Anthony W. Kaiser Complainant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency,

Equal Employment Opportunity CommissionNov 17, 2000
05990295 (E.E.O.C. Nov. 17, 2000)

05990295

11-17-2000

Anthony W. Kaiser Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency,


Anthony W. Kaiser )

Complainant, )

)

v. ) Request No. 05990295

) Appeal No. 01974398

William J. Henderson, ) Agency No. 1C-451-1097-96

Postmaster General, ) Hearing No. 220-96-5333X

United States Postal Service, )

Agency, )

)

DECISION ON REQUEST FOR RECONSIDERATION

The agency timely initiated a request to the Equal Employment Opportunity

Commission to reconsider the decision in Anthony W. Kaiser v. William

J. Henderson, Postmaster General, United States Postal Service, EEOC

Appeal No. 01974398 (December 4, 1998).<1> EEOC Regulations provide

that appellate decisions on agency final actions and decisions are final,

unless the Commission reconsiders the case. 29 C.F.R. � 1614.405(b). The

Commission, in its discretion, may grant reconsideration if the party

requesting reconsideration demonstrates that: (1) the appellate decision

involved a clearly erroneous interpretation of material fact or law,

29 C.F.R. � 1614.405(b)(1); or (2) the decision will have a substantial

impact on the policies, practices, or operations of the agency, 29

C.F.R. � 1614.405(b)(2).

After a review of the agency's request to reconsider, the

previous decision, and the entire record, the Commission denies

finds that the request fails to meet the criteria in 29 C.F.R. �

1614.405(b). Accordingly, it is the decision of the Commission to deny the

request. The Commission's decision in EEOC Appeal No. 01974398 remains

the Commission's final decision in this matter. To the extent that it

has not already done so, the agency is directed to carry out the order

for relief set forth in EEOC Appeal No. 01974398, as modified below.

There is no further right of administrative appeal from a decision of

the Commission on request for reconsideration.

ORDER (D1199)

Unless it has already done so, the agency is ORDERED to take the following

remedial action:

Within thirty (30) calendar days of the date that the agency receives this

decision, the agency shall place complainant in his former position, or a

substantially equivalent position, retroactive to the date of his removal.

Complainant shall be provided with appropriate back pay and benefits,

including seniority, as indicated in Paragraph (B), below.

The agency shall determine the appropriate amount of back pay, interest,

and other benefits due complainant, pursuant to 29 C.F.R. � 1614.501,

no later than sixty (60) calendar days after the date that it receives

this decision. 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."

The agency shall provide eight (8) hours of training in the obligations

and duties imposed by Title VII to the management officials responsible

for the actions at issue, unless those officials are no longer employed by

the agency. If this is the case, the agency shall provide documentation

in its report of compliance establishing that the officials in question

have left the agency's employ.

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 (G1092)

The agency is ORDERED to post at its Bulk Mail facility in Cincinnati,

Ohio, 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 (H1199)

If complainant has been represented by an attorney (as defined by 64

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

referred to as 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 (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).

COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (R0400)

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:

11-17-00

Date Carlton M. Hadden, Director

Office of Federal Operations

CERTIFICATE OF MAILING

For timeliness purposes, the Commission will presume that this decision

was received within five (5) calendar days of mailing. I certify that

the decision was mailed to complainant, complainant's representative

(if applicable), and the agency on:

__________________ __________________________

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 29 C.F.R. Part 1614 in deciding the

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

Commission's website at www.eeoc.gov.