04A00022
06-13-2001
Deborah S. Neal, Petitioner, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Deborah S. Neal v. United States Postal Service
04A00022
06-13-01
.
Deborah S. Neal,
Petitioner,
v.
William J. Henderson,
Postmaster General,
United States Postal Service,
Agency.
Petition No. 04A00022
Request No. 05970700
Appeal No. 01955437
Agency No. 4D-280-2690-93
Hearing No. 140-94-8066X
DECISION ON A PETITION FOR ENFORCEMENT
On July 20, 2000, the Equal Employment Opportunity Commission (EEOC
or Commission) docketed a petition for enforcement to examine the
enforcement of an order set forth in Deborah S. Neal v. Marvin T. Runyon,
Jr., Postmaster General, United States Postal Service, EEOC Request
No. 05970700 (December 18, 1997). This petition for enforcement is
accepted by the Commission pursuant to 29 C.F.R. � 1614.503. Petitioner
alleged that the agency failed to fully comply with the Commission's
order in that decision.
In its previous decision, the Commission had affirmed an earlier finding
that the agency had discriminated against petitioner on the basis of sex
by denying her the opportunity to work as an acting (204B) supervisor.
The Commission directed the agency to accomplish the following:
Determine the number of hours that petitioner would have worked as a
204B supervisor after June 1, 1993, and award her appropriate back pay,
interest, and benefits;
Reactivate petitioner's full participation in the 204B program;
Conduct a supplemental investigation and issue a decision on the issue
of compensatory damages;
Post notice; and
Award attorneys fees if petitioner had been represented by counsel.
The matter was assigned to a Compliance Officer and docketed as Compliance
No. 06980419 on December 18, 1997. On December 21, 1998, the agency
submitted its final compliance report. On March 22, 2000, the agency
issued a final decision in which it concluded that petitioner was not
entitled to compensatory damages. Petitioner contacted the Compliance
Officer on May 3, 2000, indicating that she wished to file a petition
for enforcement. In accordance with petitioner's request, the instant
petition was docketed on July 20, 2000. We will now review each of the
elements in the previous decision's order to determine whether further
action is necessary.
Back Pay
The record establishes that petitioner was discriminatorily removed
from the 204B program at the Dogwood facility on June 1, 1993, and that
she transferred to the Monkey Junction facility on November 26, 1994.
Petitioner argues that the agency owes her back pay with interest for
that period.
In a memorandum dated December 10, 1998, concerning petitioner's 204B
detail pay, the senior personnel specialist stated that when rural
carriers are detailed to a supervisory position for more than 30 days,
the detail salary is calculated by adding a standard 5% increase to the
base salary for a 40-hour rural schedule at the carrier's attained step.
On August 31, 1996, after the period in question, the agency implemented
a policy of paying 204B supervisors a deferential adjustment of 1.05
times the maximum annual rate for the most populated grade, in addition
to the 5% increase over the base salary. When the previous decision
was issued, petitioner was on a 44-hour route with an annual salary of
$41,450, step 12. The base salary at step 12 on a 40-hour route was
$36,042, and with a 5% premium of $1,802, the 204B supervisor would
receive an adjusted salary of $37,844, which would become $39,723 when
the adjustment differential is factored in. Thus, petitioner's 204B
salary of $39,723, would have been less her actual salary of $41,450
after1996. In 1993, she was on a 48-hour route, step 12. Her 204B detail
pay would have been calculated as follows: a base salary of $32,454,
plus a 5% premium of $1,622, yielding an adjusted salary of $34,076.
The deferential adjustment was not yet available at that time. Thus,
in 1993, her 204B detail salary would have been $34,076, which was less
than her actual salary of $42,456. Compliance Report (CR), Exhibit
(Ex.) 1. Petitioner herself acknowledged that those computations were
correct in a letter to the Compliance Officer dated February 12, 1999.
She acknowledged in this letter that she received overtime pay for each
hour worked per week in excess of the 40-hour straight-time maximum.
She has not, however, established the existence of an agency policy
under which 204B salaries were based on schedules of more than 40 hours
per week. The agency has thus shown that petitioner is not entitled
to back pay for the period between June 1993 and November 1994, even
absent discrimination.
Restoration to 204B program
Petitioner stated that she had been employed at the Monkey Junction
station since November 26, 1994, and that she covered the rural 204B
at the Monkey Junction station from October 1997 to present. CR,
Affidavit A dated January 27, 1998 (Aff. A1). Memoranda from the senior
EEO complaints processing specialist to the postmaster dated April 21,
1997, and January 9, 1998, indicated that petitioner was placed back
into the 204B program. CR. Ex. 2. In a letter submitted pursuant
to a 204B training and memorandum dated October 15, 1998, petitioner
indicated that she was selected as a rural carrier trainer for a 3-year
term, and that there would be a conflict of interest if she continued
in the 204B program. She appeared to be indicating that she was no
longer interested in being a 204B. CR, p. 2; Affs. B, C; Exs. 4, 5.
The record thus establishes that the agency complied with this element
of the previous decision's order.
Compensatory Damages
Pursuant to the Commission's order in the previous decision, the
agency completed its supplemental investigation on the question of
compensatory damages and issued a final decision on March 22, 2000, in
which it determined that complainant was not entitled to any damages.
Complainant did not appeal this decision. Accordingly, we find that
the agency fully complied with element (3) of our previous order.
Post notice
The required notice was posted at the Dogwood Annex station, Wilmington,
North Carolina, from January 21, 1998 through March 21, 1998. Compliance
Report, Exhibit 6. The customer services manager at Dogwood station
stated that he personally posted the notice on the permanent bulletin
board on January 21, 1998, where it remained until March 21, 1998. CR,
Aff. C.
Attorneys fees
While petitioner was represented at various phases during this proceeding,
there are no indications in the record that she was ever represented by
an attorney. Moreover, petitioner did not ask for attorneys fees.
Conclusion
After reviewing the instant petition for enforcement, the agency's
response, the previous decision, and the entire record, the Commission
finds the agency to have fully complied with its order in Deborah S. Neal
v. Marvin T. Runyon, Jr., Postmaster General, United States Postal
Service, EEOC Request No. 05900700 (December 18, 1997). Accordingly,
the Commission denies complainant's petition for enforcement.
STATEMENT OF PETITIONER'S RIGHTS ON PETITION FOR ENFORCEMENT
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
____06-13-01_____________
Date