04990026
08-07-2000
) Petition No. 04990026
Kathy L. Teal v. United States Postal Service
04990026
August 7, 2000
Kathy L. Teal, )
Petitioner, )
) Petition No. 04990026
v. ) Appeal No. 01960092
)
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
)
DECISION ON PETITION FOR ENFORCEMENT
Kathy L. Teal (hereinafter referred to as petitioner) filed a petition
with the Equal Employment Opportunity Commission for enforcement of the
Order set forth in Kathy L. Teal v. William J. Henderson, Postmaster
General, United States Postal Service, EEOC Appeal No. 01960092 (June
18, 1998). Pursuant to that Order, the Commission directed the United
States Postal Service (hereinafter referred to as the agency) to redress
petitioner following a finding that agency officials had discriminated
against petitioner on the bases of race/color and reprisal in violation of
Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. �2000e
et seq. This petition for enforcement is accepted by the Commission
pursuant to 29 C.F.R. �1614.503.
The issue presented herein is whether the agency has complied with the
provisions of the Order in EEOC Appeal No. 01960092.
In EEOC Appeal No. 01960092 (June 18, 1998), the Commission found that
the agency discriminated against petitioner on the bases of race/color
and reprisal when the Postmaster at the agency's Livermore, California,
facility "subjected her to harassment in order to force her from her
position."<1> p. 2. In remedy, the Commission directed the agency
to take certain actions. As stated below, we find that the agency has
complied with our Order, in part, and failed to comply, in part.
The agency was directed, inter alia, to (1) submit a report of compliance,
(2) post a notice of compliance, (3) provide attorney's fees, if any, and
(4) consider petitioner's claim for compensatory damages. Based on the
documents before us, we find that the agency has complied with (1)-(4).
The Commission received the final portions of the agency's report of
compliance on July 30, 1999, after its inquiry to the agency.<2> The
agency submitted documentation showing that it posted the Commission's
notice for two months from October 6, 1998. The record does not show,
and apparently petitioner has not sought, a payment of attorney's fees.
Finally, the agency considered petitioner's claim for compensatory
damages, issuing a final decision on October 27, 1998. Petitioner has
filed an appeal from that decision, presently pending before the
Commission as EEOC Appeal No. 01991097.
In addition, the agency was directed to comply with the following
provisions:
A. Within 30 days from the date this decision becomes final, the agency
shall assign (petitioner) to an EAS-16 supervisory position retroactive
to December 1993, when (petitioner) left the Livermore facility, to
include all seniority and other rights and benefits of employment.
The agency shall offer (petitioner) assignment to a position and
location agreeable to (petitioner) and not under the supervision of
the PM. If (petitioner) desires to return to the Livermore facility,
the agency shall assign the PM out of the facility.
B. The agency shall determine the appropriate amount of back pay,
including interest, and other benefits due (petitioner), pursuant to 29
C.F.R. �1614.501, no later than sixty (60) calendar days after the date
this decision becomes final.
D. Within 60 days of the date this decision becomes final, the agency
shall restore any used sick leave and reimburse (petitioner) for all
annual leave and LWOP taken by (petitioner) that was due to the PM's
discriminatory conduct.
E. The agency is directed to provide comprehensive EEO training to the PM
with regard to his supervisory responsibilities under the equal employment
opportunity laws. The training shall address his responsibility with
respect to elimination of discrimination in the federal workplace.
The training shall place special emphasis on prevention and elimination
of discrimination on the bases of race/color and reprisal.
It is to these provisions that petitioner directs her petition, and we
discuss the agency's compliance with Paragraphs A, B, D, and E, seriatim.
Paragraph A: Petitioner's Reinstatement
In a letter dated May 21, 1999, the agency informed the Commission that
petitioner had been assigned to the Fremont Post Office. Inasmuch as
petitioner stated that she sought one of two positions at Fremont, we
find that the agency has complied with a portion of this provision of
our Order. In addition, however, our Order required that petitioner
be reinstated to an EAS-16 position, with all seniority benefits and
all other applicable rights and benefits. The agency's report does
not indicate when petitioner was reassigned, whether the position was
a permanent EAS-16 assignment, and if petitioner received all benefits,
including seniority rights. If petitioner was not assigned to a permanent
EAS-16 position within 30 days from the date that the decision became
final, the agency must compensate her for any lost wages from that date
to the date of her permanent assignment. On remand to the agency, we
will direct that it conduct a supplemental investigation to determine
when petitioner was assigned to a permanent position and whether she
obtained all rights and benefits.
Paragraph B: Back Pay
The agency was directed to pay back pay, including interest, to
petitioner. On June 10, 1999, the agency explained that it had made
the following payments to petitioner for back pay:
(pay period) GROSS PAY NET PAY
(less taxes, SSA, and other deductions)
PP 5-99 $ 9,559.53 $ 5,266.79
PP 6-99 15,373.24 9,339.75
PP 7-99 17,292.56 10,398.04
TOTAL $ 42,225.33 $ 25,004.58<3>
The agency's documentation does not reveal whether interest was included
in the money paid for back pay to petitioner. A statement found
elsewhere that petitioner was "entitled to interest on the LWOP only"
raises a further question about an interest payment. Because the record
is unclear, we will remand this matter to the agency to clarify whether
interest was included in the back pay payments.<4>
Paragraph D: Restoration of Leave
The agency was directed to restore any sick leave used and reimburse
petitioner for all annual leave and leave without pay (LWOP) taken due
to its discriminatory conduct. It appears that, as of petitioner's July
1999 paycheck, the agency has restored 143.36 hours of annual leave and
1,091.39 hours of sick leave. With regard to the LWOP, the agency paid
petitioner $3,894.39, plus $1,651.57 interest, representing 179 hours
of LWOP; this payment includes a merit increase of 2%. This appears to
coincide with petitioner's estimation of leave used. Consequently, we
find that the agency has complied with this provision of the Commission's
Order.
Paragraph E: Supervisory Training
In our decision, we directed that the Postmaster (Livermore) (PM) be given
"comprehensive EEO training" with "special emphasis on prevention and
elimination of discrimination on the bases of race/color and reprisal."
The submission by the agency shows that the PM took an 8-hour course
on June 3, 1998, entitled "Conflict/Dispute--A Positive Approach."
Another submission shows three hours of training on January 20, 1999, with
no subject identified. In the first instance, we note that the course
taken in June 1998 preceded our decision herein and cannot constitute
compliance with the subsequent order. Further, it is questionable whether
the subject matter concerned any EEO issues. Because it does not appear
that the PM has been provided any EEO-related training as directed by our
Order, we conclude that the agency has not complied with this provision.
We therefore remand this provision and redirect the agency to provide
EEO-related training to the PM.
CONCLUSION
Based upon a review of the record herein, the submissions of the parties,
and for the foregoing reasons, the Commission finds that the agency has
failed to comply with Paragraphs A, B, and E, of the Order set forth in
EEOC Appeal No. 01960092 (June 18, 1998). Therefore, the Commission
orders the agency to submit a further report of compliance or, if it
has not done so, to comply with our Order, below.
ORDER
The agency is ORDERED to conduct a supplemental investigation
in accordance with this decision to determine whether it has fully
complied with Paragraphs A, B, and E, of the Order set forth in EEOC
Appeal No. 01960092 (June 18, 1998). If the agency determines that it
has not complied with Paragraphs A, B, and E, it is directed to do so.
As part of its supplemental investigation, the agency is directed to
contact petitioner and respond to her concerns regarding implementation
of Paragraphs A, B, and E. The agency's supplemental investigation
should include, but not be limited to, the following information.
1. The agency shall explain when petitioner was assigned to a permanent
EAS-16 position, whether it was acceptable to her, and what retroactive
rights and benefits accrued to her. If petitioner was not assigned
within thirty (30) days of the date the previous decision became final,
the agency should identify all job assignments and pay levels worked by
petitioner since that date, and what remedial action it intends to take
to compensate petitioner for its delay.
2. The agency shall identify all moneys paid to petitioner in back
pay wages, all amounts withheld and the reasons therefore, and clarify
whether interest was included in each back pay payment to petitioner.
3. The agency shall explain what EEO training it has provided to the PM
and submit the syllabus for each training event. If the agency determines
that it has not provided any EEO training to the PM, it shall comply
with Paragraph E of our Order within sixty (60) days of the date this
decision is received. Further, the comprehensive EEO training provided
to the PM shall place special emphasis on prevention and elimination of
discrimination on the bases of race/color and reprisal. As part of its
submission to the EEOC's Compliance Officer, the agency shall submit
the syllabus for each training event.
D. If petitioner incurred any attorney's fees in processing this petition
for enforcement, the agency shall award such fees to petitioner, with
a copy of such payment to the EEOC's Compliance Officer.
Upon completion of its supplemental investigation, the agency must provide
the petitioner with a copy of the supplemental record. The agency must
submit its supplemental report to the Compliance Officer, as referenced
below. The petitioner may, within fifteen (15) days of receipt of the
supplemental record, submit a statement concerning the supplemental
record to the Compliance Officer.
ATTORNEY'S FEES (H1199)
If complainant has been represented by an attorney (as defined by 64
Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter
referred to as 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.
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 petitioner. If the agency does not comply with the Commission's
order, the petitioner 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 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 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)(Supp. V 1993). If the petitioner
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).
STATEMENT OF PETITIONER'S RIGHTS ON PETITION FOR ENFORCEMENT
PETITIONER'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 receiv 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:
08-07-00
Date Carlton 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
1The Commission affirmed the Recommended Decision of the Administrative
Judge in EEOC Hearing Nos. 370-95-2504X and 370-95-2505X.
2If the agency has not already done so, it should immediately forward
to petitioner a copy of all documents submitted to the Commission's
Compliance Officer.
3In accordance with our Order, petitioner was properly paid this
?undisputed amount.? See Paragraph B.
4Similarly, if interest was not included in the back pay payment,
petitioner would be entitled to additional interest. Petitioner is
advised that the interest rate is based on rates established by the
Department of the Treasury.