04990002
06-24-1999
) Request No. 05980079
Lorena Reyna-Lovato v. United States Postal Service
04990002
June 24, 1999
Lorena Reyna-Lovato, )
Petitioner, )
)
v. ) Petition No. 04990002
) Request No. 05980079
William J. Henderson, ) Appeal No. 01964023
Postmaster General, ) Agency No. 4-F-940-1233-94
United States Postal Service,)
Agency. )
)
DECISION ON PETITION FOR ENFORCEMENT
On October 8, 1998, the Equal Employment Opportunity Commission (EEOC or
Commission) docketed a Petition for Enforcement from Lorena Reyna-Lovato
(petitioner), requesting enforcement of the Commission's order in Lorena
Reyna-Lovato v. United States Postal Service, EEOC Request No. 05980079
(August 13, 1998). The Petition for Enforcement was properly filed in
accordance with 29 C.F.R. �1614.503(a). For the reasons set forth herein,
the petition is GRANTED.
ISSUE PRESENTED
The issue presented in this petition is whether the agency has fully
complied with the Order of the Commission set forth in EEOC Appeal
No. 01964023 and Request No. 05980079.
BACKGROUND
Appellant filed a formal EEO complaint alleging that the agency
discriminated against her on the basis of disability (Schizotypal
Personality disorder) when she was denied a transfer from the Palo Alto,
California, Post Office to any one of several Arizona post offices.
The Commission's decision on appeal adopted the recommended decision of
the administrative judge, finding disability discrimination and ordered
the agency, inter alia, to transfer appellant "to a Letter Carrier
position at her current grade and pay to [sic] an Arizona post office
located within a reasonable commuting distance of Fort Huachuca" and,
within a total of seventy (70) days of the date on which the decision
became final, to pay appellant compensatory damages in the form of
reimbursement for the housing expenses she incurred on account of
having to remain in California to keep her job rather than joining
her already-transferred husband (not an agency employee) in Arizona.
Reyna-Lovato v. United States Postal Service, EEOC Appeal No. 01964023
(September 19, 1997). The agency filed a request for reconsideration,
which was denied. Reyna-Lovato v. United States Postal Service, EEOC
Request No. 05980079 (August 13, 1998).
In her petition for enforcement, appellant states that the agency has
failed to comply with the Commission's Order in several respects: (1)
that the agency was supposed to reassign her to her choice of either
the Bisbee or Sierra Vista, Arizona post offices, but simply reassigned
her to Bisbee even though during the course of (ultimately unsuccessful)
settlement negotiations the agency indicated a willingness to reassign
her to Sierra Vista; (2) that the agency reassigned her to a part-time
flexible position, rather than a full-time regular position as she held
in California; (3) that the Bisbee post office, which is approximately
30 miles from Fort Huachuca, is not within reasonable commuting distance
of Fort Huachuca; and (4) that in calculating the reimbursement to which
she is entitled, the agency plans to use a 5 day week rather than a 7
day week, and plans to use the per diem housing rate for Arizona rather
than California.
In its reply, the agency notes that the Commission's Order directs the
agency to place appellant at "an Arizona Post Office within a reasonable
commuting distance of Fort Huachuca, Arizona," and that it placed
appellant at Bisbee because Sierra Vista was over its complement for
City Carriers and therefore could not place a City Carrier. The agency
acknowledges that appellant initially had been reassigned to a part-time
flexible position, but notes that her assignment had been retroactively
corrected. With regard to the commuting distance, the agency notes that
its regulations provide that 50 miles one way is a reasonable commuting
distance, and that Bisbee is 26.3 miles one way from Fort Huachuca.
Regarding appellant's assertion about the agency's willingness to place
her at Sierra Vista, the agency notes that the settlement agreement
referenced by appellant was never executed. Finally, with regard to the
reimbursement of appellant's housing expenses, the agency notes that it
would be premature for the Commission to address this matter because the
agency has not yet determined the amount to which it believes appellant
is entitled.
ANALYSIS and FINDINGS
Upon review of the record and the parties' submissions, the Commission
finds that the agency is not in compliance with the Order of the
Commission as set forth in Appeal No. 01964023 and Request No. 05980079,
and the petition for enforcement is GRANTED. The record reflects that
appellant has been retroactively reassigned to a full-time regular City
Carrier, Level 6, position at a post office within reasonable commuting
distance of Fort Huachuca, Arizona. Although the AJ indicated that
the agency should allow appellant to indicate a preference whether to
be reassigned to Bisbee or Sierra Vista, that term of the recommended
relief was not part of the Commission's Order. Further, the settlement
agreement referenced by appellant, which would have placed her at Sierra
Vista, was never executed by the parties and therefore has no bearing on
this matter. However, the agency has not yet determined the amount of
monies which appellant is to be reimbursed for housing expenses,<1> which
it was to have done within 70 days of the date on which the Commission's
decision in Appeal No. 01964023 became final; that is, within 70 days of
its receipt of the decision in request No. 05980079. Accordingly, the
agency will be ordered to comply with that order of the Commission.<2>
CONCLUSION
Based upon the foregoing, the Commission finds that the agency is not
in compliance with the Order of the Commission in Appeal No. 01964023
and Request No. 05980079.
ORDER
The agency is ORDERED to take the following actions:
Within thirty (30) days of its receipt of this decision, the agency shall
determine the amount of monies due and owing appellant for reimbursement
of her housing expenses while she had to remain in California prior
to being reassigned to a facility in Arizona, and shall tender such an
amount to her. The agency shall thereafter submit a report of compliance
to the Compliance Officer, as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0595)
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
appellant. If the agency does not comply with the Commission's order,
appellant may petition the Commission for enforcement of the order.
29 C.F.R. �1614.503 (a). Appellant 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. ��
1614.408, 1614.409, and 1614.503 (g). Alternatively, appellant 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. ��1614.408 and 1614.409. 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 appellant files a civil
action, the administrative processing of the complaint, including any
petition for enforcement, will be terminated. See 29 C.F.R. �1614.410.
ATTORNEY'S FEES (H1092)
If appellant 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.
STATEMENT OF RIGHTS - PETITION FOR ENFORCEMENT
RIGHT TO FILE A CIVIL ACTION (R0993)
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 an action in an appropriate
United States District Court. It is the position of the Commission
that 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. You should be aware, however, that
courts in some jurisdictions have interpreted the Civil Rights Act of
1991 in a manner suggesting that a civil action must be filed WITHIN
THIRTY (30) CALENDAR DAYS from the date that you receive this decision.
To ensure that your civil action is considered timely, you are advised to
file it WITHIN THIRTY (30) CALENDAR DAYS from the date that you receive
this decision or to consult an attorney concerning the applicable time
period in the jurisdiction in which your action would be filed. In the
alternative, you may file a civil action AFTER ONE HUNDRED EIGHTY (180)
CALENDARS 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 (Z1092)
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:
June 24, 1999
Date Frances M. Hart
Executive Officer
Executive Secretariat
1"Housing expenses" includes those out-of-pocket expenses incurred by
appellant on account of having to maintain a household in California
separate from her spouse in Arizona. Such expenses would include, for
example, rent and utilities. See Reyna-Lovato v. U.S. Postal Service,
EEOC Request No. 05980079 (August 13, 1998).
2In this regard, the agency is reminded that after appellant was denied
reassignment to Arizona on a discriminatory basis, she incurred housing
expenses seven days per week in California, not five days per week in
Arizona.