0420070014
09-26-2007
Robert F. Woodley, Petitioner, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Robert F. Woodley,
Petitioner,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Petition No. 0420070014
Appeal No. 07A60074
Agency No. 4G-870-0089-04
DECISION ON A PETITION FOR ENFORCEMENT
The Equal Employment Opportunity Commission (EEOC or Commission)
docketed a petition for enforcement to examine the enforcement of an
order set forth in Robert F. Woodley v. United States Postal Service,
EEOC Appeal No. 07A60074 (October 12, 2006). Petitioner alleged that
the agency failed to fully comply with the Commission's Order which
provided that the agency provide complainant with specific relief and
implement certain corrective actions. For the following reasons, the
Commission hereby GRANTS the petition.
Petitioner filed a complaint in which he alleged that the agency
discriminated against him on the bases of race (African-American), color
(black), and reprisal for prior protected EEO activity under Title VII of
the Civil Rights Act of 1964 in violation of Title VII of the Civil Rights
Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq., when he
was improperly charged Leave Without Pay. An EEOC Administrative Judge
(AJ) found discrimination on the bases of race, color, and in reprisal
for prior protected activity.
The agency rejected the AJ's decision and filed an appeal with the
Commission. In EEOC Appeal No. 07A60074, the Commission dismissed the
agency's appeal as untimely and ordered the agency to implement the
relief ordered by the AJ, as slightly modified.
In EEOC Appeal No. 07A60074, we ordered the agency to take the following
actions.
A. Within 30 days of the date this decision becomes final, the
agency shall restore and credit to complainant all sick and annual leave
complainant used as a result of the discrimination and retaliation.
B. Within 30 days of the date this decision becomes final, the agency
shall pay complainant interest of 10% per annum on the amount of $184.00
from May 29, 2004, until he actually receives payment from the agency.
C. Within 30 days of the date this decision becomes final, the
agency shall pay non-pecuniary, compensatory damages in the amount of
$500.00 to complainant.
D. Within 60 days of the date this decision becomes final, the
agency shall pay to complainant any pecuniary damages in an amount that
he can document.
E. Within 60 days of the date this decision becomes final, the
agency shall pay to complainant, in the amount he can document, any
costs associated with the loan of $150.00 complainant received to buy
school books.
F. Within 180 days of the date this decision becomes final, the
agency shall conduct eight hours of EEO training which focuses on Title
VII and reprisal for all management and supervisory officials responsible
for the discrimination found to have occurred in this case.
G. Within 180 days of the date this decision becomes final, the agency
shall consider taking appropriate disciplinary action against the
responsible management officials still employed by the agency. The
Commission does not consider training to be disciplinary action. The
agency shall report its decision to the Compliance Officer referenced
herein. If the agency decides to take disciplinary action it shall
identify the action taken. If the agency decides not to take disciplinary
action, it shall set forth the reason(s) for its decision not to impose
discipline. If any of the responsible management officials have left
the agency's employment, the agency shall furnish documentation of their
departure date(s).
The Commission also ordered the agency to post an attached notice at
its Albuquerque Post Office in Albuquerque, New Mexico.
On November 30, 2006, petitioner submitted the petition for enforcement
at issue. Petitioner contends that the agency failed to comply with
provisions (A), (B), and (C) of the relief ordered. Petitioner
later amended and supplemented his petition to add that the agency
failed to pay pecuniary damages (D) and costs (E) as described in the
Commission's Order. On January 31, 2007, petitioner amended his petition
for enforcement a second time to state that in addition to the previous
relief the agency had not provided, the agency also failed to comply with
the Commission's Posting Order. Petitioner notes that while the agency
did post the required notice, it did not do so in a conspicuous place.
Complainant argues that the agency selected an out of the way bulletin
board, rather than a bulletin board near the time clock where notices
that the agency actually needs employees to read are posted.
In a response to the instant petition, dated March 2, 2007, the
agency states that it has fully complied with the Order in EEOC Appeal
No. 07A60074. Specifically, the agency states that complainant has been
paid a lump sum of $800 which includes the following reimbursement:
$184.00 - leave with interest (provision B of the Order); $500 -
non-pecuniary damages (provision C of the Order); and $15 - the costs of
the $150 loan (provision E of the Order). The agency states that it has
no other administrative record for any other sick or annual leave used in
connection with the discrimination. The agency further states that "to
date, the complainant has failed to forward any documentation concerning
pecuniary damages to the Postal Service's EEO Director." The agency
asserts that the required notice was posted in a conspicuous area.
On May 30, 2007, the agency supplemented its response to the petition for
enforcement to add that both responsible management officials received
8 hours of training as ordered and that the agency had considered and
declined to issue any discipline to either official.
By submission dated June 3, 2007, petitioner responded to the agency's
compliance report. Therein, petitioner argued that he has provided the
agency with timekeeping reports (TACS) by attaching them to Exhibit
D of his initial appeal, that document the amount of leave he used
in connection with the discriminatory events. Further, petitioner
states that at least two of the eight hours of training received by the
discriminating officials did not concern Title VII and reprisal topics,
but instead concerned mediation, Redress, and alternative dispute
resolution. Moreover, petitioner objects to the agency's failure to
take corrective action in the form of discipline.
Petitioner does not dispute that he has been paid a lump sum of $800.00
and we therefore find that on remand, the agency shall be credited with
this payment.
With respect to the agency's compliance with provisions (A), (B), (C),
(D) and (E), we find that the record in EEOC Appeal No. 07A60074 contains,
as does the record in the instant enforcement action, copies of time
records, receipts, bank statements and other documents to show the leave
complainant used and pecuniary damages petitioner incurred allegedly in
connection with the instant discriminatory events. We further find the
record reflects that this documentation was supplied to the agency.
We note that the agency failed to consider or address petitioner's
documented proof of pecuniary damages and lost leave by claiming
alternately that no administrative record of his sick leave used as
a result of the discrimination and retaliation exists, and by arguing
that petitioner submitted the pecuniary damages documentation to the
incorrect agency officials.
We find that our Order (specifically, provision (A)) regarding leave
restoration was not confined to the day of the discriminatory event itself
but that petitioner has not shown any connection between the additional
sick leave he used and the discrimination. We therefore find that the
agency has fully complied with provision (A) by reimbursing him for $184
(one day's leave).
We observe that agency explained in part its arrival at the lump sum
of $800 due petitioner. However, we do not find that the agency has
adequately shown how it calculated the amount paid for the interest
due petitioner pursuant to provision (B). On remand, we will direct
the agency to provide an explanation of how interest was calculated in
provision (B).
The Commission finds that the agency has complied with the $500 payment
due complainant in provision (C).
The agency has not addressed petitioner's specific information he provided
in support for pecuniary damages (D). We find that petitioner has provided
the agency with considerable documentation for mileage, prescription
medication, and postage, which the agency has neither paid nor challenged.
On remand, we will direct the agency to pay appropriate pecuniary damages
for those expenses that petitioner has documented including postage
(approximately $200), prescriptions ($257.43), and mileage ($119.68).
Regarding provision (E), we find that complainant was reimbursed for $15
(included in the $800 lump sum payment) for the costs he was able to
document associated with the loan. Therefore, we find that the agency
has complied with provision (E).
With respect to provisions (F) and (G) and our Posting Order, we find
that the training of the officials substantially complied with our
Order and that the agency's consideration of discipline was adequate to
constitute compliance with our Order. We further find that the agency
complied with our Posting Order as it was required to do by placing it
in a sufficiently conspicuous place.
On remand concerning provisions (B) and (D), if the agency determines
that it owes complainant more than the $800 it has reimbursed complainant,
then it shall reimburse complainant the amount due complainant in excess
of $800.
Accordingly, the issue of the agency's compliance with provisions (B) and
(D) of the Commission's Order in EEOC Appeal No. 07A60074 is REMANDED to
the agency for further action in accordance with the Order listed below.
ORDER
The agency shall, within 30 days of the date this decision becomes final,
take the following actions:
1. Supplement the record with an explanation of how interest was
calculated in provision (B).
2. Calculate appropriate pecuniary damages at issue in provision (D)
for those expenses that petitioner has documented.
3. Pay petitioner any outstanding sums due (after calculating pecuniary
damages due) after subtraction of the lump sum payment ($800).
The agency shall submit documentation of compliance with this Order to the
Compliance Officer as referenced in the section 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 (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.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
The Commission may, in its discretion, reconsider the decision in this
case if the complainant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. The appellate decision involved a clearly erroneous interpretation
of material fact or law; or
2. The appellate decision will have a substantial impact on the
policies, practices, or operations of the agency.
Requests to reconsider, with supporting statement or brief, must be filed
with the Office of Federal Operations (OFO) within thirty (30) calendar
days of receipt of this decision or within twenty (20) calendar days of
receipt of another party's timely request for reconsideration. See 29
C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for
29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999). All requests
and arguments must be submitted to the Director, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. In the absence of a legible postmark, the
request to reconsider shall be deemed timely filed if it is received by
mail within five days of the expiration of the applicable filing period.
See 29 C.F.R. � 1614.604. The request or opposition must also include
proof of service on the other party.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely, unless extenuating circumstances
prevented the timely filing of the request. Any supporting documentation
must be submitted with your request for reconsideration. The Commission
will consider requests for reconsideration filed after the deadline only
in very limited circumstances. See 29 C.F.R. � 1614.604(c).
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
September 26, 2007
__________________
Date
2
0420070014
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
7
0420070014