04a40024
11-01-2004
William A. Cisco, Petitioner, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
William A. Cisco v. United States Postal Service
04A40024
November 1, 2004
.
William A. Cisco,
Petitioner,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Petition No. 04A40024
Appeal No. 01A04412
Agency No. 1-F-957-0008-00
DECISION ON A PETITION FOR ENFORCEMENT
On June 3, 2004, the Equal Employment Opportunity Commission (EEOC
or Commission) docketed a petition for enforcement to examine the
enforcement of an order set forth in William A. Cisco v. United
States Postal Service, EEOC Appeal No. 01A04412 (October 18, 2002).
This petition for enforcement is accepted by the Commission pursuant to
29 C.F.R. � 1614.503.
In EEOC Appeal No. 01A04412, the Commission found that the agency
breached certain provisions of a January 18, 2000 settlement agreement.
The Commission ordered the agency to undertake the following measures
to remedy its breach:
1. Within ten (10) calendar days from the date this decision becomes
final, the agency shall remove and destroy petitioner's pre-hire
medical records obtained from the �Kaiser�medical provider, and to
provide petitioner with written verification of this action.
2. Within thirty (30) calendar days from the date this decision becomes
final, the agency shall review the fee petition submitted by petitioner's
attorney and make payment to petitioner's attorney for all reasonable
attorney's fees and costs.
3. Within thirty (30) calendar days from the date this decision becomes
final, the agency shall:
Provide petitioner with a detailed explanation regarding the estimated
number of hours the back pay award is based on, to include any
variations in the hourly rates for any of these hours, and to reconcile
any differences between its estimate and hourly rates, and that computed
by the union.
Should this review and reconciliation yield a higher back pay award,
the agency is instructed to pay petitioner this additional amount.
We further instruct the agency to pay petitioner the $3,035.00 it
improperly deducted as an off-set for unemployment compensation, and
to retroactively restore petitioner's life insurance benefits, to the
extent it has not already done so.
4. Within thirty (30) calendar days from the date this decision becomes
final, the agency shall provide petitioner with a list of vacant
office positions, suitable for his transfer, and to facilitate his
transfer, as appropriate, to any suitable transfer(s) he may desire,
notwithstanding the existence of a �hiring freeze.� The agency is
instructed to continue to assist petitioner in obtaining a transfer to
a suitable office position, primarily by informing him of vacancies at
the time they occur, until he successfully receives such a transfer,
or for at least one year after the date of the issuance of this decision.
The matter was assigned to a Compliance Officer and docketed as Compliance
No. 06A30115 on October 17, 2002. When petitioner's attorney challenged
the agency's compliance with respect to items 3 (subparts 1 and 2),
and item 4 as identified above, the Commission docketed a petition for
enforcement on June 3, 2004.
In brief, regarding the back pay calculation, petitioner, through
his attorney, contends that the agency used two different methods to
calculate the number of hours, per category of pay, with two different
results. Petitioner contends that he was not paid the full amount under
either method. Petitioner contends that he declined to accept the third
check issued to him as payment in full because the agency did not provide
an explanation regarding how it calculated the number of hours or rate
of pay.
Regarding the rate, petitioner contends that his back pay should
have been calculated at the �5D� rate, instead of at the �5A� rate.
Petitioner notes that he was reinstated at �5D� after his illegal
discharge, and argues that this jump in pay level was designed to
mask a period during which he should have been paid at a higher level.
Petitioner demands a clear and �plain English� explanation from the
agency regarding the back pay calculation.
Petitioner also argues that although an agency official provided him
with a list of vacancies in January 2003, a personnel officer informed
him that it could not be used for a transfer. Moreover, petitioner
notes that he was out of work because of his disability from March
2003 to March 2004. In that regard, petitioner indicates that he has
been placed in a temporary desk assignment, which must be periodically
re-certified, arguing that the Commission's order mandates that the
agency facilitate his transfer to a suitable desk job of his choice.
Finally, petitioner requests additional attorney's fees because of the
work done to obtain compliance with the Commission's order, especially
analyzing the agency's back pay documents without the benefit of an
explanation.
In reviewing the record complied in association with EEOC Compliance
No. 06A30115, we find that agency correspondence dated November 24,
2003, indicates that it initially calculated the number of hours
and categories of pay for petitioner's back pay award by comparing
two employees with more seniority than petitioner, and one with less
seniority, and applying the average to petitioner. However, when the
agency submitted these calculations for processing, the calculations
were rejected, because this �comparative�method was not to be used for a
part-time flexible employee such as petitioner. Instead, the personnel
staff was instructed to calculate back pay in reference to the pay periods
prior to petitioner's removal. Petitioner was awarded $10.07 as a result.
However, the agency noted that petitioner then appealed to the Commission,
and the Commission ordered the re-calculation at issue here.
The agency's correspondence reflects that a named agency official,
a labor relations specialist (LRS), and the union president, met to
determine the amount of work hours that petitioner was owed, and reached
an agreement on this amount. The agency then paid petitioner this amount
as back pay and interest.
The ninety-seven pages of documentation submitted by the agency in
support of the statements in its November 24, 2003 correspondence,
includes affidavits from the personnel specialist who performed the
back pay calculation, verifying the instructions to change methodology.
Further, the personnel specialist attested that in conjunction with
information from the union, the back pay was yet again recalculated,
based on a comparative methodology, and that petitioner was paid based
on this amount. LRS also provided an affidavit attesting, in pertinent
part, that he and the union president together determined how many
hours would be reasonable to afford petitioner as back pay, compared
with other employees at the facility, and that petitioner was paid based
on this number of hours. The agency also provided documentary evidence
illustrating the three changes in the calculations, and confirming that
petitioner was issued two checks on June 6, 2003, one for $4,536.73,
and another for $2,156.91, for back pay and interest, and provided with
the calculations used to determine these amounts.
Based on the above described evidence, we find that the agency
substantially complied with item 3 (subparts 1 and 2) of the Commission's
order. Specifically, we find that the agency informed petitioner that
the final round of back pay calculations was performed in concert with
the union president, who concurred in the amount of back pay awarded
to petitioner. In particular, the affidavit of LRS explains that a
comparative analysis was ultimately used to calculate the back pay award:
�Both the APWU union president, [name of union president], and I made
a determination as to how many hours would be reasonable, compared with
other employees at the facility.� Although we note that petitioner also
argues that a �5D� rate should have been used in this calculation, we
find that the union president, who performed the calculation in concert
with LRS, apparently concurred that the �5A� rate was appropriate.
Moreover, outside of speculation, we find that petitioner provides no
justification to use the �5D� rate.
Regarding item 4, we note that the compliance record contains agency
correspondence from the Manager of Personnel Services (MPS), Sacramento
District, to petitioner, dated January 22, 2003. Therein, MPS notes
that petitioner was twice provided with a list of vacancies, and encloses
a current list of vacancies for Sales and Service Associate positions
in the Sacramento District. MPS instructs petitioner to review the list
and to let him know if he is interested in transferring to a particular
office, noting that once petitioner designates a particular office,
MPS will inform the Postmaster of his request, and furnish the required
records the Postmaster will need to make a selection decision.
In his petition, petitioner indicates that he took the list of vacancies
to an un-named personnel officer at the �West Sacramento Main Office�
to arrange for a transfer, but was rebuffed. However, we find that
petitioner's actions did not comport with the instructions provided in the
January 22, 2003 letter, i.e., to contact MPS to facilitate a transfer.
Moreover, the record contains agency correspondence dated May 29, 2003,
identifying four facilities with vacant clerk positions; and the June
6, 2003 correspondence accompanying petitioner's back pay checks also
informs petitioner that he should refer to the MPS's letter regarding
a transfer, and to contact the Sacramento District Office to inquire
about future vacancies.
Based on this evidence, we conclude that the agency substantially complied
with item 4. Specifically, we find that the agency provided the requisite
list of vacancies, and demonstrated an intent to facilitate a transfer
for petitioner, but that petitioner did not contact the proper office
or official to implement this action. Further, the record demonstrates
that the agency remains willing to assist petitioner in transferring to
a suitable position.
Finally, based on our determination herein, we find that petitioner has
not prevailed in his petition for enforcement, such that an award of
attorney's fees is not warranted.
In summary, after careful review, including petitioner's submission in
support of this petition for enforcement, we find that the agency has
substantially complied with the Commission's Order in Appeal No. 01A04412.
Accordingly, for the reasons set forth above, we DENY the petition
for enforcement.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
The Commission may, in its discretion, reconsider the decision in this
case if the petitioner 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).
PETITIONER'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
November 1, 2004
__________________
Date