01a51693
12-15-2005
Yolanda Wanat, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Yolanda Wanat v. United States Postal Service
01A51693
December 15, 2005
.
Yolanda Wanat,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A51693
Agency No. 4E-680-0027-02
Hearing No. 320-2003-08198X
DECISION
The complainant timely initiated an appeal from a final agency decision
(FAD) concerning his 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. For the
following reasons, the Commission affirms the agency's final decision.
Complainant alleged that the agency discriminated against her on the
bases of national origin (Hispanic), disability (shoulder impairment),
and reprisal for prior EEO activity when she received a seven day
suspension, denied her change of schedule request, reduced her hours,
denied her request for sick leave, issued her a 14-day suspension, and
failed to reasonably accommodate her disability.<1> Following a hearing
an EEOC Administrative Judge (AJ) issued a decision finding that the
agency failed to accommodate complainant and that the agency retaliated
and discriminated against complainant based on her disability when it
placed her on light duty and provided her with only two to three hours
of work per day from June 10, 2002 to August 21, 2002.<2> The AJ found
that the agency did not retaliate or discriminate against complainant
with respect to the discipline issued to her, the denial of her request
for a change of schedule, and the denial of her request for sick leave.
The agency adopted the AJ's decision and complainant filed the instant
appeal. She made no arguments.
After a review of the record in its entirety, including consideration
of all statements submitted on appeal, it is the decision of the Equal
Employment Opportunity Commission to affirm the final agency order. The
Administrative Judge's ultimate findings as set forth above, are supported
by the record. To the extent the agency has not already done so, it
shall comply with the Order as set forth below.
ORDER<3>
1. The agency shall pay to complainant, not later than 60 days from
the date this decision becomes final, all backpay and other benefits
due to Complainant as a result of her reduced work schedule from when
she was provided with fewer work hours (approximately June 10, 2002)
to August 21, 2002 (the date she was removed from employment). The
agency shall determine the appropriate amount of back pay with interest
and other benefits due Complainant pursuant to 29 C.F.R. �1614.501, no
later than sixty (60) days after the date this decision becomes final.
(In no event shall the agency charge complainant for backpay owed.)
Complainant shall cooperate in the agency's efforts to compute the amount
of backpay, interest and benefits due, and shall provide all relevant
information requested by the agency. If there is a dispute regarding
the exact amount of backpay and/or benefits, the agency shall issue a
check to complainant for the undisputed amount within sixty (60) calendar
days of the date the agency determines the amount it believes to be due.
Complainant may petition for enforcement for the amount in dispute as
set forth below.
2. Not later than sixty (60) days from the date on which this decision
becomes final, the agenct shall restore, credit, and/or reimburse any
annual or sick leav, or leave without pay, that complainant used from
April 2002 through August 21, 2002, The agency shall determeine the
amount of leave due to complainant, pursuant to 29 C.F.R. � 1614.501, no
later than sixthy (60) days after the date this decision becomes final.
Complainant shall cooperate in the agency's efforts to compute the amount
of leave due, and shall provide all relevant information requested by the
agency. If there is a dispute regarding the exact amount of leave due,
the agency shall icredit and/or pay complainant for the undisputed amount
within sixty (60) calendar days of the date the agency determines the
amount it believes to be due. Complainant may petition for enforcement
for the amount in dispute as set forth below.
3. Within thirty (30) calendar days of the date this decision becomes
final, the agency shall take corrective, curative, and preventative
action to ensure that disability discrimination do not recur, including
but not limited to providing training against discrimination in
employment to the individuals identified in the AJ's Order as responsible
management officials. The training shall include focus on the agency's
responsibilities under the rehabilitation Act as set forth in the
AJ's Order.
4. The agency shall consider taking disciplinary action against
the responsible management officials as identified in the AJ's Order.
If the agency decides to take disciplinary action, it shall identify the
action taken. If the agency decides not to take disciplinary action, it
shall set forth the reason(s) for its decision not to impose discipline.
5. The agency shall comply with the Posting Order below.
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 verifying
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.
POSTING ORDER (G0900)
The agency is ordered to post at its Omaha, Nebraska 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.
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 (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
December 15, 2005
__________________
Date
POSTED BY ORDER OF THE
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
An Agency of the United States Government
This Notice is posted pursuant to an Order by the United States Equal
Employment Opportunity Commission dated which found that a
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.,
has occurred at this facility.
Federal law requires that there be no discrimination against any employee
or applicant for employment because of the person's RACE, COLOR, RELIGION,
SEX, NATIONAL ORIGIN, AGE, or DISABILITY with respect to hiring, firing,
promotion, compensation, or other terms, conditions or privileges
of employment. The United States Postal Service, Omaha, Nebraska,
confirms its commitment to comply with these statutory provisions.
The United States Postal Service, Omaha Nebraska, supports and will
comply with such Federal law and will not take action against individuals
because they have exercised their rights under law.
The United States Postal Service, Omaha, Nebraska, has been found to
have discriminated against an employee when she was denied reasonable
accommodation of her disability and was not permitted to work more than
two hours a day. The United States Postal Service, Omaha Nebraska, has
been ordered to reimburse the employee for lost benefits and wages and
provide training regarding management's duties under the Rehabilitation
Act to appropriate managers. The United States Postal Service, Omaha,
Nebraska, will ensure that officials responsible for personnel decisions
and terms and conditions of employment will abide by the requirements
of all Federal equal employment opportunity laws.
The United States Postal Service, Omaha, Nebraska, will not in any
manner restrain, interfere, coerce, or retaliate against any individual
who exercises his or her right to oppose practices made unlawful by,
or who participates in proceedings pursuant to, Federal equal employment
opportunity law.
_______________________________
Date Posted: ____________________
Posting Expires: ________________
29 C.F.R. Part 1614
1For purposes of analysis, the Commission assumes, without finding,
that complainant is a person with a disability. See 29 C.F.R. �
1630.2(g)(1).
2Complainant was removed from her position and appealed her removal to
the Merit Systems Protection Board (MSPB). Complainant petitioned for
review of the MSPB to the Commission. The Commission concurred with the
MSPB. Wanat v. USPS. Petition No. 03A40080 (May 14, 2004)
3The AJ found that complainant failed to produce evidence nor did she
provide testimony of nonpecuniary damages, and as such did not award
compensatory damages.