01a44627
09-14-2005
Musheerah Ali, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Musheerah Ali v. United States Postal Service
01A44627
September 14, 2005
.
Musheerah Ali,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A44627
Agency No. 1C-443-0054-00
Hearing No. 220-A1-5076X
DECISION
Complainant timely initiated an appeal alleging that the agency failed to
comply with the terms of a final action concerning her equal employment
opportunity (EEO) complaint of unlawful employment discrimination in
violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation
Act), as amended, 29 U.S.C. � 791 et seq. The appeal is accepted pursuant
to 29 C.F.R. � 1614.504.
The record reveals that, between December 1992 and December 1999,
complainant held intermittent temporary appointments as a casual clerk
at an Ohio facility of the agency. In March 2000, complainant applied
for another casual appointment with the agency, but the agency found
complainant �medically unsuitable� for such an appointment. Believing
she was a victim of discrimination, complainant initiated EEO contact
and, subsequently, filed a formal complaint alleging that the agency
discriminated against her on the bases of disability (degenerative knee
disease) and reprisal for prior EEO activity when it failed to select
her for a casual appointment, due to medical restrictions.
The agency completed an investigation on the matter and, subsequently,
complainant requested a hearing before an EEOC Administrative Judge (AJ).
Following a hearing, the 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,<1>
(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<2>.
The agency issued a final order implementing the AJ's findings.
Complainant filed the instant appeal.
On appeal, complainant states that the agency failed to comply fully with
the AJ's remedial order. Specifically, complainant states 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 response, the agency provided documentation indicating that it (1)
conducted four hours of �Reasonable Accommodation Training� on July
29 and 30, 2003 for nine Human Resources' (HR) staff members and an HR
Manager; (2) from April 18, 2003 through June 17, 2003, posted a Notice to
Employees indicating that the Commission found that the agency violated
Title VII of the Civil Rights Act of 1964; (3) awarded complainant a
grade 7, temporary casual appointment effective July 14, 2003, on Tour I
with moderate restrictions of �no lift[ing] greater than sixty pounds,
no full squatting, no kneeling [or] climbing ladders, and limit[ed]
prolonged walking/standing<3>;� (4) awarded complainant back-pay for
casual appointments for March 23, 2000 through June 30, 2000, July 7,
2000 through September 30, 2000, October 13, 2000 through November 9,
2000, January 19, 2001 through March 31, 2001, April 13, 2001 through
June 30, 2001, July 6, 2001 through August 16, 2001, December 21, 2001
through December 31, 2001, January 4, 2002 through March 31, 2002,
April 12, 2002 through April 25, 2002, May 10, 2002 through June 30,
2002, July 5, 2002 through August 15, 2002, December 20, 2002 through
December 31, 2002, January 3, 2003 through January 16, 2003, January 31,
2003 through March 31, 2003, and April 11, 2003 through June 30, 2003 for
a total net back-pay award of $18,447.17; and (5) deducted �unemployment
compensation� of $5,309.00<4> and �outside earnings� of $34,607.90.
A review of the record establishes that the agency (1) conducted
reasonable accommodation training for Human Resources personnel in
July 2003, (2) posted a notice of a finding of discrimination in
April, May and June 2003 with a cite to the wrong violated statute,
(3) awarded complainant reinstatement to a casual clerk position with
a restriction on prolonged walking and standing, although her personal
physician stated otherwise, (4) awarded complainant total net back-pay
of $18,447.17 for fifteen time periods between March 2000 and July 2003,
and (5) may have deducted unemployment compensation.
The Commission finds that the agency complied substantially with the
remedies involved in (1) and (2) and we are unable to determine if the
agency complied with the remedies involved in (3) through (5). Regarding
(3), the agency failed to state why it applied a restriction on prolonged
standing and walking although complainant's physician stated otherwise
and what effect such restriction had on complainant's work assignments
and hours. As to (4), the agency failed to specify the number and exact
dates of casual appointments, e.g., clerk and mail-handler, as well as
holiday appointments, allowable under the applicable collective bargaining
agreement between March 2000 and complainant's reinstatement on July
14, 2003 or the criteria used to determine if an appointment applied
to complainant. With regard to (5), the agency submitted conflicting
information regarding the deduction of unemployment compensation and
failed to provide information regarding an erroneous double award payment,
pay period nine of 2003 through July 14, 2003, or lapses of time between
appointments for pay periods nine and sixteen of 2002 and pay period two
of 2003. Thus, we vacate the agency's decision as to (3) through (5)
and remand the matters to the agency in accordance with the Order below.
See 29 C.F.R. � 1614.504(c).
ORDER
The agency shall supplement the record with documentation regarding
its compliance with complainant's reinstatement and her back-pay award.
The agency shall provide an affidavit and/or other 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.
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 (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 petitioner 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 petitioner 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 petitioner 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.
ATTORNEY'S FEES (H0900)
If complainant has been represented by an attorney (as defined by
29 C.F.R. � 1614.501(e)(1)(iii)), he/she is entitled to an award of
reasonable attorney's fees incurred in the processing of the complaint.
29 C.F.R. � 1614.501(e). The award of attorney's fees shall be paid
by the agency. The attorney shall submit a verified statement of fees
to the agency -- not to the Equal Employment Opportunity Commission,
Office of Federal Operations -- within thirty (30) calendar days of this
decision becoming final. The agency shall then process the claim for
attorney's fees in accordance with 29 C.F.R. � 1614.501.
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 14, 2005
__________________
Date
1We note that the record suggests that appointments for casual clerks
and casual mail-handlers differ and, thus, the back-pay awarded in (3)
and (4) are not the same.
2We note that complainant filed an appeal regarding attorney's fees, which
was docketed as Ali v. U.S. Postal Service, EEOC Appeal No. 01A33805.
The Commission issued a decision on the matter on June 8, 2004.
3We note that the record contains a medical certificate, dated August 28,
2003, from complainant's physician indicating that she can walk or stand
eight of twelve hours per day.
4We note that an agency back-pay worksheet indicates that the agency made
a deduction for unemployment compensation. However, an agency letter
dated May 26, 2004 indicates that the agency did not deduct unemployment
compensation from complainant's back-pay award. The agency explained that
it informs the state of a back-pay award and the state determines if it
will attempt to collect reimbursement for unemployment compensation paid.