0520120082
01-31-2013
Robert Harris, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Southeast Area), Agency.
Robert Harris,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Southeast Area),
Agency.
Request No. 0520120082
Appeal No. 0120102717
Hearing No. 430-2009-00203X
Agency No. 4K-230-0228-08
DECISION ON RECONSIDERATION
Complainant timely requested reconsideration of the decision in Robert Harris v. U.S. Postal Service, EEOC Appeal No. 0120102717 (October 28, 2011). EEOC Regulations provide that the Commission may, in its discretion, grant a request to reconsider any previous Commission decision where the requesting party demonstrates 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. See 29 C.F.R. � 1614.405(b).
On February 24, 2010, an EEOC Administrative Judge (AJ) issued a decision finding that the Agency retaliated against Complainant on August 15, 2008, when it notified him that his work hours were changed from 8:30 a.m. until 5:00 p.m. to 9:00 a.m. until 5:30 p.m., effective August 16, 2008. Additionally, the AJ found that the Agency discriminated against Complainant in reprisal for prior EEO activity when it failed to grant Complainant 16 hours of sick leave over two dates in July 2008. The AJ ordered the Agency to pay Complainant $1,000 in non-pecuniary compensatory damages; reinstate two days (16 hours) of sick leave to Complainant; pay reasonable costs associated with the litigation of the complaint; and provide training to the responsible management officials. Additionally, the AJ made the following finding:
Complainant also seeks reimbursement of the contribution of (sic) his TSP [Thrift Savings Plan] account that he did not receive as a result of being denied sick leave for two days. However, when Complainant uses the sick leave that will be reinstated pursuant to this Order, he will receive the contribution of (sic) his TSP account at that time. The additional monetary award he seeks would result in double payment for his loss, and therefore is not awarded.
AJ Decision at n.5.
The Agency fully adopted the AJ's decision in a final order. Complainant subsequently notified the Agency of its alleged non-compliance with its final order. Specifically, Complainant alleged that the Agency had not restored two days of sick leave, posted the required notice, or reimbursed Complainant and his non-attorney representative for their time and costs.
Complainant appealed the matter to the Commission, and in our previous decision, the Commission determined that the Agency correctly responded to Complainant's requests for fees and costs when it informed Complainant that attorney's fees are limited to members of the Bar, and that complainants and non-attorney representatives are not entitled to compensation for their work on EEO cases. The Commission further noted that the AJ properly denied Complainant an award for reimbursement to his TSP account because he will receive the contribution to his TSP account when he uses the sick leave restored pursuant to the AJ's order. However, we noted that the record did not include evidence that the Agency had restored Complainant's sick leave, paid $29.27 in postage costs, or posted the notice. Accordingly, the Commission ordered the Agency to restore two days of sick leave to Complainant, pay $29.27 in postage costs to Complainant, and post a notice of the discrimination finding.
In his request for reconsideration, Complainant contends that he did not receive the proper TSP contribution because he was "wrongfully fired" by the Agency effective June 22, 2010. He states that he no longer has a TSP account because he used the funds from it to survive and maintain his home. Complainant further contends that the Agency owes him $15.77, which represents his previous hourly salary ($24.64) for 16 hours of sick leave multiplied by the four percent contribution the Agency should have made to his TSP account when he was denied sick leave in July 2008.
Complainant also contends that he and his non-attorney representative prepared his EEO case on personal time because the Agency denied him the opportunity to do so while "on the clock." Complainant requests that the Commission order the Agency to reimburse him for the time he and his non-attorney representative prepared his case based on their normal salaries and overtime pay.
Upon review, we find that Complainant's request for reconsideration fails to show that our previous decision involved a clearly erroneous interpretation of material fact or law, or that it would have a substantial impact on the policies, practices, or operations of the Agency. In so finding, we note that, at the time of the issuance of our previous decision, the Commission had not been informed that Complainant was terminated from his position with the Agency.
We note that a "request for reconsideration is not a second appeal to the Commission." Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110) (rev. Nov. 9, 1999), at 9-17; see, e.g., Lopez v. Dep't of Agriculture, EEOC Request No. 0520070736 (Aug. 20, 2007). Rather, a reconsideration request is an opportunity to demonstrate that the previous decision involved a clearly erroneous interpretation of material fact or law; or (2) will have a substantial impact on the policies, practices, or operations of the Agency. Complainant has not done so here. Therefore, we deny Complainant's request for reconsideration.
However, because of changed circumstances and in the interest of fundamental fairness, we reopen the previous decision on our own motion to modify the remedy. Complainant contends that the Agency terminated him on June 22, 2010, which the Agency does not rebut. In response to Complainant's request for reconsideration, the Agency provides correspondence dated January 18, 2012, reflecting that Complainant was credited with 16 hours of sick leave for the eleventh pay period in 2009. The pay adjustment certification was generated on April 16, 2010. Complainant maintains that this 16-hour credit was for another matter, not the matter at issue here. We note that the documentation reflects that it represents an adjustment for a pay period in 2009, not the July 2008 pay period at issue in this case. Moreover, the documentation states that the adjustment occurred because "employee should have received OWCP [Office of Workers Compensation Programs]," whereas this matter involves denial of sick leave. As such, we are not persuaded that the Agency credited Complainant with the 16 hours of sick leave he was unlawfully denied in July 2008. Moreover, because Complainant is no longer employed by the Agency, ordering the Agency to restore Complainant's sick leave is no longer a plausible remedy for the Agency's unlawful actions. Therefore, the Commission orders the Agency to pay Complainant the value of the 16 hours of sick leave he was denied, together with the amount he lost in TSP contributions because of the sick leave denial.
Complainant also contends that he and his non-attorney representative are entitled to compensation for work done on his case during off-duty hours. Upon review of this matter, it appears that Complainant has conflated official time with a prevailing complainant's entitlement to reasonable attorney's fees. EEOC Regulation 29 C.F.R. � 1614.605(b) provides that if a complainant is an employee of the agency, he shall have a reasonable amount of official time, if otherwise on duty, to prepare his complaint and to respond to agency and EEOC requests for information. Further, if a complainant has been represented by an attorney, he is entitled to an award of reasonable attorney's fees incurred in the processing of a successful complaint. 29 C.F.R. � 1614.501(e). However, attorney's fees are allowable only for the services of members of the Bar and law clerks, paralegals, or law students under the supervision of members of the Bar, except that no award is allowable for the services of any employee of the Federal Government. 29 C.F.R. � 1614.501(e)(1)(iii).
As stated in our previous decision, Complainant is not entitled to attorney's fees because his representative for this case is not an attorney, law clerk, paralegal, or law student under the supervision of members of the Bar. Additionally, Complainant did not raise a denial of official time claim with the AJ, and cannot now belatedly raise it for first time in his request for reconsideration.
Accordingly, after reviewing the previous decision and the entire record, the Commission finds that the request fails to meet the criteria of 29 C.F.R. � 1614.405(b), and it is the decision of the Commission to DENY the request. The decision in EEOC Appeal No. 0120102717, as modified below, remains the Commission's final decision. There is no further right of administrative appeal on the decision of the Commission on this request.
ORDER (E0610)
To the extent that it has not already done so, the Agency shall undertake the following actions within thirty (30) calendar days of this decision:
1. Pay Complainant the monetary value of the 16 hours of sick leave he was denied in July 2008, at the rate of pay he was then earning;
1. Pay Complainant $15.77 for lost TSP contributions;
2. Pay Complainant $29.27 in reasonable costs for postage; and
3. Post a notice at the Forest Hill Station in Richmond, Virginia consistent with the order below.
A copy of the Agency's letter of acknowledgment to Complainant and a copy of the notice that transmits the investigative file and notice of rights must be sent to the Compliance Officer as referenced below.
POSTING ORDER (G0610)
The Agency is ordered to post at its Forest Hill Station in Richmond, Virginia copies of the attached notice. Copies of the notice, after being signed by the Agency's duly authorized representative, shall be posted by the Agency within thirty (30) calendar days of the date this decision becomes final, and shall remain posted for sixty (60) consecutive days, in conspicuous places, including all places where notices to employees are customarily posted. The Agency shall take reasonable steps to ensure that said notices are not altered, defaced, or covered by any other material. The original signed notice is to be submitted to the Compliance Officer at the address cited in the paragraph entitled "Implementation of the Commission's Decision," within ten (10) calendar days of the expiration of the posting period.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0610)
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 77960, Washington, DC 20013. 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.
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (P0610)
This decision of the Commission is final, and there is no further right of administrative appeal from the Commission's decision. 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.
RIGHT TO REQUEST COUNSEL (Z0610)
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 from the Court that the Court appoint an attorney to represent you and that the Court also 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 with the Court 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
January 31, 2013
Date
2
0520120082
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0520120082