David L. Reynolds, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionNov 4, 2009
0520090476 (E.E.O.C. Nov. 4, 2009)

0520090476

11-04-2009

David L. Reynolds, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.


David L. Reynolds,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service,

Agency.

Request Nos. 0520090475, 0520090476

Appeal Nos. 0720080026, 0120082503

Hearing No. 340-2003-03463X

Agency No. 1F-927-0061-02

DENIAL

Complainant timely requested reconsideration of the decisions in David

L. Reynolds v. United States Postal Service, EEOC Appeal No. 0720080026

(April 30, 2009) and David L. Reynolds v. United States Postal Service,

EEOC Appeal No. 0120082503 (April 30, 2009). EEOC regulations

provide that the Commission may, in its discretion, grant a request

to reconsider any previous Commission decision where the requesting

party demonstrates 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. See 29 C.F.R. � 1614.405(b).

The record reveals that on September 30, 2007, the Administrative

Judge in this case issued a decision awarding complainant certain

relief, including attorney's fees. On December 10, 2007, exactly 40

days after its receipt of the AJ's decision, the agency issued a final

order implementing the AJ's decision with the exception of the award of

attorney's fees. The agency also filed its appeal with the Commission,

docketed as Appeal No. 0720080026. The envelope in which the appeal

was mailed was postmarked January 2, 2008. In its appellate decision,

the Commission dismissed the agency's appeal as untimely, noting that

the agency did not file its appeal simultaneously with the issuance of

its final order, as required, and that the agency's appeal was filed

23 days after the issuance of the final order, putting it outside the

60 day timeframe for an agency appeal and supporting brief to be filed.

See 29 C.F.R. �� 1614.110(a), 1614.403(d).1

On March 18, 2008, while Appeal No. 072000026 was pending, the agency

notified the Commission and complainant that it was rescinding its

December 10, 2008 final order and would fully implement the relief awarded

by the AJ, including attorney's fees. Thereafter, by appeal post-marked

March 24, 20082, complainant sought to appeal the agency's rejection of

the AJ's award of attorney's fees, as well as submit information bearing

on the clarification and enforcement of the amount of back pay due him.

This matter was docketed as Appeal No. 0120082503.

Upon consideration, the Commission construed the March 24, 2008,filing as

an appeal of the agency's December 10, 2007, final order. Concurrent with

the dismissal of the agency's appeal, the Commission issued a decision

dismissing complainant's appeal as untimely. David L. Reynolds v. United

States Postal Service, EEOC Appeal No. 0120082503 (April 30, 2009).

Complainant requested reconsideration of both decisions, filing a pleading

styled "Request for Reconsideration and Petition for Enforcement."

As part of the documentation submitted with this request, complainant

argues that he timely appealed from the agency's March 18, 2008,

rescission, and provides proof of the date on which Appeal No. 0120082503

was filed; to wit, March 24, 2008.

Pursuant to the Commission's regulations, a complainant "may appeal

an agency's final action or dismissal of a complaint." 29 C.F.R. �

1614.401(a). The appeal must be filed "within 30 days of receipt of

the dismissal, final action or decision." 29 C.F.R. � 1614.402(a).

In addition, if an agency elects not to fully implement the decision of an

AJ, the agency "shall simultaneously file an appeal" with the Commission.

29 C.F.R. � 1614.110(a).

In this case, the agency issued a final order on December 10, 2007,

received by complainant on December 12, 2007. The agency therein rejected

a portion of the AJ's decision. However, because the agency's subsequent

appeal of the AJ's decision was untimely, its appeal was dismissed.

When an agency does not issue a final order within 40 days of its

receipt of the AJ's decision, the AJ's decision "shall become the final

action of the agency." 29 C.F.R. � 16144.109(i). Accordingly, once

the agency's appeal was dismissed as untimely filed, the AJ's decision

became the final decision of the agency on the fortieth day after the

agency received the AJ's decision; that is, December 10, 2007.

Notwithstanding complainant's argument to the contrary, there is neither

regulatory provision nor precedent to support the proposition that an

agency's election to rescind a final order constitutes a "final agency

action." Moreover, given that the agency's untimely appeal resulted

in the AJ's decision becoming the "final action of the agency" pursuant

to our regulations, there was in fact no final order in effect for the

agency to rescind. We therefore conclude that the latest final agency

action from which complainant could appeal occurred on December 10,

2007, and was received by complainant on December 12, 2007. In order

to be timely, complainant would have had to file his appeal not later

than January 2, 2008.3

Therefore, after reconsidering the previous decisions and the entirety

of both records, the Commission finds that complainant's requests fail

to meet the criteria of 29 C.F.R. � 1614.405(b), and it is the decision

of the Commission to deny the requests. The decisions in EEOC Appeal

Nos. 0720080026 and 0120082503 remain the Commission's decisions.

There is no further right of administrative appeal on the decision of

the Commission on this request. The agency shall comply with the Order

as set forth below.

ORDER

Within thirty (30) days after this decision becomes final, and to the

extent that it has not already done so, the agency shall comply with

the following provisions:

1. Pay complainant back-pay for the period since he was placed on

AWOL, less any amounts actually earned;

2. Pay interest on back pay, and provide all other benefits,

including retroactive seniority, under pertinent Office of Personnel

Management Regulations and 29 C.F.R. � 1614.501;

3. Provide training to its managers and supervisors, especially

those named herein, with regard to the Title VII's prohibition against

disability discrimination and retaliation, within six (6) months of

final decision;

4. Post a Notice of this finding of discrimination, pursuant to

29 CF.R. � 1614, stating the ruling after hearing and that it is being

posted pursuant to this decision, in a prominent location where employee

notices are typically posted at Complainant's last place of employment,

continuously for a period of six (6) months starting with Final Decision;

5. Pay to complainant the sum of $75,000.00 as non-pecuniary

compensatory damages;

6. Pay complainant an amount to compensate him for the tax

consequences of a lump-sum wage payment, according to proof to be provided

by complainant;

7. Remove all references to the LWOP and Notice of Removal from

his OPF, his agency files and all supervisory files, within thirty (30)

days of Final Decision, and make all future employment decisions without

reference to such events;

8. Reinstate Complainant to the same position in the same job

series and grade he previously held, in a location within 30 miles of

his residence in Orange County;

9. Pay Complainant front pay until the date of reinstatement for

up to three (3) years;

10. Pay Attorneys' fees and costs in the amounts requested (as

detailed in the AJ's Order).

POSTING ORDER (G0900)

The agency is ordered to post at its Santa Ana District, California

facility 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.

ATTORNEY'S FEES (H0900)

If complainant 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 (K1208)

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 77960, Washington,

DC 20013. 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.

COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (P0408)

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 (Z1008)

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 from the Court that

the Court appoint an attorney to represent you and that the Court also

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 with

the Court 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

November 4, 2009

Date

1 This decision also noted that complainant's response to the agency's

appeal, styled "Motion to Strike Agency's Brief and Motion for

Enforcement" could not be construed as an appeal of the final agency

order because it had been filed January 18, 2008, more than 30 days

after complainant received the December 10, 2007 final agency order.

2 We note that the appellate decision regarding this matter misstated the

date of filing as May 23, 2008. For the reasons explained in the text,

infra, this misstatement amounts to harmless error.

3 The thirtieth day from the date of receipt was January 1, 2008,

a Federal holiday. The time to file therefore extends to the next

business day. 29 C.F.R. � 1614.604(d).

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0520090475

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

6

0520090475, 0520090476