07a30110
04-29-2004
Viola Miller, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Viola Miller v. United States Postal Service
07A30110
April 29, 2004
.
Viola Miller,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 07A30110
Agency No. 4-F-913-1056-96
Hearing No. 340-A1-3365X
DISMISSAL OF APPEAL
The agency issued a final order, dated May 28, 2003, and subsequently
filed the instant appeal with the Commission on June 9, 2003, each
concerning the captioned complaint, which complainant brought pursuant
to Title VII of the Civil Rights Act of 1964 (Title VII), as amended,
42 U.S.C. � 2000e et seq. and Section 501 of the Rehabilitation Act of
1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.
In her formal complaint, complainant alleged that she was subjected to
discrimination on the bases of race (African-American) and in reprisal
for prior EEO activity when:
The agency charged her with AWOL and issued her a Letter of Warning for
not working on December 23, 1995.
Additionally, complainant claimed discrimination on the bases of race,
disability (back injury residuals, hypertension, cancer) and in reprisal
for prior protected activity when:
The agency sent her home and denied her eight hours of work on more than
one occasion, from February 1995 through December 1996, thereby failing
to provide a reasonable accommodation for her disability.
At the conclusion of the investigation, complainant received a copy
of the investigative report and requested a hearing before an EEOC
Administrative Judge (AJ). The AJ rendered a summary judgment decision
(Hearing No. 340-97-3385X) finding no discrimination, which the agency
adopted in a final action. On appeal, the Commission reversed the
agency's final action, and remanded the case to the agency to schedule
a hearing. See Miller v. U.S. Postal Service, EEOC Appeal No. 01A05436
(February 9, 2001).
On March 20, 2003, at the conclusion of this hearing, the AJ rendered a
decision, finding that complainant prevailed in her complaint concerning
the agency's failure to provide her with a reasonable accommodation
for her disabilities, but that she did not prevail in her other claims.
As a remedy, the AJ ordered retroactive reassignment of complainant to
a suitable position, with back pay and benefits, compensatory damages,
attorney's fees, and the posting of a notice.
The certificate of service appended to the AJ's decision, reflected
that it was mailed to all of the parties, including the agency's
representative, on April 7, 2003, with a notice that receipt would be
presumed within five (5) calendar days from this date. In making this
calculation, we find that the agency's date of presumptive receipt is
April 12, 2003. However, because this date falls on a Saturday, we find
that the AJ's decision was presumptively received by the agency on April
14, 2003, the following Monday.
The agency's final order, dated May 28, 2003, includes a statement
that it received the AJ's decision on April 18, 2003. As noted above ,
the instant appeal was then filed on June 9, 2003. In responding to the
appeal, complainant, in pertinent part, argues that the agency filed its
appeal beyond the 40-day time limit, and requests that the Commission
dismiss it for that reason.
Pursuant to 29 C.F.R. � 1614.110(a), if an agency decides not to fully
implement the decision of an AJ then it must issue a final order and
simultaneously file an appeal with the Commission in accordance with 29
C.F.R. � 1614.403. A copy of the appeal must be appended to the final
order. If the agency fails to properly issue a final order and file an
appeal simultaneously with the issuance of that order, as in the case
at hand, the AJ's decision will be deemed ratified by the agency upon
expiration of the agency's 40-day period for accepting or not accepting
the AJ's decision. See Equal Employment Opportunity Management Directive
110, as revised November 9, 1999, at 9-7, note 4.
In this case, the agency's final order contains a statement that the AJ's
decision was received on April 18, 2003; however, the agency provides no
evidence to substantiate this contention. Furthermore, we note that the
AJ's decision was mailed to the agency's representative of record, to the
address provided by the agency. Review of the record further reflects
that all notices, documents, and other correspondence was routinely
mailed to the agency's representative throughout the hearing process.
We also find that the agency's representative filed this appeal on behalf
of the agency.
Therefore, for these reasons, we conclude that the agency presents no
evidence to rebut the presumption of its receipt of the AJ's decision
on April 14, 2003.
In order to be timely, the agency had to issue its final order, and
file the instant complaint, by May 27, 2003.<1> We therefore find
the agency's June 9, 2003 appeal to be untimely and the AJ's decision
ratified. See Rogers v. Department of Homeland Security, EEOC Appeal
No. 07A20062 (September 29, 2003); request for reconsideration denied,
EEOC Request No. 05A40180 (February 23, 2003). Furthermore, we note
that even based on the date of the agency's final order, May 28, 2003,
the instant appeal would still be deemed untimely.
Accordingly, the agency's appeal is DISMISSED. The Commission directs
the agency to provide relief consistent with the AJ's decision, as stated
in the Order below.
ORDER
Pursuant to 29 C.F.R. � 1614. 505, the agency shall immediately
identify all vacant funded positions or assignments in complainant's
local commuting area during the 1995/1996 time period, with equivalent
pay and status to complainant's letter carrier position, and determine,
with complainant's input and per the requirements of the Rehabilitation
Act, which of these position she is able to perform, with or without an
accommodation. If a vacant funded position is identified, complainant
shall be placed in the position, with seniority retroactive to the date
she began experiencing a loss in pay as the result of her becoming a
light duty employee. If no vacant funded position is identified, the
agency shall reassign complainant into the next vacant, funded position
for which she is qualified, with or without reasonable accommodation,
that is equivalent in terms of grade and pay to complainant's full-time
letter carrier position.
The agency shall pay complainant back-pay and attendant benefits for the
times that complainant was sent home early, in the manner prescribed by
5 C.F.R. � 550.805, and shall reimburse her for the �SWOP,� specifically
the time she lost from work from March 24, 1995 to May 15, 1995.
The agency shall pay compensatory damages, as set forth in the AJ's
decision.
The agency shall post the notice attached to this decision, advising
its employees that it will not fail to accommodate the restrictions of
its employees with disabilities, and as set forth in the order below.
Within thirty (30) calendar days of the date of this decision, the agency
shall pay complainant the amount of $30,628.13 in attorney's fees, and
the amount of $1,771.93 in costs, and any additional amounts associated
with the processing of this appeal, as set forth in the order below.
Copies of all pertinent documentation verifying completion of the above
actions be sent to the Compliance Officer as referenced below.
INTERIM RELIEF (F0900)
When the agency requests reconsideration and the case involves a
finding of discrimination regarding a removal, separation, or suspension
continuing beyond the date of the request for reconsideration, and when
the decision orders retroactive restoration, the agency shall comply with
the decision to the extent of the temporary or conditional restoration
of the complainant to duty status in the position specified by the
Commission, pending the outcome of the agency request for reconsideration.
See 29 C.F.R. � 1614.502(b).
The agency shall notify the Commission and the complainant in writing at
the same time it requests reconsideration that the relief it provides
is temporary or conditional and, if applicable, that it will delay
the payment of any amounts owed but will pay interest from the date
of the original appellate decision until payment is made. Failure of
the agency to provide notification will result in the dismissal of the
agency's request. See 29 C.F.R. � 1614.502(b)(3).
POSTING ORDER (G0900)
The agency is ordered to post at its Lancaster, California postal
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.
ATTORNEY'S FEES (H0900)
If complainant has been represented by an attorney (as defined by
29 C.F.R. � 1614.501(e)(1)(iii)), he/she is entitled to an award of
reasonable attorney's fees incurred in the processing of the complaint.
29 C.F.R. � 1614.501(e). The award of attorney's fees shall be paid
by the agency. The attorney shall submit a verified statement of fees
to the agency -- not to the Equal Employment Opportunity Commission,
Office of Federal Operations -- within thirty (30) calendar days of this
decision becoming final. The agency shall then process the claim for
attorney's fees in accordance with 29 C.F.R. � 1614.501.
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 (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
April 29, 2004
__________________
Date
1May 24, 2003 is the fortieth calendar day
after April 14, 2003 (the date of the agency's presumptive receipt of
the AJ's decision). However, because this date falls on a Saturday, and
the following Monday (May 26, 2003) is the Memorial Day federal holiday,
we find that the time limit is extended to May 27, 2003.