01A23786_r
12-18-2003
Daron Crye, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Daron Crye v. United States Postal Service
01A23786
December 18, 2003
.
Daron Crye,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A23786
Agency No. 4G-780-0437-99
Hearing No. 360-A0-8293X
DECISION
On June 20, 2002, complainant filed an appeal with the Commission
alleging that the agency failed to comply with an EEOC Administrative
Judge (AJ)'s Order issued on November 29, 2001.
The record reveals that complainant was employed as a City Letter Carrier,
Grade Level PS 5, at the agency's Waco, Texas facility. On October 14,
1999, complainant filed a formal complaint alleging that he was the
victim of unlawful employment discrimination on the bases of race,
sex and in reprisal for prior EEO activity when on July 28, 1999, he
was issued a Letter of Warning for improper conduct and failure to
follow instructions.
On November 29, 2001, an AJ issued a decision finding no discrimination
on the bases of sex and race. The AJ, however, found discrimination on
the basis of reprisal when complainant was issued a Letter of Warning
for improper conduct and for failure to follow instructions. In her
decision, the AJ ordered the agency to take the following remedial action:
(1) Pay the Complainant $1,500.00 for emotional distress;
(2) Pay the Complainant overtime including interest for the period June
1998 until August 1999. The overtime should be equal to the average
amount of overtime received by other
carriers in the same pay location, classification and position on the
overtime-desired list as complainant; and
(3) Reimburse complainant $9,380.00 for attorney's fees.
On January 25, 2002, the agency issued a final action, indicating that
it was adopting the AJ's �recommended remedy action.�
However, by letter to complainant's attorney dated April 2, 2002,
the agency indicated that complainant would not be paid any overtime.
The agency stated that pursuant to the AJ's order, the agency prepared
a matrix demonstrating the overtime worked by a number of carriers for
the relevant time period ( Pay Period 12 in 1998 through Pay Period
13 in 1999). The agency further stated that its calculations showed
that complainant's average hours for the relevant period were 591.63,
but that the average hours of the other carriers is 429.75. The agency
determined since complainant's overtime pay is higher than the carriers
on the overtime list, it does not owe complainant any overtime pay.
By letter dated May 13, 2002, complainant's attorney notified the agency
of its alleged noncompliance. Specifically, the attorney stated she
completed her own investigation and found that �not one of the Carriers
in the Agency's Matrix were on the same classification and position on
the overtime - desired list as Complainant.� (emphasis in the original).
In response to the letter of May 13, 2002, the agency stated in a letter
dated May 20, 2002, that complainant was compared to all other carriers
on the overtime desired list in his pay location.
On June 20, 2002, complainant submitted a document to the Commission
entitled �Petition for Enforcement,� alleging that the agency failed to
follow the specific order of the AJ implementing the ordered corrective
action. Complainant contends that three of the ten employees named on
the matrix were not in the same location, classification, and position
on the overtime desired list as him. Specifically, complainant contends
that only one of the ten employees named on the matrix (hereinafter
identified as � C-1") has the same T-6 Carrier position as complainant;
that C-1 did not start working at complainant's pay location station
until March 13, 1999; and that C-1 was not on the overtime desired list
until the end of that quarter. Furthermore, complainant contends that
another employee placed on the matrix (hereinafter identified as �C-2"),
was a part-time flexible (PTF) which made him ineligible to be placed
on an overtime desired list. Complainant states that C-2 has never
been a T-6 carrier. Finally, complainant states that a third employee
(hereinafter identified as �C-3") has not been a T-6 carrier and that he
has a medical condition which has necessitated his being on a modified
duty, whose time drastically reduced the overtime hours at issue.
In response, the agency determines that it has fully complied with
the corrective action ordered by the AJ. The agency argues that the
basis of complainant's argument appears to be his disagreement with the
comparison employees used to average the overtime for the period cited.
The agency further argues that for the purpose of overtime tracking,
the agency makes no distinction between Level 5 and Level 6 carriers.
Further, the agency determined that the only issue to be considered was
whether the named carriers volunteered for the 10-hour overtime desired
list or for the 12-hour overtime desired list. The agency stated that
if the Commission accepts complainant's appeal that the three named
employees should have not been used as comparatives in the matrix,
that the record still reflects that the seven remaining comparatives
averaged 466.86 hours of overtime during the period in question while
complainant averaged 591.63. The agency notes that only one carrier
earned more overtime hours than complainant during the relevant period.
Further, the agency construes complainant's counsel's argument on appeal
as being that the only valid method of comparison would be to compare
complainant against himself.
On August 7, 2002, complainant, through his attorney, restates his
argument that not one of the comparatives used by the agency in its
analysis should have been used. Complainant requests $17,524.00 of lost
overtime pay plus applicable interest and $2,620.00 plus an additional
$300.00 for this reply for a total of $2,920.00 in attorney's fees.
The record contains affidavits from three carriers named on the agency's
matrix. In her affidavit, C-1 stated that she is a T-6 Carrier but did
not start working at petitioner's pay location until March 13, 1999.
C-1 also stated that she was not on the 10-hour overtime desired list
the entire period at issue. In his affidavit, C-2 stated that during
the period at issue he was a PTF and was not eligible for overtime.
C-2 stated he became a regular in May 1999 at Level 5 and was not eligible
for the overtime desired list until July 1999. The record also contains
an affidavit from a carrier named on the matrix (hereinafter identified
as �C-4"). In his affidavit, C-4 states that he was primarily on the
10-hour overtime desired list and that he may have been on the 12-hour
overtime desired list for a short period.
EEOC Regulation 29 C.F.R. � 1614.504 provides that a final action that
has not been the subject of an appeal to the Commission or a civil action
is binding on the agency, and that if a complainant believes the agency
has failed to comply with the terms thereof, he shall notify the agency
within 30 days of learning of the alleged noncompliance. If, after 35
days from the agency's receipt of complainant's written allegations of
noncompliance, the complainant is not satisfied with the agency's attempt
to resolve the matter, the complainant may appeal to the Commission for
a determination as to whether the agency has complied with the terms of
the final decision. See 29 C.F.R. � 1614.504(b).
The AJ's order states that complainant's overtime should be equal to the
average amount of overtime received by other carriers in the �same pay
location, classification and position on the overtime-desired list as
Complainant in the downtown Waco Station . . . .� The record in this
case, however, contains insufficient evidence for the Commission to
determine whether the agency has paid complainant overtime commensurate
with this description. The Commission notes, for example, that the record
contains a matrix of ten employees with overtime totals for the relevant
period, in comparison to complainant's overtime totals. But this matrix,
without more, does not reflect whether complainant has been paid the same
overtime received by carriers in the �same pay location, classification
and position on the overtime desired list� as complainant. The matrix
is silent regarding the comparatives' classifications and positions,
i.e., whether the comparatives were grade PS 5, as complainant, or a
higher grade, such as PS 6. Moreover, the Commission notes that the
agency argues on appeal that for the purpose of overtime tracking,
the agency makes no distinction between Level 5 and Level 6 carriers;
however, the record contains nothing to support this assertion.
In conclusion, the Commission determines that it is unable to ascertain
whether the agency complied with the AJ's recommended remedial action
relating to overtime. Accordingly, the agency's finding that it is in
compliance with the AJ's remedy is VACATED. This matter is REMANDED to
the agency for further processing in accordance with the ORDER below.
ORDER
The agency is ORDERED to take and complete the following actions within
thirty (30) calendar days of the date that this decision becomes final:
Supplement the record with documentary evidence reflecting whether it
used comparative carriers in the same pay location, classification and
position on the overtime desired list as complainant for the period of
Pay Period 12 of 1998 through Pay Period 13 of 1999. Such evidence
shall precisely delineate the pay location and classification of the
comparative carriers. The agency shall also provide, if available,
any documentation reflecting whether for purposes of overtime tracking,
no distinction was made between GS 5 and GS 6 level carriers. Thereafter,
the agency shall again notify complainant as to whether he will be awarded
additional overtime and interest as specified in the November 29, 2001
AJ order.
The agency shall submit evidence of compliance to the Compliance Officer
as referenced below.
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 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 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)
(1994 & Supp. IV 1999). If the complainant 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 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 (R0900)
This is a decision requiring the agency to continue its administrative
processing of your complaint. However, if you wish to file a civil
action, you have the right to file such action in an appropriate United
States District Court within ninety (90) calendar days from the date
that you receive this decision. 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 (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
December 18, 2003
__________________
Date