04A30043
06-16-2004
Ray N. Wright v. United States Postal Service 04A30043 06-16-04 .Ray N. Wright, Petitioner, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Ray N. Wright v. United States Postal Service
04A30043
06-16-04
.Ray N. Wright,
Petitioner,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Petition No. 04A30043
Request No. 05A20825
Appeal No. 01983904
DECISION
On April 1, 2003, Ray N. Wright (hereinafter referred to as petitioner)
filed a petition for enforcement of the Order set forth in Ray N. Wright
v. John E. Potter, Postmaster General, United States Postal Service,
EEOC Request No. 05A20825 (August 21, 2002) . Pursuant to that Order,
the Commission directed the United States Postal Service (hereinafter
referred to as the agency) to, among other things, compensate petitioner
for any loss of pay and benefits, and post notice of the finding of
discrimination following a finding that agency officials had discriminated
against him on the basis of his disability in violation of � 501 of
the Rehabilitation Act of 1973, as amended, 29 U.S.C. �791 et seq. This
petition for enforcement is accepted by the Commission pursuant to 29
C.F.R. � 1614.503.
ISSUE PRESENTED
The issue presented herein is whether the agency has complied with the
Order set forth in the previous decision.
BACKGROUND
The record in the case herein reveals that the Commission found that
petitioner had been subjected to disability (knee injury) discrimination
when he was reassigned from full time regular status to a part time
flexible Clerk position. Wright v. United States Postal Service, EEOC
Appeal No. 01983904 (May 2, 2002), request for reconsideration denied,
EEOC Request No. 05A20825 (August 21, 2002). As relief, the Commission
ordered the agency to retroactively assign petitioner to a full time
regular modified Carrier Technician position, provide petitioner with
reasonable accommodation, compensate petitioner for any lost pay and
benefits, conduct training for the responsible officials, consider
appropriate disciplinary action, and post notice of the finding of
discrimination.<1> The Commission subsequently denied the agency's
request for reconsideration. Wright v. United States Postal Service,
EEOC Request No. 05A20825 (August 21, 2002).
Petitioner subsequently filed a petition for enforcement, stating that
the agency had not taken action with regard to the issue of back pay.
In addition, petitioner noted that the agency had not posted the notice
of the finding of discrimination.
In its compliance report to the Commission concerning EEOC Request
No. 05A20825 (Compliance Action No. 06A30120), the agency indicated
that it had complied with the Commission's Order. The agency submitted
documentation showing that petitioner was reassigned to a full time
regular position effective May 24, 1997. The agency stated that
petitioner did not lose any pay due to the change in status to a part
time flexible position. The agency also included a training schedule
for the responsible official, and a statement regarding discipline,
as well as documentation showing that the agency paid attorney's fees
in the amount of $2602.50.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. � 1614.503(a) provides that a complainant may
petition the Commission for enforcement of a decision issued under the
Commission's appellate jurisdiction. In the case herein, the Commission
instructed the agency to compensate petitioner for any lost pay and
benefits, and post notice of the finding of discrimination. At issue is
whether the agency has fully complied with the Commission's prior Order.
Petitioner asserted that the agency has taken no action to calculate the
amount of back pay which he should receive. The record shows, however,
that complainant has been in a leave or leave without pay status since
pay period 10 of 1997 due to a psychiatric condition. Specifically,
complainant was diagnosed with post traumatic stress disorder and
instructed by his physician not to return to work. It is noted that,
pursuant to the provisions of 29 C.F.R. � 1614.501(b)(ii), back pay is
computed in the manner prescribed by 5 C.F.R. � 550.805. In computing
the amount of back pay, 5 C.F.R. � 550.805(c)(1) prohibits an agency from
including in an award any period during which an employee was not �ready,
willing, and able� to perform his duties because of an incapacitating
illness or injury. See also Schnaidt v. Department of Veterans Affairs,
EEOC Petition No. 04970020 (April 2, 1998); Papas v. USPS, EEOC Petition
No. 04950029 (December 7, 1992). According to the record, petitioner
was off of work from April 24, 1997, until the time of his retirement in
May 2000. Petitioner submitted no evidence showing that he was ready,
willing, and able to return to work during that time, and, in fact, the
medical evidence shows that he remained totally disabled. Thus, we agree
with the agency that petitioner was not entitled to receive back pay.
With regard to the notice, petitioner submitted a letter from the
president of the union stating that she was unable to find the notice
posted at the facility on March 20, 2003, and was told that it had been
posted for 90 days then sent to the Labor Relations Office. A previous
union official stated that the Postmaster gave her a copy of the notice
which was taken down when the agency challenged the initial Commission
decision, and that she did not find the notice posted from December 2002
until March 2003. Nevertheless, the record includes a copy of the notice
of finding of discrimination which includes a handwritten statement
from the Postmaster and date stamps indicating that the notice was in
fact posted from December 2, 2002, until January 2, 2003, and again from
January 13, 2003, until March 13, 2003. In addition, the Manager of Labor
Relations stated that the Notice was originally posted from December 2,
2002, through January 9, 2003, and, after the agency realized that the
posting was to be for 60 days, it was again posted from January 13,
2003, through March 13, 2003. Accordingly, we find that the agency has
complied with the Commission's Order in EEOC Request No. 05A20825.
CONCLUSION
Based upon a review of the record herein, and the submissions of the
parties, and for the foregoing reasons, the Commission finds that
the agency has complied with the decision in EEOC Request No. 05A20825
(August 21, 2002). Therefore, the Commission denies petitioner's petition
for enforcement.
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S0900)
You have the right to file a civil action in an appropriate United States
District Court within ninety (90) calendar days from the date that you
receive this decision. 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. If you
file a request to reconsider and also file a civil action, 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
_____06-16-04_____________________________
Date
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 claimant, claimant's representative
(if applicable), and the agency on:
_________________________
Date
_________________________
1The agency was also ordered to conduct a supplemental investigation
to determine whether petitioner was entitled to compensatory damages.
Petitioner has appealed the agency's final decision on that issue, and
the claim is currently pending a decision by the Commission. EEOC Appeal
No. 01A31608. Accordingly, the matter will not be addressed herein.