01996768
02-21-2002
Willie Williams, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Southwest Area), Agency.
Willie Williams v. United States Postal Service
01996768
February 21, 2002
.
Willie Williams,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Southwest Area),
Agency.
Appeal No. 01996768
Agency No. 4G-752-0142-97
Hearing No. 310-98-5496X
DECISION
Complainant timely initiated an appeal from the final agency decision
(FAD) concerning his equal employment opportunity (EEO) complaint of
unlawful employment discrimination in violation of 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. The appeal is accepted pursuant to
29 C.F.R. � 1614.405. Complainant alleges he was discriminated against
based on race (Black) and disability (right foot impairment, bursitis,
and arthritis) when: (1) on December 22, 1996, he was denied further
training as a 204-B acting supervisor and was no longer permitted to
serve as acting supervisor; and (2) on January 3, 1997, he was notified
that he failed to qualify for the Associate Supervisor Program.
Complainant filed his formal complaint on March 21, 1997. At the
conclusion of the agency's EEO investigation, complainant was provided a
copy of the investigative report and requested a hearing before an EEOC
Administrative Judge (AJ). The AJ issued a recommended decision without
a hearing, finding discrimination based on disability with respect to
issue (1) referenced above, and finding in favor of the agency on the
remainder of complainant's claims.
The record establishes that the agency received the AJ's recommended
decision on June 17, 1999.<1> By FAD dated August 13, 1999, and received
by complainant's counsel on August 16, 1999, the agency declined to
adopt the AJ's findings and conclusions, and issued a finding of no
discrimination on all claims. However, the FAD dated August 13, 1999
did not contain appeal rights. By decision dated August 27, 1999, and
received by complainant's counsel on August 30, 1999, the agency issued
a corrected FAD, which stated that it superceded the August 13, 1999 FAD
because the agency had failed to provide appeal rights with that decision.
On appeal, complainant contends that the agency's August 13, 1999 FAD did
not comply with the applicable regulations because it did not contain
appeal rights, and that the August 27, 1999 FAD, which did satisfy the
regulatory requirements, was untimely. Complainant therefore contends
that because the agency failed to issue a FAD within the applicable time
frame, the AJ's recommended decision became the agency's final decision.
The agency has not filed an appeal brief responding to this argument.
On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply to all
federal sector EEO complaints pending at any stage in the administrative
process. For purposes of determining whether the FAD was timely issued
in this case, we must apply the prior version of the regulations which
was in effect at the relevant time.
The prior version of EEOC Regulation 29 C.F.R. � 1614.110, which was
applicable at the time the agency received the AJ's decision in this
case, required the agency to issue a final decision within 60 days of
receiving the findings and conclusions of the AJ. The regulation also
required that the final decision "contain notice of the right to appeal
to the Commission, the name and address of the agency official upon whom
an appeal should be served, notice of the right to file a civil action
in federal district court, the name of the proper defendant in any
such lawsuit and the applicable time limits for appeals and lawsuits."
As the agency concedes, its August 13, 1999 FAD did not satisfy the
requirement to issue appeal rights. The agency did not provide appellant
with the required information until its corrected FAD was issued on
August 30, 1999, which was more than 60 days after the agency received
the AJ's recommended decision. The prior version of EEOC Regulation 29
C.F.R. � 1614.109(g) provides in part: "If an agency does not, within
60 days of receipt, reject or modify the findings and conclusions of
the administrative judge, then the findings and conclusions of the
administrative judge and the relief ordered shall become the final
decision of the agency and the agency shall notify the complainant of
the final decision in accordance with � 1614.110." Here, the agency's
final decision was issued more than 60 calendar days after its receipt of
the AJ's recommended decision and the complete case file. Accordingly,
the agency is bound by the AJ's recommended decision, and the agency's
decision is without legal effect. See Gibson v. Department of the Army,
EEOC Appeal No. 01950603 (October 29, 1996); Martin v. Department of
the Interior, EEOC Appeal No. 01931768 (August 5, 1993).
Therefore, the FAD is REVERSED and the decision of the Administrative
Judge finding disability discrimination with respect to issue (1) is
deemed to be the final agency action on the instant complaint. The agency
is ORDERED to provide relief as directed in the following ORDER.<2>
ORDER (D0900)
The agency is ordered to take the following remedial action:
1. 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 back pay period
shall run from the effective date of complainant's removal as acting
supervisor until the date the facility at issue ceased using 204-B acting
supervisors due to the implementation of its Associate Supervisor Program.
Complainant shall receive back pay for the amount of time equivalent
to the amount of time served by the most frequently used 204-B acting
supervisor during that time period. 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 issues of compensatory damages and attorney's fees and costs
are REMANDED to the agency. The agency shall conduct a supplemental
investigation of the compensatory damages issue. Complainant,
through counsel, shall submit a request for attorney's fees and costs
in accordance with the Attorney's Fees paragraph set forth below.
No later than sixty (60) days after the agency's receipt of the
attorney's fees statement and supporting affidavit, the agency shall
issue a final agency decision addressing the issues of attorney's fees,
costs, and compensatory damages. The agency shall submit a copy of the
final decision to the Compliance Officer at the address set forth below.
3. The agency shall provide training to the responsible managers and
supervisors regarding their obligations under the Rehabilitation Act.
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 Greenville, Texas 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
February 21, 2002
__________________
Date
1See notation on copy of decision in record,
and letter from Administrative Judge to complainant's counsel dated
August 23, 1999, stating that Federal Express records confirm the agency's
receipt of the recommended decision on June 17, 1999.
2The AJ found that complainant was not entitled to reinstatement
to the acting supervisory position at issue, or an equivalent post,
because the agency had since discontinued using the acting supervisory
program at issue. On appeal, complainant does not contest the AJ's
finding in this regard, or any other aspect of the relief proposed by
the AJ. Accordingly, we award the same relief proposed by the AJ in
her recommended decision, with the addition of requiring training for
the responsible management officials.