01A33205_r
03-10-2004
Davy K. Wright, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Davy K. Wright v. United States Postal Service
01A33205
March 10, 2004
.
Davy K. Wright,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A33205
Agency No. 4G-780-0151-01
Hearing No. 360-A2-8548X
DECISION
Complainant filed an appeal with the Commission on March 31, 2003,
seeking a determination whether the agency has fully complied with its
final agency action.
The record reveals that during the relevant time, complainant worked as a
mail handler in the agency's Austin, Texas facility. Complainant filed a
formal complaint alleging that he was discriminated against on the basis
of perceived disability when: the agency denied complainant overtime work
from July to December 2000.<1> At the conclusion of the investigation,
complainant requested a hearing before an EEOC Administrative Judge (AJ).
Following a hearing, the AJ issued a decision finding that complainant
was discriminated against on the basis of his perceived disability when
the agency denied him overtime.
On January 6, 2003, the agency issued a notice of final action fully
implementing the AJ's decision. The agency's decision provided the
following remedies:
The [agency] shall determine the appropriate amount of back pay
with interest and other benefits that [complainant is] owed as a
result of the discriminatory allocation of overtime opportunities.
In accordance with the AJ's decision, the [agency] will determine
the total number of days between July 1 and December 5, 2000[,] when
[complainant was] present for duty and worked at least eight hours.
The [agency] will disregard [complainant's] medical restrictions and
will apply the procedure in use at the time for allocating overtime
work among employees on the Tour 1 overtime desired list. For each day
[complainant] would have been offered overtime under the above criteria,
the [agency] will pay [complainant] a sum equal to the average per diem
overtime payment received by employees on the Tour 1 overtime desired
list during the July 1 through December 5, 2000 time period.
The [agency] will review its overtime allocation procedures at the
Austin, Texas facility and make whatever changes are necessary to ensure
that employees who are qualified individuals with disabilities under the
Rehabilitation Act and who request reasonable accommodation in performing
overtime work assignments receive their fair share of overtime.
The [agency] will train the appropriate managers and supervisors
in the Austin, Texas facility concerning their obligations under the
Rehabilitation Act for providing, when required, reasonable accommodation
with regard to allocation of overtime among employees on the overtime
desired list.
The [agency] will pay [complainant's] attorney representative . . .
Nine Thousand Two Hundred Five and 65/100 Dollars ($9[,]205.65).
In a February 20, 2003 letter to the agency, complainant alleged that the
agency completely failed to comply with its January 6, 2003 final action.
In a March 24, 2003 letter, complainant states that the allegation of
non-compliance has been partially addressed. Specifically, complainant
notes that the award of attorney's fees was received on March 5, 2003.
However, complainant states that he is still awaiting a written response
to the non-compliance allegation. Complainant states that a back
pay award was received a week after the attorney's fees; however, he
notes that there was no explanation accompanying the back pay check.
Complainant disputes the back pay award as too low and requests a
comprehensive, written explanation as to how the back pay was computed.
On March 31, 2003, complainant filed the present appeal concerning his
allegation of non-compliance. Complainant states that he still has
not received a response from the agency regarding the back pay award
which he claims is too low. Additionally, complainant states that he
has not received a mathematical computation showing how the back pay
award was calculated.
The record reveals that following complainant's appeal, the agency issued
an April 7, 2003 letter regarding his allegation of non-compliance.
The agency stated that during the hearing, complainant was provided
with a spreadsheet and his time records for the period of July through
December 2000. The agency noted that the spreadsheet identified
opportunities complainant would have had to work up to ten hours of
overtime. The agency stated that complainant was also provided all time
records for overtime-desired list employees for the July through December
2000 time period and the overtime-tracking sheet for the same period.
The agency explained that it used the tracking sheet, spreadsheet,
complainant's time records, and the time records of all OTDL employees to
identify the days complainant would have been available to work ten hours
(the average overtime worked by the overtime desired list). The agency
noted that complainant was not paid any overtime on days he was either
not at work or worked less than eight hours. The agency stated that
complainant was paid for a total of 49.25 hours of overtime.
The record contains �Tour 1 Mailhandler Overtime Rotation List �BT/ET'�
from July through December 2000, and a �Tour 1 Mailhandler Overtime
Rotation List �Full day'� from July through December 2000.
The record contains a �Clock Rings and Hours History� for the Tour 1
Mailhandlers listed on the Overtime Rotation List for pay periods 12
for the year 2000, through pay period 2 for the year 2001. The record
also contains copies of the leave and earning statements (LES)
from pay period 15 through pay period 26 in 2000, for complainant
and five other employees listed on the Tour 1 Mailhandler Overtime
Rotation List. Additionally, accompanying the LES is a handwritten
summary for complainant and the same five Tour 1 Mailhandlers listing
the total sick leave, annual leave, overtime, and leave without pay,
for pay periods 15 through 26 in 2000.
The record contains a chart entitled, �[Complainant's] Overtime
Opportunities� for the months of July through December 2000. The agency
lists each day of the month and marked �NA� for the days complainant was
either not at work (either annual leave, sick leave, leave without pay, or
absent without leave). Additionally, the agency states that it shaded the
days that complainant did not work a full eight hours and would have been
unavailable for overtime.<2> The agency chart found that complainant was
denied 16.00 hours of overtime in July 2000, 9.25 hours in August 2000,
8.00 hours in September 2000, 8.00 hours in October 2000, 8.00 hours in
November 2000, and no hours in December 2000, totaling 49.25 hours.
Additionally, the record contains fifteen �Pay, Leave, or Other Hours
Adjustment Request� forms requesting payment for a total of 49.25 hours
between pay period 15, week 2 for 2000. The forms are signed as approved
on January 24, 2003.
Complainant contends that the agency failed to pay him the appropriate
amount of back pay. Additionally, he requests a detailed calculation
as to how the back pay award was calculated. While we acknowledge that
the record contains a chart listing the hours complainant was allegedly
denied overtime for the months of July through December 2000, we note
that the agency fails to specifically explain how it determined that
complainant was entitled to the stated amount of overtime on the days
listed. Further, although the agency states in its April 7, 2003 letter
that ten hours was the average overtime worked by the overtime desired
list, it fails to specifically indicate how it calculated that average.
Additionally, we note that the agency fails to specify the overtime
pay rate which was provided to complainant. Finally, we note that the
agency provided no evidence that complainant was provided the appropriate
amount of interest on the back pay award. Thus, we find that there is
insufficient information in the record to determine whether the agency
complied with its final action. Therefore, we shall remand the matter
so that the agency may show whether it has complied with its January 6,
2003 decision.
Accordingly, the agency's decision is VACATED and the matter is REMANDED
to the agency for further processing in accordance with the Order herein.
ORDER
Within 30 days of the date this decision becomes final, the agency shall:
Provide in the record a detailed explanation of the total number of days
between July 1 through December 5, 2000, when complainant was present
for duty and worked at least eight hours.
Provide in the record specific information describing the procedure
in use at the time for allocating overtime work among employees on the
Tour 1 overtime desired list and explain how it determined which days
complainant would have been offered overtime under this criteria.
Provide in the record evidence indicating how it determined the average
per diem overtime payment received by employees on the Tour 1 overtime
desired list during the July 1 through December 5, 2000 time period.
Provide in the record an explanation detailing the appropriate
amount of back pay due complainant and include an explanation of the
interest calculated on this payment. The agency shall provide a copy
of all documentation used in calculating the back pay and interest
to complainant.
Issue a decision to complainant determining whether the agency has
complied with the relief ordered in provision 1 of its January 6,
2003 decision. A copy of the decision must be sent to the Compliance
Officer referenced herein.
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
March 10, 2004
__________________
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
______________________________
1Initially complainant included the bases of race, color and retaliation
in his complaint; however, he withdrew these additional bases prior to
the commencement of the hearing.
2Based on the copy in the record, the Commission is unable to determine
which days are shaded and thus according to the agency were the days
complainant failed to work a full eight hours.