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