01A23421
09-04-2003
Thomas L. Barnette, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Thomas L. Barnette v. United States Postal Service
01A23421
September 4, 2003
.
Thomas L. Barnette,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A23421
Agency No. 4H-300-0148-00
Hearing No. 110-AO-8586X
DECISION
Complainant timely initiated an appeal from the agency's final
order concerning his equal employment opportunity (EEO) complaint of
unlawful employment discrimination in violation of Section 501 of the
Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. �
791 et seq. The appeal is accepted pursuant to 29 C.F.R. � 1614.405.
For the following reasons, the Commission affirms the agency's final
order which implements the AJ's finding of discrimination.
The record reveals that complainant, a Distribution Clerk at the agency's
LaGrange Post Office facility, filed a formal EEO complaint on March 1,
1999, alleging that the agency had discriminated against him on the basis
of disability (herniated disc, scoliosis, disc fusion) when his work hours
were reduced during the period between June 16, 1998 and July 24, 1998.
The complainant met all the procedural requirements and requested
a hearing. After a hearing the AJ concluded that the agency had
discriminated against complainant in failing to provide him with a
reasonable accommodation and in subjecting him to disparate treatment
based on his disability. In the agency's notice of final action
dated January 23, 2002 the agency accepted the AJ's determination of
discrimination and the remedies outlined in the AJ's Order.
Complainant filed this appeal alleging that the agency failed to implement
all of the remedies awarded by the AJ, specifically the back pay awarded,
restoration of annual leave, 401K matching funds and interest thereon,
and the posting of a notice.<1> Complainant contended that he contacted
the agency on or about April 24, 2002, and numerous times thereafter
regarding its noncompliance, but that no satisfactory response was given.
The agency contends that this appeal is improperly taken and is not the
correct forum to address complainant's concerns regarding noncompliance.
It contends that it is unaware that it has not complied with the AJ's
order for relief and that complainant has not notified it of the specific
items it has not implemented.
ANALYSIS AND FINDINGS
Normally, a complainant may petition the Commission for enforcement
of a decision issued under the Commission's appellate jurisdiction.
29 C.F.R. �1614.503(a). Here, the agency decided to implement the AJ's
finding of discrimination and did not contest the remedies the AJ ordered.
In this instance, where there is no appeal by either party of the decision
of the AJ, the Commission will adopt the AJ's decision and all make whole
relief ordered by the AJ so long as it falls within the parameters of
the law. A review of the relief ordered indicates that it is consistent
with the remedies and relief generally outlined by our regulations. 29
C.F.R. �1614.501. Therefore, the agency is directed to comply in full
with the AJ's order for relief to the extent it has not already done so.
The order is set forth in full below.
ORDER (D0403)
The agency is ordered to take the following remedial action:
The agency will pay complainant back pay for the period June 16, 1998
through July 24, 1998 at his salary of PS-5 during that time period
for 158.9 hours along with interest and other benefits described below.
The agency shall determine the appropriate amount of back pay, with
interest, and other benefits due complainant, pursuant to 29 C.F.R. �
1614.501, no later than sixty (60) calendar days after the date this
decision becomes final. 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. The agency will credit complainant with annual and sick leave he
would have earned during the time period above had he worked 38.56
hours per week before the discrimination occurred.
3. The agency will restore to the complainant 35 hours of annual
leave and any sick leave complainant was forced to use as a result of
the discrimination.
4. The agency will match complainant's 401 K contribution during the
relevant period in the amount of $118.78 plus interest.
5. The agency will post notice as set forth in the order below.
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.
POSTING ORDER (G0900)
The agency is ordered to post at its LaGrange, Georgia facility 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.
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 (S0900)
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, Director
Office of Federal Operations
September 4, 2003
__________________
Date
1Complainant stated that the agency paid
compensatory damages as awarded by the AJ and as such he is not claiming
noncompliance with that aspect of the AJ's order.