pay
periods 3/2003 - 9/2003; however, it failed to address whether complainant
was entitled to back pay for pay period 10 of 2003 through July 14, 2003.
Accordingly, this issue will be remanded for further action in accordance
with the Order listed herein.
Thus, we find the agency has shown it is in compliance with the attorney's
fees relief as stated in the AJ's April 30, 2003 decision and fully
implemented by the agency. However, we are unable to determine whether
the agency is in full compliance with the back pay and reinstatement
relief ordered in the AJ's decision and the issue of back pay and
reinstatement is REMANDED for further processing.
ORDER
The agency shall supplement the record with documentation regarding its
compliance with complainant's back pay award and reinstatement as stated
in the AJ's April 30, 2003 decision and fully implemented by the agency.
The agency shall provide an affidavit and/or other documentary evidence
that clearly and concisely indicates: (1) the lapses of time between
appointments for pay periods 9 of 2002 and 2 of 2003, including a copy
of the relevant provision of the relevant collective bargaining agreement
specifying the required breaks in service between appointments for causal
appointments; and (2) whether complainant was entitled to back pay for pay
period 10 of 2003 through July 14, 2003. The agency shall also provide
evidence addressing why the agency waited approximately four months until
January 2, 2004, to reinstate complainant after receiving the medical
information on September 2, 2003, showing reinstatement was appropriate
Within 60 days of the date this decision becomes final, the agency shall
issue a new final decision addressing whether it has complied with the
back pay relief and reinstatement relief specified in the AJ's April 30,
2003 decision.
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 actions in compliance with this Order.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0408)
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 (M0408)
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 (R0408)
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 (Z0408)
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
May 29, 2008
__________________
Date
1 Due to a new data system, this case has been redesignated with the
above-referenced appeal number.
2 Although the Commission's decision stated attorney's fees should be
paid in the amount of "$9,302", we note that the AJ's decision as fully
implemented by the agency specified complainant was entitled to payment
of attorney's fees in the amount of $9,302.50.
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0120062348
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036