Angel Lebron, Appellant,v.William J. Henderson, Postmaster General, United States Postal Service (Pacific/Western), Agency.

Equal Employment Opportunity CommissionMar 31, 2000
04990016 (E.E.O.C. Mar. 31, 2000)

04990016

03-31-2000

Angel Lebron, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service (Pacific/Western), Agency.


Angel Lebron v. United States Postal Service

04990016

March 31, 2000

Angel Lebron, )

Appellant, )

) Petition No. 04990016

v. ) Agency No. 5F-1020-92

)

William J. Henderson, )

Postmaster General, )

United States Postal Service )

(Pacific/Western), )

Agency. )

)

DECISION

INTRODUCTION

The Commission docketed the above-captioned matter in response to a

petition for enforcement filed by Angel Lebron (hereinafter referred to

as petitioner) with the Equal Employment Opportunity Commission (EEOC

or Commission) requesting enforcement of the Order for remedial relief

set forth in Angel Lebron v. William J. Henderson, Postmaster General,

United States Postal Service, EEOC Appeal No. 01943052 (January 19,

1996).<1> Pursuant to that Order, the Commission directed the United

States Postal Service (hereinafter referred to as agency) to redress

petitioner following a finding that agency officials had discriminated

against him on the basis of national origin in violation of Title VII

of the Civil Rights Act of 1964, as amended, 42 U.S.C. �2000 et seq.

The petition for enforcement is accepted by the Commission pursuant to

29 C.F.R. �1614.503.

ISSUE PRESENTED

Whether the agency has complied with certain provisions of the

Commission's Order in EEOC Appeal No. 01943052.

BACKGROUND

In EEOC Appeal No. 01943052 (January 19, 1996), the Commission found that

the agency discriminated against petitioner on the basis of national

origin (Hispanic/Puerto Rican) when it denied him 204-B supervisory

assignments. Among other things, the Commission ordered, inter alia,

that the agency take the following remedial actions:

In the event that appellant prevailed on his MSPB appeal<2> and was

reinstated, the agency was to have provided appellant with 204-B

assignments to remedy the past assignments which he was improperly

denied; and

The agency was directed to award petitioner back pay, less mitigation,

and other benefits which petitioner would have received in the absence

of discrimination. The agency was to have determined the appropriate

amount of back pay and other benefits due petitioner, pursuant to 29

C.F.R. �1614.501, no later than sixty (60) calendar days after the

date the decision became final. If there was a dispute as to the exact

amount of back pay and/or benefits owed petitioner, the agency was to

have issued a check to petitioner for the undisputed amount within sixty

(60) calendar days of the agency's determination of back pay.

In addition, the agency was ordered to take whatever actions it deemed

necessary to ensure that neither appellant nor any other employee was

subject to national origin discrimination in the future, and to provide

EEO training to the responsible officials.

By letter dated November 24, 1998, a copy of which was sent to the agency,

petitioner informed the Commission that the agency failed to comply with

certain matters related to the Order. Specifically, petitioner contends

that the agency failed to comply with (1) and (2) above. In subsequent

letters to the Commission dated February 9, 1999, and February 25, 1999,

petitioner contended that during his MSPB hearing, the agency coerced

him into signing a settlement agreement which allegedly provided for

the withdrawal of his EEO complaints in exchange for his reinstatement.

Appellant further maintains that it is for this reason that the agency

has denied him the back pay it owes him. Appellant also contends that

the agency has not submitted any brief in response to his petition, and

requests $300,000 for the acts of discrimination caused by the agency

which required him to refinance his home and cause his child support

payments to fall into arrearage. In a letter to the Commission dated

June 1, 1996, petitioner continues to contend that he has not been paid

the full amount of back pay owed to him.

ANALYSIS AND FINDINGS

Initially we note that the corrective action ordered in EEOC Appeal

No. 01943052 was designed to make petitioner whole by restoring

him to the position that he would have been in were it not for the

agency's discriminatory action. Franks v. Bowman Transportation Co.,

424 U.S. 747, 764 (1976); see also Abelmarle Paper Co. v. Moody, 422

U.S. 405, 418 (1975). Based on the correspondence before us, we conclude

that the matters identified by petitioner are the only unresolved issues

concerning the agency's compliance with the Order at issue herein.

We further note that the record before us contains only the original

investigative file, the supplementary investigation file as ordered by

our decision in Lebron v. U.S.P.S., EEOC Request No. 05930043 (June 4,

1993), and appellant's submissions as noted above.

As such, we find we are unable to determine from the record before us

whether the agency has complied with our previous Order. Specifically,

the record does not contain any back pay documentation or calculations.

In order for petitioner to fully assess whether he has been made whole,

petitioner is entitled to know of the agency's method and amount of its

financial calculations, including gross wages and amounts of offset.

The agency is reminded that gross back pay includes all forms

of compensation such as wages, bonuses, and all other elements of

reimbursement and fringe benefits such as pension and health insurance.

The Commission construes "benefits" broadly to include inter alia,

annual leave, sick leave, health insurance, overtime, and premium pay,

night differentials and retirement contributions. Padilla v. U.S.P.S.,

EEOC Petition No. 04970010 (October 2, 1997); Finlay v. U.S.P.S., EEOC

Petition No. 01942985 (April 29, 1997).

Furthermore, we are unable to determine from the record whether

the agency has complied with (2) above, namely, that in the event

that petitioner prevailed in his MSPB appeal and was reinstated, the

agency was to have provided him with 204-B supervisory assignments to

remedy past assignments he was denied. The record does not contain any

explanation as to whether petitioner has been reinstated, and if so,

whether he has been provided 204-B assignments.

CONCLUSION

Based upon the limited record before us and the petitioner's petition,

the Commission has determined that additional information is necessary

to determine the agency's compliance with its order in Angel Lebron,

Jr. v. William J. Henderson, EEOC Appeal No. 01943052 (January 19, 1996).

The agency is directed to comply with the ORDER below.

ORDER

The agency is ORDERED to take the following actions:

Within thirty (30) days of receipt of this decision, and to the

extent that it has not already done so, the agency is directed to pay

petitioner's back pay, including all interest, as directed by our previous

Order. The agency is directed to provide the Commission and petitioner

with a full explanation of its back pay calculations, including interest

and benefits owed. Further, the agency is directed to respond promptly

to any reasonable questions from appellant concerning its calculations.

The agency is directed to conduct a supplementary investigation

as described below. The agency shall complete this investigation

within thirty (30) days of receipt of this decision and transmit

it to the Compliance Officer as provided by the statement entitled,

"Implementation of the Commission's Decision." At the same time, the

agency shall transmit a copy of its investigation to the petitioner.

The agency shall determine whether appellant was reinstated into his

position following his MSPB appeal, and if he has been, the agency shall

determine whether he has been afforded 204-B supervisory assignments,

as provided by our previous order. The investigation shall include a

narrative explanation and all documentation showing the actions taken

by the agency to comply with our previous Order.

To the extent that it has not already done so, within (30) thirty days

after this decision becomes final, the agency shall provide petitioner

with 204-B supervisory assignments if he has been reinstated.

IMPLEMENTATION OF THE COMMISSION'S DECISION (K1199)

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 64

Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter

referred to as 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)(Supp. V 1993). If the complainant files a civil action, the

administrative processing of the complaint, including any petition for

enforcement, will be terminated. See 64 Fed. Reg. 37,644, 37,659 (1999)

(to be codified and hereinafter referred to as 29 C.F.R. � 1614.409).

COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (R1199)

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:

March 31, 2000

Date Carlton M. Hadden, Acting Director

Office of Federal Operations

1On 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. Consequently, the Commission will apply the revised regulations

found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the

present appeal. The regulations, as amended, may also be found at the

Commission's website at www.eeoc.gov.

2Our previous decision noted that petitioner had been issued a Notice

of Removal by letter dated April 13, 1994, and that he had appealed his

removal to the MSPB. The removal was not raised in the instant complaint;

rather, its relevance was limited to petitioner's available remedy.