0420070021
03-05-2008
Percy J. Brown, Petitioner, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Percy J. Brown,
Petitioner,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Petition No. 0420070021
Appeal No. 0120054928
Agency No. 1H361001104
DECISION ON A PETITION FOR ENFORCEMENT
On July 27, 2007, the Equal Employment Opportunity Commission (EEOC or
Commission) docketed a petition for enforcement to examine the enforcement
of an order set forth in Percy J. Brown v. United States Postal Service,
Appeal No. 0120054928 (June 27, 2007). 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 to reinstate him into the proper position, failed to comply with
the order to conduct a supplementary investigation into his entitlement
to compensatory damages, and failed to properly calculate the back pay
award.
The record reveals complainant was hired by the agency in December 2003,
to serve a temporary appointment. Complainant was reappointed as a casual
employee in January 2004 and again in March 2004. His third appointment
was to end in June 2004, when he was scheduled to take a six-day break,
and return to work as a Casual Mailhandler on June 11, 2004.
In May 2004, complainant applied and tested for the following career
positions: Mark-Up Clerk, Automated Mail Handler, Clerk Carrier,
Rural Carrier and Flat Sorter Machine Operator. Complainant was called
to interview for a Rural Carrier Associate position. Additionally,
he underwent a finger print check, drug testing and a driver's record
check. On May 28, 2004, complainant was informed that he needed to
undergo a physical examination with an orthopedic surgeon on June
8, 2004. Complainant underwent a medical examination. On June 11,
2004, complainant reported to work as a Casual Mailhandler as ordered.
The Manager of Distribution Operations met complainant at the time clock
and informed him that the Orthopedic Surgeon stated that complainant could
not stand or walk for more than four hours, and accordingly, because of
his disability, complainant could not do either job. On June 11, 2004,
complainant was terminated for "Failure to meet Medical Restrictions
for the position in which selected, i.e, Medical Restrictions indicate
you cannot stand/walk for over four (4) hours per day."
Petitioner filed a complaint in which he alleged that the agency
discriminated against him on the basis of disability (flat feet)
in violation of Section 501 of the Rehabilitation Act of 1973
(Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq. The agency's
final decision found complainant was not subjected to discrimination.
Petitioner appealed the agency's final decision to the Commission,
and in Appeal No. 0120054928, the Commission found that complainant
was a qualified individual with a disability. The Commission reversed
the agency's finding of no discrimination, and found that complainant
had established, by a preponderance of the evidence, that he had been
subjected to discrimination.
As relief, the order specified, in pertinent part, that:
1. Within thirty (30) days of receipt of this decision, the agency shall
offer complainant reinstatement to his position of Automation Clerk
or the Mailhandler position, or a substantially equivalent position,
retroactive to June 11, 2004.....
2. The agency shall determine the appropriate amount of back pay, with
interest, and other benefits due complainant, pursuant to 29 C.F.R. �
1614.501, no later than sixty (60) calendar days after the date this
decision becomes final. For the purposes of calculating back pay, the
agency shall assume that complainant worked at least the next appointment
period; and
3. Within thirty (30) days of receipt of this decision, the agency
shall conduct a supplemental investigation on the issue of complainant's
entitlement to compensatory damages and shall afford him an opportunity
to establish a causal relationship between the prohibited termination
and any pecuniary or non-pecuniary losses.
The matter was assigned to a Compliance Officer and docketed as Compliance
No. 0620070751 on July 9, 2007.
On August 4, 2007 and September 17, 2007, petitioner submitted a Petition
for Clarification/Enforcement. Petitioner contends that the agency
failed to place him back into a substantially equivalent position.
He claims that he should be placed into the career status Rural Carrier
position for which he applied, and not the Casual Clerk position he was
offered by the agency following receipt of our decision. Furthermore,
complainant contends that the agency has not yet investigated his
entitlement to compensatory damages in violation of the order, and did
not properly calculate his back pay award.
In accordance with 29 C.F.R. � 1614.503(c), the Commission may issue a
clarification of a prior decision. A clarification cannot change the
result of a prior decision or enlarge or diminish the relief ordered
but may further explain the meaning or intent of the prior decision. 29
C.F.R. � 1614.503(c).
When discrimination is found, the agency must provide the petitioner with
an equitable remedy that constitutes full, make-whole relief to restore
him as nearly as possible to the position he would have occupied absent
the discrimination. See, e.g., Franks v. Bowman Transportation Co.,
424 U.S. 747, 764 (1976); Albemarle Paper Co. v. Moody, 422 U.S. 405,
418-19 (1975); Adesanya v. Postal Service, EEOC Appeal No. 01933395
(July 21, 1994).
The record reveals that just prior to complainant's termination,
complainant worked in Automation as a Clerk. On June 3, 2004, complainant
was given a six-day break from his appointment, and was told to report
to a Mailhandler position on June 11, 2004. When he arrived at work
on June 11, 2004, he was terminated.
As part of its obligation to provide make whole relief, on or about
August 2, 2007, the agency offered complainant the position of Clerk
Casual, which it claims is the position he occupied at the time of his
termination. The agency attached a position description which described
the functional purpose of the position as follows:
Performs mail handling, mail processing, mail delivery, mail collection,
mail transportation and custodial functions, or a combination of such
duties on a supplemental basis.
On August 8, 2007, complainant declined the position, stating that it
was further evidence of retaliation and violated the Vietnam Era Veterans
Readjustment Assistance Act.
The record reveals that on June 11, 2004, complainant occupied a Casual
Mailhandler position. See, Report of Investigation, Affidavits C and D.
The Casual Mailhandler position description describes the functional
purpose of the position as one which loads, unloads and moves bulk mail,
and performs other duties incidental in the movement and processing of
mail.1 Because complainant was no longer working in the Clerk position at
the time of the termination, we find we need to clarify our prior order,
and order the agency to place complainant into the Casual Mailhandler
position.
As for complainant's argument that he is entitled to the Rural Carrier
Associate position for which he applied, we disagree. The matter
which was adjudicated as the subject of the instant complainant
was complainant's termination from his Casual Mailhandler position.
Complainant did not ever establish that he was in fact selected for the
position of Rural Carrier Associate, only that his name was reached on a
hiring register for consideration of employment. The letter he received
from the agency asking him to appear for an interview specifically notes,
"this is not an offer of employment." (See Petition for Enforcement).
Furthermore, to the extent that complainant disagreed with the outcome
of the prior decision, or the type of relief ordered, he was entitled
to file a Request for Reconsideration with the Commission, but did not.
We now turn to complainant's remaining claims that the agency has
not complied with our order. In October 2007, complainant submitted
documentation indicating that he was in receipt of the agency back pay
award including interest. Complainant states the award falls short of
what he is owed. After a review of the record, we find the agency has
complied with our order with respect to back pay.
However, we find no evidence that the agency has conducted a supplementary
investigation into complainant's entitlement to compensatory damages.
Accordingly, the petition for enforcement is GRANTED as the record
reveals the agency has not complied with our order as clarified below.
ORDER (D0403)
The agency is ordered to take the following remedial action:
1. Within thirty (30) days of receipt of this decision, the agency shall
offer complainant reinstatement to his position of Casual Mailhandler,
or a substantially equivalent position, retroactive to June 11, 2004.
The offer shall be made in writing and include a written position
description. Complainant shall have 15 days from receipt of the offer to
accept or decline the offer. Failure to accept the offer within 15 days
will be considered a declination of the offer, unless the individual can
show that circumstances beyond his control prevented a response within
the time limit.
2. Within thirty (30) days of receipt of this decision, the agency
shall conduct a supplemental investigation on the issue of complainant's
entitlement to compensatory damages and shall afford him an opportunity to
establish a causal relationship between the prohibited termination and any
pecuniary or non-pecuniary losses. The complainant shall cooperate in the
agency's efforts to compute the amount of compensatory damages, and shall
provide all relevant information requested by the agency. The agency
shall issue a final decision on the issue of compensatory damages.
29 C.F.R. � 1614.110. The supplemental investigation and issuance of
the final decision shall be completed within sixty (60) calendar days
of the date this decision becomes final. A copy of the final decision
must be submitted to the Compliance Officer, as referenced below.
3. 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 calculation of back pay and other benefits due complainant,
including evidence that the corrective action has been implemented.
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.
COMPLAINANT'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
3/5/08
Date
1 The Mailhandler position description also does not, in any way,
indicate that custodial functions are a part of a Mailhandler's job.
??
??
??
??
2
0420070021
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
6
0420070021