04A30012_04A30013final
12-01-2003
Wayne Angin and Maria Angin v. United States Postal Service
04A30012; 04A30013
December 1, 2003
Wayne Angin and Maria Angin,
Petitioners,
v.
John E. Potter,
Postmaster General,
United States Postal Service
(Pacific Area),
Agency.
Petition Nos. 04A30012 & 04A30013
Appeal Nos. 01980302; 01982262
Agency Nos. 4F-940-1219-95; 4F-940-1218-95
Hearing Nos. 370-96-X2582; 370-96-X2583
DECISION ON A PETITION FOR ENFORCEMENT
On October 29, 2002, the Equal Employment Opportunity Commission (EEOC
or Commission) docketed two petitions for enforcement to examine the
enforcement of an order set forth in Wayne and Maria Angin v. United
States Postal Service, EEOC Appeal Nos. 01980302 & 01982262 (August
22, 2001).
In EEOC Appeal Nos. 01980302 and 01982262, the Commission found that
the agency violated Section 501 of the Rehabilitation Act of 1973
(Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq. when it failed
to reasonably accommodate petitioners in their original work place but
instead reassigned them to an alternative work location.
The Commission's Order stated as follows, in pertinent part:
1. Within sixty (60) calendar days of the date this decision becomes
final, the agency is directed to accommodate both Complainant 1 and
Complainant 2 in their original positions at the West Portal Station.
2. Within sixty (60) calendar days of the date this decision becomes
final, the agency is directed to restore to both Complainant 1 and
Complainant 2 any lost benefits that may have resulted from the transfer
out of the West Portal Station.
The matter was assigned to a Compliance Officer and docketed as Compliance
Nos. 06A11875 and 06A21723 on September 23, 2001. On October 29, 2002,
Petitioners submitted the petitions for enforcement at issue.
Petitioner Wayne Angin (hereinafter �Petitioner 1") contends that the
agency failed to pay the appropriate back pay award. Petitioner Maria
Angin (hereinafter �Petitioner 2") contends that: (1) the agency failed
to return her to work; and (2) the agency failed to pay the appropriate
back pay award.
Analysis and Findings
Petitioner 1's Back Pay Claim
Petitioner 1 claims that he is entitled to �out-of-schedule pay.�
Out-of-schedule pay is a form of premium pay due to employees who are
required to work outside of their regularly assigned schedule. See Arnold
v. United States Postal Service, EEOC Appeal No. 07A20087 (June 25, 2003);
Sansosti v. United States Postal Service, EEOC Petition No. 04990004
(June 17, 1999). Petitioner 1 does not allege that he was made to
work a schedule other than his regularly assigned schedule or that he
missed the opportunity to work out-of-schedule because he was reassigned
to a different work location. Rather, Petitioner 1 claims that he is
entitled to �out-of-schedule pay� because the schedule to which he was
assigned, and which he worked, was not the schedule to which he should
have been assigned. Relief under the Rehabilitation Act is limited to
the restoration of lost benefits, such as back pay, pension benefits,
seniority, fringe benefits, and other concomitants of employment which
would have been earned or accrued absent discrimination. See Albemarle
Paper Co. v. Moody, 422 U.S. 405 (1975). Since the evidence does not
support the finding that Petitioner 1 would have earned �out-of-schedule
pay� had he been allowed to remain in his original position at the
West Portal Station, payment of the sums sought would place him in a
far better position than he would have been absent the discrimination.
See Bernhardt v. United States Postal Service, EEOC Request No. 05A10285
(February 1, 2002); Sansosti v. United States Postal Service, EEOC
Petition No. 04990004 (June 17, 1999); Alford v. United States Postal
Service, EEOC Request No. 05901179 (December 31, 1990). As such, such
an award of �out-of-schedule pay� would be tantamount to an award of
punitive damages. See Thompson v. United States Postal Service, EEOC
Request No. 05880335 (October 6, 1988). Accordingly, we find that the
agency has complied with our previous Order with respect to Petitioner 1.
Petitioner 2's Reinstatement and Back Pay
The record indicates that some time in 1995, Petitioner 2 left her
position with the agency and began collecting Office of Worker's
Compensation Program (OWCP) benefits. On August 28, 2001, Petitioner 2
was employed as a Registration Clerk for the Department of Motor Vehicles.
There is no EEO claim or finding that Petitioner 2's departure from the
agency in 1995 was due to discrimination.
Petitioner 2 argues that she is entitled to be placed back into a position
making the same salary that she had made prior to leaving in 1995.
In addition, it appears that Petitioner 2 contends that she is entitled
to back pay equal to the difference in pay between her former salary
with the agency and her OWCP benefits. In addition, Petitioner 2 argues
that she is entitled to the difference between her former salary with
the agency and the salary she earns with the Department of Motor Vehicles.
The Commission finds that Petitioner 2 is not entitled to reinstatement
or back pay since she voluntarily left the agency. We note that the
record is devoid of evidence which supports the finding that the agency's
failure to reasonably accommodate Petitioner 2 caused her departure.
Moreover, we note that Petitioner 2 has not filed an EEO claim alleging
constructive discharge.
Accordingly, with respect to Petitioner 2, we find that the evidence of
record shows that the agency has fully complied with our previous Order.
Therefore, based on a review of the record, and for the foregoing reasons,
the Commission DENIES Petitioners' petition for enforcement and finds
that the agency has fully complied with our previous decision in Wayne and
Maria Angin v. United States Postal Service, EEOC Appeal Nos. 01980302 &
01982262 (August 22, 2001).
PETITIONER'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
__________________
Date