04a20002
03-19-2003
Cynthia L. Clark, Petitioner, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Cynthia L. Clark v. United States Postal Service
04A20002
03-19-03
.
Cynthia L. Clark,
Petitioner,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Petition No. 04A20002
Appeal No. 01956684
Hearing No. 150-94-8039X
DECISION ON PETITION FOR ENFORCEMENT
Cynthia L. Clark (hereinafter referred to as petitioner) filed a petition
with the Equal Employment Opportunity Commission for enforcement of the
Order set forth in Cynthia L. Clark v. United States Postal Service, EEOC
Appeal No. 01956684 (September 18, 1998). In that Order, the Commission
directed the United States Postal Service (hereinafter referred to
as the agency) to redress petitioner following a finding that agency
officials discriminated against petitioner on the bases of sex and age
in violation of Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. �2000e et seq., and the Age Discrimination in Employment Act of
1967, as amended, 29 U.S.C. �621 et seq. This petition for enforcement is
accepted pursuant to the Commission's regulations. 29 C.F.R. � 1614.503.
The issue presented by this petition is whether the agency has complied
with the Commission's Order in EEOC Appeal No. 01956684. In that
decision, the Commission found that the agency discriminated against
petitioner on the bases of sex and age when she was subjected to a hostile
work environment in 1992. To remedy the discrimination, the Commission
directed the agency to take certain actions. In her most recent filings,
petitioner identified several issues that remain unresolved. The agency
has submitted documents in support of its assertion that it has fully
complied with the Commission's Order. The Commission has reviewed
the full record of this matter and, as discussed herein, finds that
the agency has complied with the Order, in part, and failed to comply,
in part. Also, it must clarify one matter for petitioner.<1>
At the time of the events in this matter, petitioner worked as a
letter carrier in Lake Worth, Florida. In the underlying decision,
the Commission found that the agency, through her immediate supervisor
(S1), harassed her from approximately February 1992 through May 10, 1992,
when she ceased coming to work. Petitioner received workers' compensation
benefits and eventually retired on disability. In our Order, we directed
the agency to: (A) reinstate petitioner; (B) pay back pay, interest, and
other benefits; (C) consider petitioner's claim for award of front pay;
(D) consider petitioner's claim for compensatory damages; (E) provide
training on EEO matters to managers and S1; (F) post a notice; and, (G)
pay reasonable attorney's fees. We now review the agency's compliance
and address petitioner's specific concerns.
A. Reinstatement
By letter dated October 28, 1998, the agency offered petitioner
reinstatement to the position of letter carrier at Lake Worth or any
facility of her choice. It informed her that her former supervisor had
been removed from the Lake Worth station. Petitioner, through counsel,
responded that she was �unable to return to such a position at this
time.� Letter, November 27, 1998. Thus, pursuant to the terms of the
Order, her entitlement to back pay and benefits ceased as of that date.
We find that the agency has complied with this provision of the Order.
B. Back Pay.
Documents submitted by the agency show that petitioner was paid the
following: (a) back pay for the period from May 11, 1992, through
November 28, 1998, by check dated May 14, 1999, for $87,282.26;<2> (b) a
one-time $400 lump-sum bonus in the amount of $237.95, after deductions;
and (c) interest of $67,469.57 by check dated June 22, 1999, and cashed
by petitioner in August 1999. In addition, the agency contributed its 1%
payment of $1,674.92 to petitioner's retirement account.<3>
In her letter of January 9, 2002, petitioner stated that her unresolved
issues included a payment for interest, the craft lump sum bonus,
and retirement amount contributions. As stated, above, the agency has
provided documentation that these obligations were paid, and petitioner
has not contested the agency's assertion. Petitioner's claims for
entitlements after November 28, 1998, are considered in her appeals to the
agency's decision on her claims for front pay and compensatory damages.
Petitioner also claimed that she was not paid for annual and sick leave
from 1992, including 1,076 hours of annual leave and 550 hours of sick
leave accumulated as of May 1992. In a statement of disability dated
August 11, 1999, petitioner stated that after her last day of work on May
11, 1992, she �was unable to return to work and was forced to use up my
annual leave and also all the sick leave that I had accumulated.� While
it appears that petitioner is aware that she used her accumulated leave
after she left work in May 1992, the agency's documentation is not clear
about leave earned after that date. We will ask the agency to review this
matter and provide petitioner an explanation. Except for clarification
to petitioner on any entitlement to reimbursement for leave, we find
that the agency has complied with the provisions of this paragraph.
C. Claim for Front Pay.
In its letter of October 28, 1998, the agency requested that petitioner
submit argument and evidence on her claim for front pay. After receipt of
petitioner's request for front pay, the agency issued a final decision on
December 10, 2001. Petitioner has filed an appeal from that decision,
and it is pending before the Commission as EEOC Appeal No. 01A21595.
We find that the agency has complied with this paragraph.
D. Claim for Compensatory Damages.
In its letters of October 28, 1998, and November 25, 1998, the agency
requested that petitioner submit evidence in support of her claim
for compensatory damages and provided a detailed questionnaire for
her response.. The agency informed petitioner of the types of damages
available and cited to the Commission's case in Carle v. Department of
the Navy, EEOC Appeal No. 01922369 (January 5, 1993). After receipt
of petitioner's response, the agency issued a final decision on January
10, 2002. Petitioner has filed an appeal from that decision, and it is
pending before the Commission as EEOC Appeal No. 01A21594. We find that
the agency has complied with this paragraph.
E. Training
The agency submitted attendance sheets for training sessions and its
current training booklet on sexual harassment. Although the courses are
not clearly defined, we find that it provided EEO training to employees
and managers within the Central Florida District as directed. However,
our review of these records indicates that the supervisor involved in
this matter (S1) did not receive any training after February 25, 1992,
and that training did not concern EEO-related matters. Therefore, unless
the agency can show that S1 received such training since February 1992,
we will direct the agency to provide training to S1 on EEO matters,
with special emphasis on sexual harassment. We find that the agency
has not fully complied with this paragraph.
Posting of Notice.
The agency's documentation shows that it posted the required notice for
60 days. We find that the agency has complied with this direction.
Attorney's Fees.
By agreement with petitioner's attorney, the agency paid $43,213
for attorney's fees. We find that the agency has complied with this
provision. Petitioner also seeks attorney's fees associated with the
instant Petition. We have awarded attorney's fees herein; however,
the determination of entitlement and amount must be initially addressed
by the parties. Petitioner's right to attorney's fees associated with
petitioner's appeals will be addressed in her two pending appeals.
CONCLUSION
Based upon a review of the record, the Commission finds that the
agency has complied with Paragraphs (A)-(D), the posting order, and
the attorney's fees order, but failed to fully comply with Paragraph
(E) of the Order in Cynthia L. Clark v. United States Postal Service,
EEOC Request No. 01956684 (September 18, 1998). The agency is directed
to comply with the Order, below.
ORDER
The agency shall take the following actions:
A. Within thirty (30) days of the date of this decision, the agency shall
provide clarification to petitioner in writing explaining her entitlement
to reimbursement, if any, for leave earned through November 28, 1998.
The agency shall provide a point of contact to respond to any further
questions regarding entitlement to leave.
B. Within sixty (60) days of the date of this decision, the agency shall
arrange for training for S1, if he remains employed by the agency,
with special emphasis on the recognition, prevention, and elimination
of sexual and age-based harassment in the workplace, the agency's duty
to insure that the workplace is free of hostile and abusive harassment,
and recognizing and eliminating offensive sexual and age-related comments.
C. The agency shall provide a report to the Compliance Officer that it has
complied with this Order. The report shall include a copy of its letter
of explanation to petitioner and certification that S1 has received the
above-described training. Copies of all transmittals to the Compliance
Officer should be sent to petitioner and petitioner's counsel.
ATTORNEY'S FEES (H0900)
If petitioner 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 (K0501)
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
petitioner. If the agency does not comply with the Commission's order,
the petitioner may petition the Commission for enforcement of the order.
29 C.F.R. � 1614.503(a). The petitioner 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. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g).
Alternatively, the petitioner 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)
(1994 & Supp. IV 1999). If the petitioner files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 29 C.F.R. � 1614.409.
STATEMENT OF PETITIONER'S RIGHTS - ON PETITION FOR ENFORCEMENT
PETITIONER'S RIGHT TO FILE A CIVIL ACTION (P0900)
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:
Carlton Hadden, Director
Office of Federal Operations
__03-19-03________
Date
1We note that, throughout this proceeding,
petitioner was represented by counsel.
2This amount represents petitioner's net after deductions, including
$59,771.30 that was paid as reimbursement for OWCP payments received
by petitioner.
3Because petitioner designated no personal contribution to her TSP
account, the agency's obligation was a 1% contribution. For further
information on FERS, petitioner is advised to consult the Office of
Personnel (website www.opm.gov).