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.