05980501
02-11-1999
Craig S. Ritchie, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Craig S. Ritchie v. United States Postal Service
05980501
February 11, 1999
Craig S. Ritchie, )
Appellant, )
)
v. ) Request No. 05980501
) Appeal No. 01952558
William J. Henderson, ) Agency Nos. 4-C-175-2569-93,
Postmaster General, ) 1007-94, 1019-94
United States Postal Service, ) Hearing Nos. 170-94-8480X,
Agency. ) 8481X, 8482X
)
GRANTING REQUEST FOR RECONSIDERATION
On March 18, 1998, the United States Postal Service (agency) initiated
a request to the Equal Employment Opportunity Commission (EEOC) to
reconsider the decision in Craig S. Ritchie v. Marvin T. Runyon, Jr.,
Postmaster General, United States Postal Service, EEOC Appeal No. 01952558
(February 10, 1998). EEOC Regulations provide that the Commissioners
may, in their discretion, reconsider any previous Commission decision.
29 C.F.R. �1614.407(a). The party requesting reconsideration must
submit written argument or evidence which tends to establish one or
more of the following three criteria: new and material evidence is
available that was not readily available when the previous decision
was issued, 29 C.F.R. �1614.407(c)(1); the previous decision involved
an erroneous interpretation of law, regulation or material fact, or
misapplication of established policy, 29 C.F.R. �1614.407(c)(2); and the
previous decision is of such exceptional nature as to have substantial
precedential implications, 29 C.F.R. �1614.407(c)(3). For the reasons
set forth herein, the agency's request is granted.
ISSUE PRESENTED
The issue presented is whether the remedy provided by the previous
decision goes beyond what constitutes "make whole" relief.
BACKGROUND
During the period in question, appellant was employed as a transitional
(TE) letter carrier at the Plymouth Meeting, Pennsylvania Post Office
(the Facility). Appellant filed three formal complaints between September
1993 and February 1994 in which he alleged discrimination based on mental
disability (organic mental disorder resulting from Lyme disease) and
reprisal (prior EEO activity) when: (1) in June 1993, the Facility's
Postmaster (the Responsible Official, RO) allegedly told him that she
would not hire him for one of three part-time flexible (PTF) Carrier
positions she was authorized to fill; (2) he was informed in July 1993
that he was working too slowly; (3) he was issued a letter of warning
on August 9, 1993; (4) he was issued a notice of removal on October 6,
1993; (5) in November 1993, he was denied employment as a PTF Carrier
at the Blue Bell, Pennsylvania Post Office; and (6) on December 9, 1993,
a new hiring register was established at the Conshohocken, Pennsylvania
Post Office which adversely affected his position on the register.
Following an investigation, appellant requested an administrative hearing,
which was held before an administrative judge (AJ) in October 1994.
The AJ subsequently issued a recommended decision (RD) finding no
discrimination with regard to all six issues. The RD was thereafter
adopted by the agency as its final decision. Appellant appealed and the
prior decision found that appellant had been discriminated against based
on disability with regard to Issues 1 through 4. The decision also found
no discrimination with regard to Issues 5 and 6. As relief, the decision
ordered the agency to offer appellant placement into the position of PTF
Carrier, or a substantially similar position, retroactive to early 1994
with back pay and other benefits; conduct a supplemental investigation
to determine whether appellant was entitled to compensatory damages;
and pay reasonable attorney's fees.
In its request for reconsideration, the agency does not challenge the
substantive findings of the prior decision. Rather, it argues that
offering appellant placement into a PTF Carrier position goes beyond what
constitutes "make whole" relief. A review of the record reveals that,
although the RO told appellant in June 1993 that he would not be selected
for one of three PTF Carrier positions which had become available,
these positions were not actually filled until 1994. By that time,
appellant had been removed from the agency. In ordering the agency
to offer appellant retroactive placement into one of these positions,
the prior decision found that, had appellant not been discriminatorily
removed, he would have requested to be considered for them. It found
further that, absent further discrimination on the part of the RO,<0>
it was likely that appellant would have been selected insofar as the
Facility's other TE had been selected for one of them.
The agency argues that the aforementioned assumption is erroneous,
pointing out that, although the RO had the authority to have the three
positions filled, the individuals who actually filled them were determined
by a hiring register. In support of its position,
the agency has attached a signed statement from the Human Resources
Specialist (HRS) in charge of hiring and testing at the Facility.
The HRS states that appellant was never considered for a career position
at the Facility because the test score he received did not place him
high enough on the register. In this regard, the record reveals that,
as of July 13, 1993, appellant was ranked twelfth on the register for
PTF Carrier positions at the Facility.
ANALYSIS AND FINDINGS
After a careful review of the record, the Commission finds that
the agency's request for reconsideration meets the criteria of 29
C.F.R. �1614.407(c)(2). It is therefore the decision of the Commission
to grant the request.
Appellant, insofar as he has established discrimination, is entitled
to "make whole" relief. "Make whole" relief has been defined as the
placement of an individual, as near as may be, in the situation he
would have been in absent the discrimination. See Albemarle Paper
Co. v. Moody, 422 U.S. 405, 418-419 (1975). The prior decision's
order to offer appellant placement into a PTF Carrier position relates,
ostensibly, to the RO's comment in June 1993 that appellant would not be
hired for any of the three PTF Carrier positions that were available.
The Commission notes that this comment was unaccompanied by a concrete
action, and, as discussed, it was not until the following year that the
three positions were actually filled. Moreover, as the prior decision
found, the RO articulated legitimate, nondiscriminatory reasons for her
decision not to fill the positions until 1994 which appellant did not
demonstrate were pretextual. For these reasons, the Commission finds
that the RO's comment, by itself, does not entitle appellant to placement
into a PTF Carrier position.
As noted, the prior decision assumed that, had appellant not been
discriminatorily removed (and barring further discrimination on the
part of the RO), he would have been selected for a PTF Carrier position
in 1994. We find that this is clearly speculative, and the Commission
has been reluctant to assume that an individual, absent a discriminatory
act, would have subsequently received a competitive promotion. See
Ramirez v. U.S. Postal Service, EEOC Petition No. 04950024 (February
8, 1996). Not only were the selections in this case competitive,
but at the time appellant was removed there were 11 individuals who
ranked higher than him on the register for PTF Carrier positions.
To the extent the selections for the three PTF Carrier positions were
dictated by that register, we find it improbable that appellant would
have been one of the individuals selected. Based on the foregoing,
the Commission concludes that offering appellant placement into a PTF
Carrier position goes beyond what constitutes "make whole" relief.
Although appellant is not entitled to a PTF Carrier position, he is
entitled to be reinstated into his TE position for the duration of
his one-year appointment. Moreover, there is evidence in the record
indicating that TEs at the Facility generally receive a second one-year
appointment.<0> Therefore, the Commission shall order the agency
to offer appellant the option of either being reinstated into his TE
position to serve both the balance of his first appointment and a second
one-year appointment, or of having his records credited to reflect that he
served the balance of his first appointment as well as a second one-year
appointment. If appellant elects the latter option, the agency shall
provide him with back pay and other benefits for the periods in question.
Finally, although the body of the prior decision states that the
discipline appellant received (the letter of warning and notice of
removal) was to be expunged from his personnel file, the decision's order
does not include a provision to that effect. Therefore, the Commission
shall include in its Order a provision ordering the agency to expunge
the discipline in question.
CONCLUSION
After a review of the agency's request for reconsideration, the previous
decision, and the entire record, the Commission finds that the request
meets the criteria of 29 C.F.R. �1614.407(c)(2), and it is the decision
of the Commission to GRANT the agency's request. The decision of the
Commission in Appeal No. 01952558 (February 10, 1998) is MODIFIED.
The agency is ordered to comply with the order set forth in the prior
decision, as modified below.
ORDER
The agency is ORDERED to take the following remedial action:
(A) Within thirty (30) calendar days of the date this decision becomes
final, the agency is directed to offer appellant the option of either
reinstatement into his transitional letter carrier position for the
duration of his one-year appointment and a second one-year appointment,
or of having his records credited to reflect that he served both the
balance of his first appointment and a second one-year appointment.
If appellant opts for reinstatement, the agency shall determine, with
appellant's input, what reasonable accommodation(s), if any, is necessary
to allow him to perform the essential functions of the position.
(B) If appellant opts to have his records credited in lieu of
reinstatement, the agency shall determine the appropriate amount of
back pay, 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 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 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 must be filed with the Compliance Officer, at the address
referenced in the statement entitled "Implementation of the Commission's
Decision."
(C) The agency shall expunge from appellant's personnel file the letter
of warning issued in August 1993 and the notice of removal issued in
October 1993, as well as any references to either of these documents.
(D) The agency shall conduct a supplemental investigation to
determine whether appellant is entitled to compensatory damages for the
discriminatory acts encompassed in Issues 1 through 4. The agency shall
allow appellant to present evidence in support of his compensatory damages
claim.<0> Appellant shall cooperate with the agency in this regard.
Thereafter, the agency shall issue a final decision. 29 C.F.R. �1614.110.
The supplemental investigation and issuance of the final decision must
be completed within sixty (60) calendar days of the date this decision
becomes final. A copy of the final decision must be submitted to the
Compliance Officer, as referenced below.
(E) The agency shall post at the Plymouth Meeting, Pennsylvania Post
Office 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.
(F) The agency is encouraged to provide training to the RO in the
obligations and duties imposed by the Rehabilitation Act.
(G) 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 that the
corrective action has been implemented.
ATTORNEY'S FEES (H1092)
If appellant has been represented by an attorney (as defined by
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 (K0595)
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 appellant. If the agency does not comply with the Commission's
order, the appellant may petition the Commission for enforcement of
the order. 29 C.F.R. �1614.503(a). The appellant 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
29 C.F.R. ��1614.408, 1614.409, and 1614.503(g). Alternatively,
the appellant 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. ��1614.408 and 1614.409. 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
appellant files a civil action, the administrative processing of the
complaint, including any petition for enforcement, will be terminated. See
29 C.F.R. �1614.410.
RIGHT TO FILE A CIVIL ACTION (Q0993)
This decision affirms the agency's final decision in part, but it also
requires the agency to continue its administrative processing of a
portion of your complaint. You have the right to file a civil action
in an appropriate United States District Court on both that portion
of your complaint which the Commission has affirmed AND that portion
of the complaint which has been remanded for continued administrative
processing. It is the position of the Commission that you have the
right to file a civil action in an appropriate United States District
Court WITHIN NINETY (90) CALENDAR DAYS from the date you receive this
decision. You should be aware, however, that courts in some jurisdictions
have interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive this decision. To ensure that your civil action
is considered timely, you are advised to file it WITHIN THIRTY (30)
CALENDAR DAYS from the date that you receive this decision or to consult
an attorney concerning the applicable time period in the jurisdiction
in which your action would be filed. 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 (Z1092)
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
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:
February 11, 1999
Date Frances M. Hart
Executive Officer
Executive Secretariat
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 Rehabilitation Act of 1973, as amended, 29 U.S.C. Section
791 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 United States Postal Service, Plymouth Meeting, Pennsylvania Post
Office, supports and will comply with such Federal law and will not
take action against individuals because they have exercised their rights
under law.
The United States Postal Service, Plymouth Meeting, Pennsylvania Post
Office, has been found to have discriminated against an employee by
not reasonably accommodating his disability, thereby resulting in his
receipt of a letter of warning and a notice of removal. The agency
has been ordered to reinstate the employee, expunge the discipline
from his personnel file, pay reasonable attorney's fees, and determine
whether the employee is entitled to an award of compensatory damages.
The United States Postal Service, Plymouth Meeting, Pennsylvania Post
Office, 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 United States Postal Service, Plymouth Meeting, Pennsylvania Post
Office, 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: __________________
29 C.F.R. Part 1614
01 The decision assumed that, in light of the RO's prior discrimination
against appellant, she would have discriminated against him when filling
the three positions.
02 Appellant stated in his affidavit that, at the time he was hired
as a TE, he was told by the individual who hired him that he would be
hired for two appointments.
03 In order to assess the claim, the agency shall request from
appellant evidence of and testimony establishing any pecuniary and
non-pecuniary injury suffered and its link to the agency's discriminatory
actions. See Feris v. Environmental Protection Agency, EEOC Appeal
No. 01934828 (August 10, 1995), request to reopen denied, EEOC Request
No. 05950936 (July 19, 1996); Carle v. Department of the Navy, EEOC
Appeal No. 01922369 (January 5, 1993); Rivera v. Department of the Navy,
EEOC Appeal No. 01934157 (July 22, 1994).