04a00016
08-31-2000
Daren C. Howgate, Petitioner, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Daren C. Howgate v. United States Postal Service
04A00016
August 31, 2000
.
Daren C. Howgate,
Petitioner,
v.
William J. Henderson,
Postmaster General,
United States Postal Service,
Agency.
Petition No. 04A00016
Appeal No. 01970992
Agency No. 4-J-460-1005-94
Hearing No. 240-95-5009X
DECISION ON A PETITION FOR CLARIFICATION
On April 25, 2000, the Equal Employment Opportunity Commission (EEOC or
Commission) docketed a petition for clarification from the petitioner
requesting clarification of the Commission's decision in Daren C. Howgate
v. United States Postal Service, EEOC Petition No. 04990031 (February 4,
2000) which granted, in part, enforcement of the Commission's order in
Daren C. Howgate v. United States Postal Service, EEOC Appeal No. 01970992
(July 27, 1998).<1> The petition for clarification is accepted by the
Commission pursuant to 29 C.F.R. � 1614.503.
In his petition, the petitioner states that he is seeking a clarification
and modification of the petition for enforcement. The petitioner
prevailed in his complaint of not being hired for the position of
a part-time regular mail processor on the basis of his disability.
In EEOC Appeal No. 01970992, the Commission noted that because the
petitioner had prevailed on his claim of not being hired as a part-time
regular mail processor, full relief would entail retroactive placement
in the position improperly denied as well as all back pay and benefits.
The Order of the Commission in EEOC Appeal No. 01970992 directed the
agency to determine the appropriate amount of back pay and benefits due
to the petitioner. If there was a dispute regarding the exact amount of
back pay and benefits, the agency was to pay the petitioner the amount
the agency believed to be due. Thereafter, the petitioner could file
a petition for enforcement or clarification of any amount in dispute.
Petitioner filed a petition for enforcement alleging, in relevant part,
that the agency failed to make him �whole� by not placing him in a
full-time regular mail processor position, noting that he would have
been eligible for conversion from the part-time regular mail processor
position to a full-time regular mail processor position on November 12,
1994, had the agency not discriminated against him. Since the conversion
would have occurred on November 12, 1994, the petitioner asserted that
his back pay should be computed based on the 40-hour weekly rate of
a full-time regular mail processor beginning on November 12, 1994.
In support of this assertion, the petitioner submitted an October 19,
1994 Memorandum for the agency's Plant Manager and the American Postal
Workers Union (APWU) president which contained an agency offer of an
option to all part-time regular clerks to convert to full-time status.
After reviewing the October 19, 1994 Memorandum, the Commission determined
that in view of numerous circumstances that would have to have been met
for the petitioner to have been offered the full-time position, it was
too speculative for the Commission to conclude that petitioner would
have obtained the full-time position. Accordingly, the Commission
determined that the petitioner was not entitled to back pay and other
benefits that he would have received had he occupied the full-time
position of a regular mail processor on November 12, 1994.
In the present petition for clarification and modification of the
petition for enforcement, the petitioner states that the language in
the October 19, 1994 Memorandum regarding the conversion was misleading
and, consequently, use of the misleading language led the Commission to
mistakenly conclude that he might not have been placed in the position
of a full-time regular clerk in November 1994. In support of his
assertion, the complainant submitted a February 16, 2000 letter from
the APWU president in order to clarify the October 19, 1994 Memorandum.
In her letter, the APWU president states that any part-time regular
employee who wanted to convert to full-time status was converted.
The Commission's regulations do not provide for reconsideration of
decisions on petitions for enforcement. The Petitioner attempts to
circumvent this by requesting that the previous petition for enforcement
be clarified. Clarifications cannot change the result of a prior decision
or enlarge or diminish the relief ordered. See 29 C.F.R. �1614.503(c).
This is precisely what petitioner is seeking through his "clarification"
and modification request, and, therefore, it cannot be permitted.
Moreover, the Commission notes that the letter from the petitioner
regarding the conversion came not from an agency official but from the
APWU president and was prepared after the petition for enforcement
had fully addressed the issue of the conversion. Accordingly, the
determination in the petition for enforcement that it was proper for the
agency to place the petitioner into the position of a part-time regular
mail processor and not into the full-time regular mail processor position
remains the Commission's final determination.
Based upon review of the record and for the foregoing reasons, the
petitioner's petition for clarification is DENIED.
STATEMENT OF RIGHTS - PETITION FOR CLARIFICATION
RIGHT TO FILE A CIVIL ACTION (P0993)
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. 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 that 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. 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,
[PAGE 7] 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 M. Hadden, Director
Office of Federal Operations
August 31, 2000
__________________
Date
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
______________________________
1On 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.