05a00095
07-17-2000
Brenda L. Baxter, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, (S.E./S.W. Areas), Agency.
Brenda L. Baxter v. United States Postal Service
05A00095
July 17, 2000
Brenda L. Baxter, )
Complainant, )
) Request No. 05A00095
v. ) Appeal No. 01983981
) Agency No. 4H-300-1035-95
William J. Henderson, ) Hearing No. 110-97-8093X
Postmaster General, )
United States Postal Service, )
(S.E./S.W. Areas), )
Agency. )
____________________________________)
DENIAL OF REQUEST FOR RECONSIDERATION
On 10/22/99, Brenda L. Baxter (complainant) timely<1> initiated a
request to the Equal Employment Opportunity Commission (Commission)
to reconsider the decision in Brenda L. Baxter v. United States Postal
Service, EEOC Appeal No. 01983981 (5/3/99).<2> EEOC Regulations provide
that the Commissioners may, in their discretion, reconsider any previous
Commission decision where the requesting party demonstrates 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. See 64 Fed. Reg. 37,644, 37,654 (1999) (to be codified and
hereinafter referred to as 29 C.F.R. � 1614.405(b)).
Complainant filed a formal EEO complaint alleging she was subjected to
discrimination on the bases of disability (buldging disk, bone spurring,
inability to fully raise her arm, and shoulder problems), and reprisal
(prior EEO activity), when, on October 7, 1994, the agency terminated
her employment by failing to offer her a third appointment as a TE.
Following the investigation, complainant requested a hearing before
an EEOC Administrative Judge (AJ). After a hearing, the AJ issued a
Recommended Decision finding that complainant was discriminated against
on the basis of disability. However, in light of complainant's testimony
that her neurologist deemed her impairments precluded her from performing
any position with the agency, the AJ recommended as relief that the agency
grant complainant back pay from the time of her termination until such
time that she was not able to perform, with or without accommodation,
or that the agency reinstate her employment, �for at least [one] 359-day
term.� The AJ denied complainant's request for compensatory damages,
finding that complainant failed to present sufficient evidence to warrant
such an award.
On March 30, 1998, the agency issued a final decision that rejected the
AJ's RD. Complainant appealed. In our prior decision, we found that at
the time the agency determined not to renew complainant's TE appointment,
agency officials regarded complainant as an individual with a record
of an impairment that substantially limited a major life activity.
The prior decision also found no reason to disturb the AJ's findings that
the agency's reasons for its actions were a pretext for discrimination.
The prior decision then examined complainant's request for relief.
On appeal, complainant requested that the agency place her, not into a TE
position, but into a full time permanent limited duty position. However,
the prior decision found complainant's requests were not persuasive
given that her complaint challenged the agency's refusal to appoint her
to a third TE position, as well as in light of the testimony that she was
incapable of performing any position with the agency. The prior decision
awarded complainant back pay through either the date she became unable
to perform any position, with or without accommodation, or through the
scheduled date of expiration of her third causal appointment.
In her request for reconsideration, complainant argues that the prior
decision erred when it failed to award reinstatement, front pay,
or compensatory damages. She asks that she be afforded an additional
opportunity to submit evidence in support of her request for compensatory
damages, and that we order a supplemental investigation into whether
complainant should be reinstated into a full time career position,
TE position, or be awarded front pay.
We find that the prior decision correctly found that complainant failed
to present argument or evidence in support of her position that �make
whole relief� includes a full time permanent limited duty position,
since her complaint challenged the termination of her TE appointment.
To that end, we do not agree with complainant's position that the prior
decision erred when it did not order a supplemental investigation into
whether complainant should be entitled to a full time position. With
respect to her claim that the case should be remanded for a supplemental
investigation into compensatory damages, we find complainant already
had sufficient opportunity to present such evidence before the AJ.
Regarding her claim of front pay, the Commission has stated that front
pay may be awarded in lieu of reinstatement when: (1) no position is
available; (2) a subsequent working relationship between the parties
would be antagonistic; or (3) the employer has a record of long-term
resistance to anti-discrimination efforts. See Cook v. United States
Postal Service, EEOC Appeal No. 01950027 (July 17, 1998). The fact that
front pay is awarded in lieu of reinstatement implies that the complainant
is able to work but cannot do so because of circumstances external to the
complainant. Id. The prior decision noted complainant's testimony wherein
she referred to her physician's determination that she was incapable of
performing any position with the agency. Because complainant is unable
to work for the agency, we conclude that she is not entitled to an award
of front pay.
After a review of complainant's request for reconsideration, the previous
decision, and the entire record, the Commission finds complainant's
request does not meet the criteria of 29 C.F.R. � 1614.405(b), and
it is the decision of the Commission to deny complainant's request.
The decision of the Commission in EEOC Appeal No. 01983981 remains
the Commission's final decision. There is no further right of
administrative appeal from a decision of the Commission on a request
for reconsideration.
ORDER (D1199)
The agency is ORDERED to take the following remedial action:
The agency shall determine the appropriate amount of back pay (with
interest, if applicable) and other benefits due complainant, pursuant
to 29 C.F.R. � 1614.501, no later than sixty (60) calendar days after
the date this decision becomes final. Complainant shall receive back pay
through either the date she became unable to perform any position with the
agency, with or without reasonable accommodation, or through the scheduled
date of expiration of a third casual appointment. 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 issue of attorney's fees and costs is REMANDED to the Hearings Unit of
the Atlanta District office. Thereafter, the Administrative Judge shall
issue a decision on this issue in accordance with 64 Fed. Reg. 37,644,
37,657 (1999) (to be codified at 29 C.F.R. � 1614.109), and the agency
shall issue a final action in accordance with 64 Fed. Reg. 37,644,
37,657-58 (1999) (to be codified at 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 Administrative Judge's decision and the final
agency action to the Compliance Officer at the address set forth below.
The agency shall remove from complainant's personnel file the evaluation
issued on October 7, 1994, and substitute therefore an evaluation which
reflects that complainant performed all factors in a satisfactory manner.
The agency shall conduct training for its supervisory personnel at
the Sprayberry, Georgia, Post Office, regarding their obligations under
Section 501 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. �791
et seq.
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 foregoing corrective actions have been implemented.
POSTING ORDER (G1092)
The agency is ORDERED to post at its Sprayberry, Georgia Post Office
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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (P0400)
This decision of the Commission is final, and there is no further right
of administrative appeal from the Commission's decision. 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.
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:
July 17, 2000
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
1Although complainant's request was not timely filed, we find she submitted
sufficient documentation that would support us extending the time limits in
this case. See 29 C.F.R. � 1614.604(c). Here, complainant provided
argument and affidavits in support of her position that her attorney's mail
was delayed. Specifically, complainant's paralegal submitted an affidavit,
wherein she avers that she received notification from the U.S. Postal Service
that mail sent from the attorney's office was abandoned and found in empty
equipment. Complainant averred in her affidavit that had she timely received
the prior decision, she would have filed a civil action. For these reasons,
we find it appropriate to extend the time limits in this case.
2On 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.