01a44791
02-18-2005
Cheryl Snyder, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Cheryl Snyder v. United States Postal Service
01A44791
02-18-05
.
Cheryl Snyder,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A44791
Agency Nos. 4D-270-0101-01
4C-270-0053-02
Hearing Nos. 140-A2-8103X-AFS
140-A2-8256X-AFS
DECISION
INTRODUCTION
Complainant, pursuant to 29 C.F.R. �� 1614.401(e) and 504(a), filed an
appeal with this Commission concerning the agency's alleged failure to
comply with the terms of its February 17, 2004 final action. Accordingly,
the appeal is accepted in accordance with 29 C.F.R. � 1614.405.
ISSUE PRESENTED
The issue presented is whether the agency has complied with its February
17, 2004 final action.
BACKGROUND
On January 30, 2004, an EEOC Administrative Judge (AJ) found that
the agency discriminated against the complainant on the bases of sex
(female) when, on May 3, 2001, and ongoing, she was sexually harassed
and management failed to take effective action to eliminate the hostile
work environment. Among other relief, the agency was ordered to,
"[p]ay complainant backpay less workers' compensation received from
June 6, 2001, through April 1, 2004. The agency issued a final action
agreeing to implement the AJ's decision. On July 7, 2004, the Commission
received a letter from complainant's attorney indicating that the agency
was not in compliance with its final action. Subsequently, on August
4, 2004, complainant's attorney explained that the bases of the appeal
was that the agency had still not provided complainant with back pay.
According to documentation submitted by complainant, the agency, at
that time, was still in the process of working on its calculations.
The attorney also requested that complainant be provided additional
attorney fees and costs incurred in seeking compliance.
In September 2004, the agency notified the Commission that, on or
about August 26, 2004, it issued a back pay check to complainant and
was processing the interest calculation. The amount of the back pay
check was for $25,164.69. The check for interest was in the amount of
$5025.61, and was issued on September 8, 2004. The record contains
copies of both checks. According to the agency, the processing of
complainant's back pay "has taken longer than usual." The delay, the
agency maintained, was due to corrections and adjustments required by
complainant's retroactive elections regarding the Thrift Savings Plan
(TSP) and health care. The agency stated that it:
[e]ngaged in timely and good faith communications with complainant
explaining procedures and certain difficulties in processing the back
pay relative to alterations in TSP. TSP information calculations have
a direct effect on the final calculation of back pay based on employee
contributions.
Furthermore, the agency stated that "normally" the back pay calculations
should have been completed by May 1, 2004. This period would include
30 days to complete all paperwork after the issuance of the February
17, 2004 final action<1>, and 4 -6 weeks to process the back pay award.
The agency also maintained that any attorney's fees should be disallowed
for any time prior to May 1, 2004.
Finally, on September 10, 2004, complainant's attorney wrote the
Commission stating that:
while the agency's statements are essentially correct, the agency's
final action in this case was issued on February 17, 2004. As of
today, almost seven (7) months later, the agency has still not fully
complied and my client is still waiting on the interest check. Clearly,
attorney fees are warranted for the complainant being required to file
the compliance action.
ANALYSIS AND FINDINGS
The agency provided a copy of a June 10, 2004 letter to complainant's
attorney that stated, in pertinent part, that "since [complainant]
was never terminated from the rolls of USPS, the TSP in force at the
beginning of the LWOP period . . . will be reinstated automatically.
[Complainant] can change the amounts to TSP by submitting FORM TSP-1s
for each 'Open Season' to document the deductions she wants withheld
from the back pay award."
A July 8, 2004 letter from the agency to complainant's attorney stated:
as stated in our June 10 letter, Payroll Processing will provide the
actual monetary computation and deductions once the back pay settlement
claim is submitted and processed. Payroll Processing normally takes 4
to 6 weeks to process a back pay claim after receipt; [complainant's]
claim was received by Payroll Processing on July 1. A check will be
initiated for the amount of the back pay claim. Interest payment will
be made by separate check once the initial payment is made.
A July 12, 2004 letter to complainant's attorney indicated that although
complainant's back pay claim had been received, there were �[i]ssues
that need to be addressed before completion.� According to the letter,
�payroll is requiring a separate [TSP-1] form for each open season
election change. They will not accept all changes listed on one TSP[-1]
form as previously submitted.�
Finally, we note a July 30, 2004 agency e-mail that indicates
that there were also concerns with the separate TSP-1 forms that
complainant submitted. According to an agency official, �some of the
dates indicated on the TSP-1 [forms] are multiple submissions for the
same open seasons.� The agency official indicated that she was �going
to contact [complainant's] attorney for clarification.�
Based on a careful review of the facts and circumstances of this
case, we find that the agency acted in a reasonable amount of time
to issue complainant's back pay award. The agency was required to
perform complicated back pay, interest, and benefit calculations.
These calculations required coordination between the agency's Labor
Relations and Accounting offices and the Federal Retirement Thrift
Investment Board. In the present case, there were a number of problems
that arose in processing complainant's back pay claim; consequently,
the Commission finds that the agency's delay was reasonable.
CONCLUSION
Based upon a review of the record and the submissions of the parties,
and for the foregoing reasons, the Commission finds that the agency has
complied with its February 17, 2004 final order.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
The Commission may, in its discretion, reconsider the decision in this
case if the complainant or the agency submits a written request containing
arguments or evidence which tend to establish 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.
Requests to reconsider, with supporting statement or brief, must be filed
with the Office of Federal Operations (OFO) within thirty (30) calendar
days of receipt of this decision or within twenty (20) calendar days of
receipt of another party's timely request for reconsideration. See 29
C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for
29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999). All requests
and arguments must be submitted to the Director, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. In the absence of a legible postmark, the
request to reconsider shall be deemed timely filed if it is received by
mail within five days of the expiration of the applicable filing period.
See 29 C.F.R. � 1614.604. The request or opposition must also include
proof of service on the other party.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely, unless extenuating circumstances
prevented the timely filing of the request. Any supporting documentation
must be submitted with your request for reconsideration. The Commission
will consider requests for reconsideration filed after the deadline only
in very limited circumstances. See 29 C.F.R. � 1614.604(c).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S0900)
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. If you
file a request to reconsider and also file a civil action, 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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
__02-18-05________________
Date
1In addition to the back pay award, the agency was ordered to pay
complainant $3,495.00 in past pecuniary damages for medical expenses,
$3,275.00 in future pecuniary damages for medical expenses, $3,212.50
for costs associated with litigating the complaint, $150,000.00 for
non-pecuniary damages, reasonable attorney's fees and costs, restoration
of annual and sick leave, sexual harassment training for the employees of
Ahoskie, North Carolina Post Office as well as the Labor Relations Office
of the Greensboro District, and the posting of a notice indicating that
an employee of the Ahoskie Post Office had been discriminated against.