05A30669
05-15-2003
Terrie Lee, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Terrie Lee v. United States Postal Service
05A30669
05-15-03
.
Terrie Lee,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Request No. 05A30669
Appeal No. 01A02748
Agency Nos. 1-J-607-0070-99, 1-J-607-0128-99
Hearing Nos. 210-99-6277X, 210-99-6258X
DENIAL OF REQUEST FOR RECONSIDERATION
Terrie Lee (complainant) timely initiated a request to the Equal
Employment Opportunity Commission (EEOC or Commission) to reconsider
the decision in Terrie Lee v. United States Postal Service, EEOC Appeal
No. 01A02748 (March 19, 2003). EEOC Regulations provide that the
Commission may, in its discretion, 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).
In the previous decision, complainant alleged discrimination based
on disability (carpal tunnel syndrome) and reprisal for prior EEO
activity when: (1) on or about February 22, 1998, she was removed from
her position as �keyer� on the small parcel bundle sorter; and (2) on
August 15, 1998, she was notified of the expiration of her appointment
as a casual employee. Following a hearing, the Administrative Judge
(AJ), issued a decision finding discrimination. The AJ concluded that
complainant established by a preponderance of the evidence that reprisal
motivated the agency in its failure to renew her casual appointment.
The agency's final action adopted the AJ's decision.
On appeal, the Commission found that the AJ's finding of discrimination
with regard to the expiration of her casual appointment was supported
by substantial evidence in the record. As to compensatory damages,
complainant failed to present evidence of said damages at the hearing
despite the AJ clearly stating that both liability and damages would
be heard at the hearing. Therefore, we discerned no basis to disturb
the AJ's decision with respect to compensatory damages. With respect
to back pay however, the Commission found that the AJ erred and
complainant was entitled to back pay. The Commission ordered the agency
to pay complainant back pay for an 89-day renewed casual appointment.
The agency was also ordered to review its records and determine whether
casual employees similarly situated to complainant typically had their
casual appointments renewed at their expiration date; if so, complainant
would be deemed to have merited such a renewal. Further, should the
agency's records reflect that casual employees similarly situated to
complainant typically were converted to permanent employee status, the
agency should offer complainant placement in such a position and back
pay, including benefits and seniority, to the date complainant accepted
or declined such a position.
In complainant's request for reconsideration, she contends that she is
an individual with a disability, as she consistently informed management
about the pain she was experiencing. Complainant also maintains that she
should have been awarded compensatory damages because her injuries were
more serious than anticipated. Finally, complainant contends that she
should have been awarded back pay for a regular salary position instead
of as a casual appointment.
After a review of complainant's request for reconsideration, 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. We find
that it is immaterial as to whether complainant is an individual
with a disability because, as stated in the previous decision, even
if complainant were found to be an individual with a disability,
she would be entitled to precisely the same remedy as dictated by a
finding of reprisal discrimination alone. As to compensatory damages,
we note that complainant failed to produce evidence of any damages.
As such, our decision not to award damages was correct. Finally, as
to complainant's request for an award of back pay at the regular salary
position level, the previous decision correctly ordered payment for an
89 day renewed casual appointment with further review of agency records
with regard to any entitlement to an additional casual appointment
and permanent employee status. The Order in the previous decision is
repeated below. Accordingly, the decision in EEOC Appeal No. 01A02748
remains the Commission's final decision. There is no further right of
administrative appeal on the decision of the Commission on this request
for reconsideration.
ORDER
To the extent that it has not already done so, the agency is ordered to
take the following remedial action:
1. The agency shall determine the appropriate amount of back pay
with interest for one 89-day casual appointment, which would have
begun in January 1999, and other benefits due complainant, pursuant
to 29 C.F.R. � 1614.501, no later than sixty (60) calendar days after
the date of 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 sixty (60) calendar days of the date the
agency determines the amount it believes to be due. 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."
2. Within thirty (30) days from the date this decision becomes final,
the agency shall review its records and determine whether casual employees
at the Chicago Central Facility who were similarly situated to complainant
in January 1999 typically had their casual appointments renewed at their
expiration date; if so, complainant shall be deemed to have merited
such a renewal. The agency shall then, with respect to each renewal,
compute the amount of back pay and benefits due complainant consistent
with paragraph No. 1 of this order. Should the agency's record reflect
that casual employees similarly situated to complainant typically were
converted to permanent employee status, the agency shall offer complainant
placement in such a position, and back pay, including benefits and
seniority, to the date complainant accepts or declines such a position.
However, if the agency shows that casual employees similarly situated to
complainant were not converted to permanent employee status, the agency
shall offer complainant placement in a casual employee position in the
Chicago Central Facility. Complainant shall be offered 30 days in which
to determine whether to accept the position.
3. The agency shall provide training to all the management officials
responsible for this matter in their duties and obligations under the
relevant EEO law.
4. The agency shall consider taking disciplinary action against the
management officials identified as being responsible for failure to renew
complainant's casual appointment. The agency shall report its decision.
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.
5. 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 back pay and other benefits due complainant,
including evidence that the corrective action has been implemented.
POSTING ORDER (G0900)
The agency is ordered to post at its Chicago Central Facility, Chicago,
Illinois 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 (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 (P0900)
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 (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
___05-15-03_______________
Date
POSTED BY ORDER OF THE
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
An Agency of the United States Government
This Notice is posted pursuant to an Order by the United States Equal
Employment Opportunity Commission dated which found that a
violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation
Act), as amended, 29 U.S.C. � 791 et seq., has occurred at this facility.
Federal law requires that there be no discrimination against any employee
or applicant for employment because of the person's RACE, COLOR, RELIGION,
SEX, NATIONAL ORIGIN, AGE, or DISABILITY with respect to hiring, firing,
promotion, compensation, or other terms, conditions or privileges of
employment. The United States Postal Service, Chicago Central Facility,
Chicago, Illinois confirms its commitment to comply with these statutory
provisions.
The United States Postal Service, Chicago Central Facility, Chicago,
Illinois supports and will comply with such Federal law and will not
take action against individuals because they have exercised their rights
under law.
The United States Postal Service, Chicago Central Facility, Chicago,
Illinois has been found to have discriminated against an employee in
reprisal when it failed to renew her casual appointment. The United
States Postal Service, Chicago Central Facility, Chicago, Illinois has
been ordered to take specified steps to ensure that such discrimination
does not reoccur, pay back pay, and to the extent appropriately proven,
pay attorney fees and costs. The United States Postal Service, Chicago
Central Facility, Chicago, Illinois will ensure that officials responsible
for personnel decisions and terms and conditions of employment will abide
by the requirements of all Federal equal employment opportunity laws.
The United States Postal Service, Chicago Central Facility, Chicago,
Illinois will not in any manner restrain, interfere, coerce, or retaliate
against any individual who exercises his or her right to oppose practices
made unlawful by, or who participates in proceedings pursuant to,
Federal equal employment opportunity law.
_______________________________
Date Posted: ____________________
Posting Expires: ________________
29 C.F.R. Part 1614