01971581
12-10-1998
David Roberts Appellant, v. William H. Henderson, Postmaster General, United States Postal Service (Southeast/Southwest), Agency.
David Roberts v. United States Postal Service
01971581
December 10, 1998
David Roberts )
Appellant, )
)
v. )
) Appeal No. 01971581
William H. Henderson, ) Agency No. 1H-321-1125-94
Postmaster General, ) Hearing No. 150-95-8218X
United States Postal Service )
(Southeast/Southwest), )
Agency. )
)
DECISION
Appellant timely appealed the agency's final decision concerning his
complaint of unlawful employment discrimination on the basis of his
physical disability (hearing and speech impairment) in violation of �501
of the Rehabilitation Act of 1973, as amended, 29 U.S.C. �791 et seq.
The Commission accepts this appeal in accordance with EEOC Order
No. 960.001.
The record reveals that after a hearing with an EEOC Administrative Judge,
the AJ issued a recommended decision of discrimination, concluding that
on April 12, 1994, the agency unlawfully denied appellant Bid Job #1322,
Distribution Clerk, KP-12, PS-5, because of his physical disability.
As remedial relief, the AJ recommended that the agency take the following
actions:
(1) Pay appellant back pay computed in the manner prescribed by 5
C.F.R. �550.805, and other benefits he would have received but for the
discrimination.
(2) Place appellant in a similar Distribution Clerk position and provide
him with reasonable accommodation for his hearing and speech disability.
(3) Provide training for supervisory and managerial staff at the agency's
main facility in Tallahassee, Florida. The training should detail their
responsibilities under the Rehabilitation Act, as amended, and EEOC
regulations with respect to eliminating discrimination in the Federal
workplace...etc.
(3) Issue all notices required and/or recommended in 29
C.F.R. �1614.501.
Subsequently, the agency issued a final decision adopting the AJ's
recommended finding of discrimination. However, a dispute arose
concerning appellant's entitlement to "out-of-schedule" pay as part of
the AJ's award of "full relief." The agency contends that the AJ did
not specifically address "out-of-schedule" pay, therefore, the final
agency decision adopting the AJ's decision did not include such an award.
Appellant contends that "if there had been no discrimination," he would
have been eligible and would have received "out-of-schedule" pay for
all hours worked outside of Job #1322.
EEOC Regulations provide that when an agency, in an individual case of
discrimination, finds that an employee has been discriminated against, the
agency shall provide full relief, 29 C.F.R. �1614.501; See EEOC Management
Directive (MD) 110, Chapter 8, Section VI (Oct. 22, 1992). Relief is
designed to make a person who has been subjected to discrimination "whole"
by placing him or her "as near as may be, in the situation [they] would
have occupied if the wrong [had] not been committed." Albemarle Paper
Co. v. Moody 422 U.S. 405, 418-19 (1975). This requires eliminating
the particular unlawful employment practice complained of, as well as
restoring the victim to the position he or she would have occupied were
it not for the unlawful discrimination. Id. at 420-21. In addition,
29 C.F.R. �1614.501(a) (2) requires a "commitment that corrective,
curative or preventative action will be taken, or measures adopted, to
ensure that violations of the law similar to those found will not recur."
In the present case, appellant prevailed on his claim of discrimination.
Full relief would entail retroactive placement into the position or
a similar position appellant was unlawfully denied with appropriate
reasonable accommodation for his disabilities, as well as all back pay and
benefits. The Commission has approved the award of "out-of-schedule" pay
as relief in appropriate cases. See Espinosa v. U.S.P.S., EEOC Appeal
No. 01942784 (April 30, 1998); and McDonald v. U.S.P.S., EEOC Appeal
No. 01880699 (May 11, 1988). According to the agency's Employee and Labor
Relations Manual (ELM), Section 434.6 provision for "Out-of-Schedule
Premium," such premium is paid to "eligible full-time bargaining-unit
employees for time worked outside of, and instead of, their regularly
scheduled workday or workweek when employees work on a temporary schedule
at the request of management." Considering the agency's guidelines
for out-of-schedule pay we find that a benefit of appellant's Bid Job
#1322 was eligibility for "out-of-schedule premium." We further find
that an award of "out-of-schedule" pay would not equate to more pay,
allowances, and differentials than appellant would have been entitled
to receive if the unjustified or unwarranted personnel action had not
occurred. Accordingly, we reverse the agency's decision and find that
appellant is entitled, as part of his award of full relief, to any "out
of schedule pay appellant would have received had he been placed in Job
#1322 from April 12, 1994, until the time when the position or similar
position was eventually awarded.
In accordance with this finding, we note that appellant continued to work
in a position which provided him with Saturday and Sunday as off days.
Job #1322 provided appellant with Sunday and Monday as off days and the
following daily work schedule 1600-0050. Therefore, appellant shall be
paid "out-of-schedule"pay for any time he would have worked outside of,
and instead of, his regularly scheduled workday or workweek as provided
by the Job Announcement for Job #1322 located at Exhibit 7 of the
investigative file.
We further note that it would be appropriate for the agency to determined
the amount of time appellant would have worked "out-of-schedule" by
calculating the "out-of-schedule time" of the employee who was awarded
Job #1322 in lieu of appellant. Appellant should be awarded this amount
calculated with his appropriate seniority allowances.
ORDER
The agency is ORDERED to take the following remedial action:
1. Within thirty (30) calendar days of the date this decision becomes
final, the agency is directed, if it has not already done so, to offer
appellant Job #1322 or a similar position and an appropriate reasonable
accommodation for his hearing and speech disabilities. The offer shall
be made in writing. Appellant shall have 15 days from receipt of offer
within which to accept or decline the offer. Failure to accept the offer
within the 15-day period will be considered a declination of the offer,
unless appellant can show that circumstances beyond his control prevented
a response within the time limit.
2. The agency shall determine the appropriate amount of back pay
(with interest, if applicable) and other benefits, including any
"out-of-schedule" premiums appellant would have been eligible
for absent the instant discrimination, due appellant, pursuant to
29 C.F.R. �1614.501, from April 12, 1994, to the date of placement,
no later than sixty (60) calendar days after the date this decision
becomes final. The appellant shall cooperate in the agency's efforts to
compute the amount of back pay and benefits due, and shall provide all
relevant information requested by the agency. If there is a dispute
regarding the exact amount of back pay and/or benefits (including any
out-of-schedule premiums appellant would have been eligible for absent the
instant discrimination), the agency shall issue a check to the appellant
for the undisputed amount within sixty (60) calendar days of the date
the agency determines the amount it believes to be due. The appellant
may petition for enforcement or clarification of the amount in dispute.
The petition for clarification or enforcement must be filed with the
Compliance Officer, at the address referenced in the statement entitled
"Implementation of the Commission's Decision."
3. The agency shall post copies of the attached notice at the Untied
States Postal Service, Main Post Office Facility, Tallahassee, Florida.
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.
4. The agency shall provide training in the obligations and duties imposed
by the Rehabilitation Act to the agency official(s) responsible for the
instant action.
5. The agency is further directed to submit a report of compliance, as
provided in the statement entitled "Implementation of the Commission's
Decision." The report shall include supporting documentation of the
agency's calculation of back pay and other benefits, including"out-of-
schedule" pay, due appellant, as well as evidence that the corrective
action has been implemented.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0595)
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 appellant. If the agency does not comply with the Commission's
order, the appellant may petition the Commission for enforcement of
the order. 29 C.F.R. �1614.503 (a). The appellant 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. �� 1614.408, 1614.409, and 1614.503 (g). Alternatively,
the appellant 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. �� 1614.408 and 1614.409. 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) (Supp. V 1993). If the
appellant files a civil action, the administrative processing of the
complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. �1614.410.
ATTORNEY'S FEES (H1092)
If appellant 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.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION (S0993)
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, 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. If you file a request to reconsider and also file a
civil action, filing a civil action will terminate the administrative
processing of your complaint.
REQUEST COUNSEL (Z1092)
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:
Dec 10, 1998
______________
Date Ronnie Blumenthal, Director
Office of Federal Operations
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
An agency of the United States Government
This Notice is posted pursuant to an Order by the United States Equal
Employment Opportunity Commission, dated ________, which found that
a violation of �501 of the Rehabilitation Act of 1973, as amended,
29 U.S.C. �791 et seq. has occurred at this facility.
Federal law requires that there be no discrimination against any
employee or applicant for employment because of the person's RACE,
COLOR, RELIGION, SEX, NATIONAL ORIGIN, AGE, or PHYSICAL or MENTAL
DISABILITY with respect to hiring, firing, promotion, compensation,
or other terms, conditions or privileges of employment.
The United States Postal Service, Main Post Office Facility,
Tallahassee, Florida, supports and will comply with such Federal
law and will not take action against individuals because they have
exercised their rights under law.
The United States Postal Service, Main Post Office Facility,
Tallahassee, Florida, has remedied the employee affected by the
Commission's finding by placing him in a Distribution Clerk, KP-12,
PS-5, or similar position and providing reasonable accommodations for
his disabilities, back pay and out-of-schedule pay, and training in
the obligations and duties imposed by the Rehabilitation Act to the
agency official responsible for the instant action. United States
Postal Service, Main Post Office Facility, Tallahassee, Florida,
will ensure that officials responsible for personnel decisions and
terms and conditions of employment will abide by the requirements
of all Federal equal employment opportunity laws.
The United States Postal Service, Main Post Office Facility,
Tallahassee, Florida, will not in any manner restrain, interfere,
coerce, or retaliate against any individual who exercises his or her
right to oppose practices made unlawful by, or who participates in
proceedings pursuant to, Federal equal employment opportunity law.
Date Posted:
Posting Expires:
29 C.F.R. Part 1614