Bobby M. Brawley, Appellant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionFeb 15, 2000
05990263 (E.E.O.C. Feb. 15, 2000)

05990263

02-15-2000

Bobby M. Brawley, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.


Bobby M. Brawley v. United States Postal Service

05990263

February 15, 2000

Bobby M. Brawley, )

Appellant, )

)

v. ) Request No. 05990263

) Appeal No. 01972255

) Agency No. 4D-280-1092-95

William J. Henderson, ) Hearing No. 140-95-8161X

Postmaster General, )

United States Postal Service, )

Agency. )

______________________________)

DENIAL OF REQUEST FOR RECONSIDERATION

On December 29, 1998, the United States Postal Service (hereinafter

referred to as the agency) initiated a request to the Equal Employment

Opportunity Commission (EEOC) to reconsider the decision in Brawley

v. United States Postal Service, EEOC Appeal No. 01972255 (November

25, 1998).<1> EEOC regulations provide that the Commissioners may,

in their discretion, reconsider any previous decision where the party

demonstrates that: (1) the previous decision involved clearly erroneous

interpretation of material fact or law; or (2) the decision will have a

substantial impact on the policies, practices or operation of the agency.

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

referred to as 29 C.F.R. �1614.405(b)). The agency's request is denied.

The Commission notes that the previous decision remanded the issues of

compensatory damages and attorney's fees to the agency. The Commission

finds it is more appropriate that such matters be remanded to the

Administrative Judge.

After a review of the agency's request for reconsideration, the previous

decision and the entire record, the Commission finds that the agency's

request does not meet the criteria of 29 C.F.R. � 1614.407(b), and it is

the decision of the Commission to deny the agency's request. The decision

of the Commission in Appeal No. 01972255 remains the Commission's final

decision. There is no further right of administrative appeal from the

decision of the Commission on this request for reconsideration.

ORDER

The agency is ORDERED to take the following remedial actions:

1. The agency shall, within thirty (30) calendar days of the date

this decision becomes final, reinstate appellant to the position

of Part-time Flexible City Carrier, PS-5, or a comparable position

effective January 6, 1995.

2. The agency shall determine the appropriate amount of backpay,

with interest, and other benefits due appellant pursuant to 29

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

date this decision becomes final. The appellant shall cooperate

in the agency's efforts to compute the amount of backpay 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, this agency shall issue a check to the

appellant for the undisputed amount within sixty (60) calendar days

of the date the agency determines the amount it believes to be due.

The appellant may petition for enforcement or clarification of the

amount in dispute. The petition for clarification or enforcement

referenced in the statement entitled "Implementation of the

Commission's Decision."

3. The issues of compensatory damages and attorney's fees and

costs are REMANDED to the Hearings Unit of the appropriate EEOC

field office. Thereafter, the administrative judge shall issue a

decision on these issues in accordance with 29 C.F.R. � 1614.109,

and the agency shall issue a final action in accordance with

29 C.F.R. �1614.110 within forty (40) days of receipt of the

administrative judge's decision.. The agency shall submit copies

of the decision of the Administrative Judge and the final agency

action to the Compliance Officer at the address set forth below.

POSTING ORDER (G1092)

The agency is ORDERED to post at its General Mail Facility, Concord, North

Carolina 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.

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:

Feb. 15, 2000

______________ ______________________

DATE Frances M. Hart

Executive Officer

Executive Secretariat

CERTIFICATE OF MAILING

For timeliness purposes, the Commission will presume that this decision

was received within five (5) calendar days after it was mailed. I certify

that this decision was mailed to complainant, complainant's representative

(if applicable), and the agency on:

Date

NOTICE TO EMPLOYEES

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 the Title VII of the Civil Rights Act of 1964,

as amended, 42 U.S.C. � 2000e 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 PHYSICAL or MENTAL DISABILITY

with respect to hiring, firing, promotion, compensation, or other terms,

conditions or privileges of employment. The General Mail Facility,

Concord, North Carolina, reaffirms its commitment to comply with these

statutory provisions.

The General Mail Facility, Concord, North Carolina, supports and will

comply with such Federal law and will not take action against individuals

because they have exercised their rights under law.

The General Mail Facility, Concord, North Carolina, was found to have

discriminated on the basis of race when it terminated an employee

during his probationary year. The General Mail Facility, Concord,

North Carolina, was ordered to take corrective action in the form of

(1) reinstating the aggrieved individual; and (2) awarding back pay,

interest and other benefits. The General Mail Facility, Concord, North

Carolina, 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 and will not retaliate

against employees who file EEO complaints.

The General Mail Facility, Concord, North Carolina, 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: ________________

1 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. 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.