0420060041
01-03-2007
Sean S. Brown, Petitioner, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Sean S. Brown,
Petitioner,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Petition No. 04200600411
Appeal No. 01A45134
Agency No. 4H320005399
DECISION ON A PETITION FOR ENFORCEMENT
On September 5, 2006, the Equal Employment Opportunity Commission
(EEOC or Commission) docketed a petition for enforcement to examine the
enforcement of an order set forth in Sean S. Brown v. United States
Postal Service, Appeal No. 01A45134 (June 1, 2006). This petition
for enforcement is accepted by the Commission pursuant to 29 C.F.R. �
1614.503. Petitioner alleged that the agency failed to fully comply
with the Commission's order when the agency did not pay him back pay
and other benefits to which he was entitled, with interest.
Petitioner filed a complaint in which he alleged that the agency
discriminated against him on the basis of disability (chondromalacia) in
violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation
Act), as amended, 29 U.S.C. � 791 et seq., when it refused to hire
him. When petitioner withdrew his request for a hearing, the agency
issued a decision finding no discrimination. Petitioner appealed the
agency's final decision to the Commission, and in Appeal No. 01A45134,
the Commission found that there was evidence that the agency regarded
petitioner as an individual with a disability and based its decision
not to hire him on that basis.
The order in that decision specified that the agency had to offer
petitioner the position of Mail Processor or a substantially equivalent
position at an agency facility within thirty miles of petitioner's home.
In addition, the agency was directed to calculate the amount of back
pay with interest and other benefits due petitioner, pursuant to 29
C.F.R. � 1614.501, no later than sixty calendar days after the decision
became final. The agency was also told that if there was a dispute
regarding the amount, a check should be issued to complainant for the
undisputed amount. The matter was assigned to a Compliance Officer and
docketed as Compliance No. 06A60782. Information from the Compliance
Officer indicates that, as of December 20, 2006, the agency had failed
to issue a check to petitioner, nor did it provide any calculations.
On September 5, 2006, petitioner submitted the petition for enforcement
at issue herein. Petitioner contends that the agency failed to pay him
the monies he was due. The Commission notes that he has been placed in
a position with the agency, however he raised some concerns about the
position in a letter to the Compliance Officer. The agency has not
submitted any information indicating it has paid anything, let alone
any calculations. As such, the Commission finds that the agency has
failed to comply with the Commission's Order and petitioner's petition
is granted. The matter is remanded for further action as set forth below.
ORDER (D0900)
The agency is ordered to expeditiously take the following remedial
action:
Within thirty (30) days of the date it receives this decision, the agency
shall review the position into which petitioner was placed and discuss
and address any concerns arising therein. Petitioner shall cooperate
with the agency's efforts to address his concerns.2
The agency shall issue a check to complainant for the appropriate
amount of back pay (with interest, if applicable) and other benefits
due complainant, pursuant to 29 C.F.R. � 1614.501, no later than
thirty (30) calendar days after the date it received this decision.
The complainant shall cooperate in the agency's efforts to compute the
amount of back pay and benefits due, and shall provide all relevant
information requested by the agency. If there is a dispute regarding
the exact amount of back pay and/or benefits, the agency shall issue a
check to the complainant for the undisputed amount within thirty (30)
calendar days of the date it receives this decision. The complainant
may petition for enforcement or clarification of the amount in dispute.
The petition for clarification or enforcement must be filed with the
Compliance Officer, at the address referenced in the statement entitled
"Implementation of the Commission's Decision."
The agency is further directed to submit a report of compliance, as
provided in the statement entitled "Implementation of the Commission's
Decision." The report shall include supporting documentation of the
agency's calculation of backpay and other benefits due complainant,
including evidence 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.
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
January 3, 2007
__________________
Date
1 Due to a new Commission data system, this case has been redesignated
with the above-referenced appeal number.
2 The only issue within the parameters of this decision is whether
petitioner was placed in a mail processor position or substantially
equivalent position. To the extent that petitioner raised concerns of
reasonable accommodation, his hours, or any other matters regarding the
position, such concerns are not part of the instant complaint.
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0420060041
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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0420060041