04A20012
08-19-2002
Wayne E. Day, Petitioner, v. John E. Potter, Postmaster General, United States Postal Service, (Eastern Area) Agency.
Wayne E. Day v. United States Postal Service
04A20012
August 19, 2002
.
Wayne E. Day,
Petitioner,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Eastern Area)
Agency.
Petition No. 04A20012
Request No. 05A10064
Agency No. 4D-280-1157-96
Hearing No. 140-99-8109X
DECISION ON A PETITION FOR ENFORCEMENT
On February 14, 2002, the Equal Employment Opportunity Commission
(EEOC or Commission) docketed a petition for enforcement to examine the
enforcement of an order set forth in Wayne E. Day v. United States Postal
Service, EEOC Appeal No. 01996097 (September 15, 2000). 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 dated March 7, 2001.
Petitioner filed a complaint in which he alleged that the agency
discriminated against him on the basis of disability (blindness).
Petitioner appealed the agency's final decision dismissing his complaint
to the Commission. In EEOC Appeal No. 01996097, the Commission found
that the agency discriminated against complainant on the basis of his
disability (blindness) when he was informed that the position he had
been offered (Information Clerk) was no longer available.
Our Order specified in relevant part that the agency had to
�unconditionally offer the complainant the position of Information Clerk
or a substantially equivalent position, with back pay plus interest,
retroactive to October 28, 1995.� The matter was assigned to a Compliance
Officer and docketed as Compliance No. 06A10818 on May 15, 2001.
On January 15, 2002, petitioner submitted the petition for enforcement
at issue. Petitioner contends that the agency failed to offer him a
position of Information Clerk or a substantially equivalent position.
The evidence in the record shows that rather than offering complainant
a position of Information Clerk or a substantially equivalent position,
the agency chose to place complainant on paid administrative leave while
it attempted to locate a substantially equivalent position to offer him.
However, on or about July 22, 2002, the agency informed complainant that
there are no jobs available in the commuting area and since complainant
has elected not to relocate he would be terminated.
Analysis and Findings
The Commission has consistently held that a substantially equivalent
position is one that is similar in duties, responsibilities, and location
(reasonable commuting distance) of the position which complainant
originally applied for. See Spicer v. Department of the Interior,
Petition No. 04980007 (September 24, 1998); Patterson v. Department of
Agriculture, EEOC Request No. 05940079 (October 21, 1994). Accordingly,
since the agency has failed to offer complainant the position of
Information Clerk or a substantially equivalent position (i.e., which
includes the commuting area of Charlotte, North Carolina), we find that
the agency has failed to comply with our order in Wayne Day v. United
States Postal Service, EEOC Request No. 05A10064 (March 7, 2001).
We note that the burden is on the agency to establish that the position
offered to complainant is in fact substantially equivalent to the position
lost. Rai v. Department of the Interior, EEOC Appeal No. 01901186 (May
17, 1990). In addition, we remind the agency of their obligations under
Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as
amended, 29 U.S.C. � 791 et seq. which includes offering complainant a
substantially equivalent position that he is qualified to perform with
or without a reasonable accommodation.
In addition, we remind the agency of its obligation to provide complainant
with back pay up to the date that complainant either accepts or declines
an offer of reinstatement as set forth in our Order dated March 7, 2001.
Further, we observe that should the agency fail to promptly offer
complainant the position of Information Clerk or a substantially
equivalent position, the Commission is expressly authorized to issue
a �show cause� notice to the Secretary of the agency, and can require
the Secretary to appear in person before the Commission to explain
the agency's continuing failure to comply. 29 C.F.R. �1614.503(e).
In addition, continuing failure to comply with the Order of the
Commission can also result in a case being certified to the Office of
Special Counsel for enforcement action. 29 C.F.R. � 1614.503(f); See
also, Turner v. Department of the Interior, EEOC Petition No. 04980037
(August 5, 1999).
Accordingly, and for the reasons set forth herein, the Petitioner's
request is granted. The agency is directed to comply with our previous
Order as set forth below.
ORDER (D1199)
The agency is ORDERED to take the following remedial action:
Within 30 days from the date this decision becomes final, the agency shall
unconditionally offer the complainant the position of Information Clerk
or a substantially equivalent position, with back pay plus interest,
retroactive to October 28, 1995. Complainant shall have 15 days from
receipt of the offer to accept or decline the offer. Failure to accept
the offer within 15 days will be considered a declination of the offer,
unless the complainant can show that circumstances beyond his control
prevented a response within the time limit. If the offer of appointment
is declined, the agency shall award complainant a sum equal to the back
pay he would have received computed in the manner prescribed by 5 C.F.R. �
550.805, from October 28, 1995 until the date the offer of appointment
was declined. If complainant accepts the offer of appointment, the agency
shall award appellant a sum equal to the back pay he would have received,
computed in a manner prescribed by 5 C.F.R. � 550.805, from October 28,
1995 to the commencement day of the new position. Interest on back pay
shall be included in the back pay computation.
The agency shall determine 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 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."<1>
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
August 19, 2002
__________________
Date
1 While this portion of our Order was not directly raised by Petitioner,
we remind the agency of its continuing obligation to provide Petitioner
with the appropriate back pay up until the date he accepts or declines
an offer of reinstatement by the agency.