04990029
03-29-2000
) Petition No. 04990029
Peggy S. Puckett v. United States Postal Service
04990029
March 29, 2000
Peggy S. Puckett, )
Petitioner, )
) Petition No. 04990029
v. ) Appeal No. 01965253
) Hearing No. 130-92-8143X
) Agency No. 3D102992
)
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
(Southeast/Southwest Region), )
Agency. )
____________________________________)
DECISION ON A PETITION FOR ENFORCEMENT
By Petition dated December 14, 1998, the petitioner requested enforcement
of the Order set forth in Puckett v. USPS, EEOC Appeal No. 01965253
(September 24, 1998).<1> Pursuant to that Order, the Commission directed
the agency to comply with its April 20, 1993, final agency decision. The
Commission accepts this Petition for Enforcement pursuant to 29 C.F.R. �
1614.503. For the reasons set forth below, the Commission GRANTS the
petition.
BACKGROUND
At the time of the complaint, petitioner, who has a hearing disorder, was
employed by the agency as a Bulk Mail Clerk in the Bulk Mail Acceptance
Unit of the agency's Montgomery, Alabama postal facility. Her schedule
was 2:30 p.m. to 11:00 p.m. Petitioner requested an accommodation for
her disability, but instead the agency re-posted her job and awarded it
to another employee. Petitioner bid on and was awarded the position of
Distribution Clerk effective June 15, 1991, with the schedule of 1:30
p.m. to 11:00 p.m. Effective June 29, 1991, petitioner then successfully
bid on a Bulk Mail Clerk position with the hours of 4:30 p.m. to 1:00 a.m.
On October 5, 1991, she was reassigned to a Bulk Mail Clerk position
with the schedule 1:30 p.m. to 11:00 p.m.
At petitioner's request, a hearing was conducted by an EEOC Administrative
Judge (AJ) who determined that she was the victim of disability
discrimination. The agency adopted the AJ's findings in its April
20, 1993, final agency decision (FAD1), providing, in pertinent part,
that petitioner be awarded with "all retroactive rights and benefits"
and "backpay." Petitioner then filed an appeal with this Commission
claiming that the agency failed to comply with the terms of FAD 1.
In Puckett v. U.S. Postal Service, EEOC Appeal No. 01943477 (August 8,
1994), we determined that the record was inadequate to decide whether
the agency had complied with FAD 1, and Remanded the case back to the
agency for an investigation. The Commission also Ordered the agency to
comply with FAD 1 and to issue a final agency decision to document its
compliance with the Order.
Petitioner filed a Petition for Enforcement in May 1995, and in Puckett
v. U.S. Postal Service, EEOC Petition No. 04950021 (May 3, 1996),
we determined that the agency did not comply with the Order in EEOC
Appeal No. 01943477 because it failed to issue a final agency decision.
We Ordered the agency to issue a final agency decision setting forth:
specific determinations regarding each element of relief in the April 20,
1993 final agency decision; specific computations regarding backpay;
specific and complete descriptions of each item of corrective action;
an explanation of the reasoning used in these determinations; and appeal
rights to the Commission. The agency responded by issuing a final agency
decision on June 4, 1996.
Petitioner then appealed the June 4, 1996, final agency decision,
claiming that the award of backpay was inadequate,<2> and that she was
entitled to administrative leave and overtime pay for the variation
between her original work schedule (2:30 p.m. to 11:00 p.m.) and the
shifts she was required to work in her subsequent positions from June 15,
1991, to October 4, 1991. More specifically, petitioner argued that she
was entitled to administrative leave at a "straight time" rate for the
hours of 2:30 to 4:30 p.m. (which she would have worked had she retained
her original position) and an "overtime" rate for the hours after 11:00
p.m., resulting in pay for ten hours per day instead of the eight hours
she actually worked. In Puckett v. U.S. Postal Service, EEOC Appeal
No. 01965253 (September 24, 1998), we determined that petitioner's
requested remedy would have provided her with more compensation than
she would have received had the discrimination not occurred, and that
"overtime" pay was not warranted. However, we found that the agency
provided its employees with extra compensation for working outside of
their bid schedule ("out-of-schedule" pay),<3> and held that petitioner
was entitled to this as a remedy. Specifically, we ordered the agency to
issue a check to petitioner: "reflecting the appropriate out-of-schedule
pay for each shift she was required to work outside of her original 2:30
p.m. to 11:00 p.m. shift, commencing on June 15, 1991, and continuing
until such time as petitioner was returned to a Bulk Mail Clerk position
with her original schedule." The agency did not file a request to
reconsider this determination. The matter was subsequently assigned to
a Commission Compliance Officer and docketed as Compliance No. 06982056.
Petitioner has now again petitioned this Commission claiming that the
agency has not complied with the Order as set forth above. Specifically,
she claims that she is entitled to the amount of $2,480.04, plus interest,
for 170.42 hours of "out-of-schedule" pay, providing an annotated table
of "administrative leave" and "overtime" hours worked during the period at
issue, referencing applicable provisions in the agency's personnel rules
and regulations to support her calculations. This table reflects that the
agency owes her $1,161.19 in overtime pay, and $2,322.25 in administrative
leave, for a total of $3,483.44, less the amount of $1,003.40 the agency
has already paid. We note that the agency received notice regarding
the instant petition on March 5, 1999, but has not responded.
Our review of the instant record shows that, exclusive of petitioner's
exhibit table, there is no evidence indicating what amount was actually
issued to petitioner pursuant to the above Order, and no explanation
or calculations explaining the amount paid to petitioner. Because the
agency has failed to respond to the petition, there is no evidence or
argument of record to rebut petitioner's claim for the amount requested.
Therefore, we find that the agency has not complied with the Order set
forth in EEOC Appeal No. 01965253 regarding out-of-schedule pay to be
issued to petitioner as a remedy in this case.
Notwithstanding this finding, we note that petitioner has included in
her calculations amounts for "overtime" pay. As previously noted, in
EEOC Appeal No. 01965253, we specifically found that petitioner was not
entitled to overtime pay as part of the out-of-schedule pay remedy.<4>
Therefore, this amount is excluded. However, we find that petitioner
is entitled to the amount of administrative leave for out-of-schedule
hours which she has claimed, and which the agency has not challenged
($2,322.25), minus the amount already paid by the agency, as reflected
in her exhibit table ($1,003.40), for a total $1,318.85.
Accordingly, we GRANT the Petition for Enforcement requested by the
petitioner in this case, and we ORDER the agency to comply with the
Commission's Order in EEOC Appeal No. 01965253 by taking the following
corrective actions:
ORDER (C1199)
The agency is ORDERED to take the following remedial action:
To the extent that it has not already done so, within 15 days of the
date that this decision becomes final, we ORDER the agency to issue
petitioner a check in the amount of $1,318.85, plus interest dating back
to June 1991.
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 verifying
that the corrective action has been implemented.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K1199)
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 64
Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter
referred to as 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)(Supp. V 1993). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 64 Fed. Reg. 37,644, 37,659 (1999)
(to be codified and hereinafter referred to as 29 C.F.R. � 1614.409).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (R1199)
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:
March 29, 2000
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing. I certify that
the decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
_______________ __________________________
Date Equal Employment Assistant
1On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply to
all federal sector EEO complaints pending at any stage in the
administrative process. Consequently, the Commission will apply the
revised regulations found at 64 Fed. Reg. 37,644 (1999), where
applicable, in deciding the present appeal. The regulations, as
amended, may also be found at the Commission's website at WWW.EEOC.GOV.
2Petitioner also appealed the agency decision regarding the type of
accommodation it afforded her. However, this issue is not part of the
instant Petition and will not be addressed herein.
3Although according to the agency's personnel regulations certain
out-of-schedule pay scenarios can result in overtime pay, our decision
in this case specifically found that overtime pay was not an appropriate
remedy, and cannot be included in the out-of-schedule pay premium for
the purposes of designating a remedy in this case.
4In her petition, petitioner designated seven days with $154.56 of
"overtime" each (for a total of $1,081.92), plus an additional $77.27 of
overtime, for a grand total $1,159.19. We note that petition reflects
a mathematical error of +$2.00 in her grand total of $1,161.19.