05A00612
12-27-2000
Dennis D. Petrack, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Dennis D. Petrack v. U.S. Postal Service
05A00612
December 27, 2000
.
Dennis D. Petrack,
Complainant,
v.
William J. Henderson,
Postmaster General,
United States Postal Service,
Agency.
Request No. 05A00612
Appeal No. 01A00495
Agency No. 4C-2467-93
Hearing No. 220-99-5190X
DENIAL OF REQUEST FOR RECONSIDERATION
Both the complainant and the agency filed requests to the Equal Employment
Opportunity Commission (EEOC or Commission) to reconsider the decision
in Dennis D. Petrack v. U.S. Postal Service, EEOC Appeal No. 01A00495
(March 22, 2000).<1>
EEOC Regulations provide that the Commission may, in its discretion,
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).
Agency's request for reconsideration.
The agency argues that the Commission erred in its previous decision when
it reversed the agency's determination to reject the EEOC Administrative
Judge's (AJ) finding that complainant was the victim of reprisal regarding
the denial of a change of tour request. Specifically, the agency argues
that the evidence of record fails to establish that the plant manager
knew of complainant's prior EEO activity at the time of the denial,
and that the AJ erroneously concluded that complainant established a
prima facie case of reprisal.
Our review of the record discloses that the AJ determined that the plant
manager had knowledge of complainant's prior EEO activity based on the
report of complainant's request for counseling, as well as her assessment
of the plant manager's affidavit testimony. We note that the AJ weighed
this evidence in light of her credibility assessments of both complainant
and the plant manager, and that this assessment must be accorded a high
degree of deference due to the AJ's first-hand knowledge, through personal
observation, of the demeanor and conduct of the witnesses. Therefore, we
find that the AJ's determination that the plant manager had knowledge of
complainant's prior EEO activity is supported by substantial evidence,
and we discern no error in the previous decision. See 29 C.F.R. �
1614.405(a); Universal Camera Corp. v. National Labor Relations Board,
340 U.S. 474, 477 (1951).
Accordingly, we conclude that the agency's request for reconsideration
fails to meet the criteria of 29 C.F.R. � 1614.405(b), and it is
the decision of the Commission to deny the request. The decision in
EEOC Appeal No. 01A00495 remains the Commission's final decision.
There is no further right of administrative appeal on the decision of
the Commission on this request for reconsideration.
Complainant's request for reconsideration.
In his request for reconsideration, complainant argues that the award
of $5,000.00 as compensatory damages is �exceedingly incomplete,�
and requests an award of $300,000.00. In response, the agency argues
that complainant has not satisfied the requisite criteria to request
reconsideration of a previous Commission decision, and that the damages
claimed are not related to the reprisal incident at issue.
In the previous decision, the Commission determined that the AJ's award
of $5,000.00 was appropriate, notwithstanding complainant's arguments
that this award should be much greater. Review of the record indicates
that the AJ relied on both documentary evidence and hearing testimony
in making a decision on an award of compensatory damages, and that she
used the correct legal standards in reaching her conclusion. Therefore,
we find that the AJ's determination regarding the award of compensatory
damages is supported by substantial evidence, and we
discern no error in the previous decision. See 29 C.F.R. � 1614.405(a);
Universal Camera Corp. supra.
Accordingly, we conclude that complainant's request for reconsideration
fails to meet the criteria of 29 C.F.R. � 1614.405(b), and it is
the decision of the Commission to deny the request. The decision in
EEOC Appeal No. 01A00495 remains the Commission's final decision.
There is no further right of administrative appeal on the decision of
the Commission on this request for reconsideration.
ORDER
The agency shall comply with the AJ's July 27, 1999, remedial relief
by providing the following:
1. Within 30 days of the date this decision becomes final the agency
shall provide complainant the tour change as requested by his physician.
2. Within 30 days of the date this decision becomes final the agency
shall pay complainant $5,000.00 in compensatory damages.
3. The agency shall pay complainant reasonable attorney's fees as
appropriate as set forth in the Attorney's Fees order herein.
4. The agency shall submit evidence of compliance with provisions 1 and
2 of this Order, including a document reflecting complainant's schedule
change and a copy of the check sent to complainant for the compensatory
damages, to the Compliance Officer referenced herein.
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 (K0900)
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)(Supp. V 1993). 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 (T0900)
This decision affirms the agency's final decision/action in part, but it
also requires the agency to continue its administrative processing of a
portion of your complaint. 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 on both that portion
of your complaint which the Commission has affirmed and that portion
of the complaint which has been remanded for continued administrative
processing. 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 your appeal with the Commission, until
such time as the agency issues its final decision on your complaint.
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.
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
December 27, 2000
__________________
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
______________________________
1On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply
to all federal sector EEO complaints pending at any stage in the
administrative process. Consequently, the Commission will apply
the revised regulations found at 29 C.F.R. Part 1614 in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.