01993455
07-21-2000
Robert Hart, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, (Pacific/Western Region), Agency.
01993455
Robert Hart v. United States Postal Service
July 21, 2000
.
Robert Hart,
Complainant,
v.
William J. Henderson,
Postmaster General,
United States Postal Service,
(Pacific/Western Region),
Agency.
Appeal No. 01993455
Agency No. 1-F-1775-93
DECISION
On March 3, 1999, complainant timely initiated an appeal of a
final agency decision (FAD) dated February 23, 1999, concerning his
complaint of unlawful employment discrimination on the bases of race
(African-American), color (black), and sex (male), in violation of Title
VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et
seq.<1> The Commission accepts the appeal pursuant to 64 Fed. Reg. 37,644,
37,659 (1999)(to be codified at 29 C.F.R. � 1614.405).
The procedural history of the instant case is as follows: After
complainant initially filed his formal complaint and the agency issued
an investigative report, an EEOC Administrative Judge (AJ) issued a
Recommended Decision in the instant claim finding that complainant had
been discriminated against on the above-stated bases when he was issued a
fourteen (14) day suspension by the agency on June 14, 1993. As relief,
the AJ recommended that the agency provide backpay to complainant
plus interest, compensatory damages and appropriate attorney's fees.
However, the agency issued a FAD concluding that complainant had not been
discriminated against. Complainant timely appealed, and the Commission,
discerning no basis upon which to overturn the AJ's finding of race and
sex discrimination, reversed the agency's FAD finding no discrimination.
As remedies, the Commission ordered the agency to rescind complainant's
suspension, provide back pay with interest, provide EEO training to
responsible managers and determine the amount of compensatory damages to
which complainant may be entitled. Hart v. United States Postal Service,
EEOC Appeal No. 01960748 (August 4, 1998).
After holding a supplemental investigation on the issue of compensatory
damages, the agency issued a supplemental FAD finding that complainant
failed to submit objective evidence to support his claim, and thus no
compensatory damages were awarded. In his instant appeal from that
agency's FAD addressing the issue of compensatory damages, complainant
contends that he suffered mental and emotional distress and should be
awarded the maximum amount of compensatory damages.
In the meantime, however, on December 27, 1999, complainant had filed
a Petition for Enforcement of the Commission's prior Order in EEOC
Appeal No. 01960748, contending that the agency had not complied with
the remedial actions ordered by the Commission when it failed to award
him the correct amount of back pay plus interest, did not conduct the
proper training, did not reimburse certain attorney's fees and determined
that he was not entitled to any compensatory damages. In its decision
on the Petition, the Commission found that the agency had conducted
proper EEO sensitivity training for relevant management officials
and had complied with the provisions of 29 C.F.R. � 1614.501(e) with
respect to the reimbursement of any attorney's fees that may have been
incurred. However, the Commission found that the record was inadequate
to determine whether the agency awarded complainant the correct amount
of back pay and interest. Further, the Commission found improper the
agency's determination that complainant was not entitled to any award of
compensatory damages. Consequently, the Commission reviewed the matter
and found that complainant was entitled to an award of nonpecuniary
damages in the amount of $1,000.00. Thus, the Commission granted the
complainant's Petition for Enforcement regarding these issues, and ordered
the agency to issue a check to complainant for the undisputed amount of
interest on back pay and for $1,000.00 in payment of the compensatory
damages. Hart v. United States Postal Service, EEOC Petition No. 04990023
(March 31, 2000).
Therefore, the issues raised in complainant's instant appeal regarding
of the agency's denial of compensatory damages, were properly addressed
by the Commission in its decision in EEOC Petition No. 04990023. EEOC
Regulations provide for the dismissal of issues pending or previously
decided by the agency or Commission. See 64 Fed. Reg. 37,644, 37,656
(1999) (to be codified as 29 C.F.R. � 1614.107(a)(1)). Therefore, to
the extent that complainant raised the issue of compensatory damages in
the instant appeal, complainant's appeal is DISMISSED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
to as 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter
referred to as 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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)
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, Acting Director
Office of Federal Operations
July 21, 2000
__________________
Date
1 On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply to all
federal sector EEO complaints pending at any stage in the administrative
process. Consequently, the Commission will apply the revised regulations
found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.