0420110005_0120091550
03-11-2011
Dennis Smith, Petitioner, v. Patrick R. Donahoe, Postmaster General, United States Postal Service, (Southeast Area), Agency.
Dennis Smith,
Petitioner,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service,
(Southeast Area),
Agency.
Petition No. 0420110005
01200915501
Appeal No. 0120073870
Agency No. 1H-371-0007-07
DECISION ON A PETITION FOR ENFORCEMENT
On November 21, 2008, the Equal Employment Opportunity Commission
(EEOC or Commission) docketed a petition for enforcement to examine the
enforcement of an Order set forth in Dennis Smith v. U.S. Postal Service,
EEOC Appeal No. 0120073870 (July 23, 2008). The Commission accepts this
petition for enforcement pursuant to 29 C.F.R. � 1614.503.
ISSUE PRESENTED
The issue presented is whether the Agency has complied with the
Commission's Order in Smith v. U.S. Postal Service, Appeal No. 0120073870
(July 23, 2008).
BACKGROUND
The record reveals that the parties entered into a settlement agreement
on February 28, 2007, which provided, in pertinent part, that:
(1) Management will set up and send (Petitioner) to a functional
capacity evaluation with an orthopedic specialist, then it will be
forwarded to the Department of Labor/OWCP for their concurrence. The
appointment with the orthopedic specialist will be done within forty-five
(45) days from today's (2/28/07) date.
By letter to the agency dated May 14, 2007, Petitioner, a Custodial
Laborer, at the Agency's Nashville P&DC, alleged that the Agency breached
the settlement agreement as he had not been allowed to return to his
bid position. He maintained that he was confined solely to cleaning the
break room and was not permitted to leave that space. In its August 30,
2007, final decision (FAD), the Agency concluded that it did not breach
the agreement. The Commission however, found that the Agency had breach
the settlement agreement. Specifically, the record reflected that the
Agency scheduled Petitioner for examinations with an orthopedic specialist
on three dates in April 2007. The orthopedic specialist prepared a report
based upon the evaluations.
The Agency maintained that it had fulfilled the spirit of the agreement
by scheduling the examinations and assigning Petitioner work within
his medical restrictions. The explicit terms of the agreement however,
obligated the Agency to send a copy of the functional capacity evaluation
report to the Department of Labor. The Agency indicated that it could
not send a copy of the report to the OWCP because the OWCP did not
recognize reports from non-treating physicians. The Commission found that
if the OWCP only accepted reports from treating physicians as the Agency
maintained, the Agency should have scheduled Petitioner for an evaluation
by a treating physician. Notwithstanding, the Agency indicated that
it sent a copy of the report to the OWCP with a cover letter; however,
there was no evidence in the record to support this claim. Therefore,
under these circumstances, the Commission found that the Agency had
breached the agreement. Petitioner also requested compensatory damages as
a breach remedy. This request however, was denied because the Commission
could only order reinstatement of the underlying complaint or enforcement
of the agreement's terms to remedy a settlement breach. See 29 CF.R. �
1614.504(c).
The Commission reversed the Agency's final decision finding no breach
of the agreement and remanded this matter for further processing.
Specifically, the Commission ordered the Agency to take the following
remedial actions;
1. Within 30 calendar days after the date this decision becomes
final, the Agency shall send a copy of Complainant's functional capacity
evaluation report to the Department of Labor/OWCP.
2. In the event that the reports already prepared by the orthopedic
specialist are unacceptable for OWCP review, the Agency shall schedule
and pay for a new functional capacity evaluation with an orthopedic
specialist whose report OWCP will review.
Thereafter, by letter dated January 1, 2009, Petitioner alleged that the
Agency still confined him to work in the break room and was not honoring
his 40 pound weight restriction on his right shoulder. He maintained
that he had been locked in the break room since March 7, 2007, because
even though the Agency's doctor and the OWCP doctor had both indicated
that he could return to his bid position, management told him that he
would never be able to go back to the work room floor.
On May 29, 2009, Petitioner wrote that he had been cleared to resume full
duty but management would not honor the medical release. Therefore,
on June 16, 2009, he filed another EEO complaint alleging retaliation.
On July 24, 2009, Petitioner was told to report to work for his bid job.
On July 28, 2009, Petitioner gave his supervisor restrictions which
indicated that due to allergies he could not cut grass. Petitioner
maintains that the Agency refused to honor this restriction and required
him to submit doctor's notes which indicated that he could not cut the
grass on July 28, 2009, July 30, 2009, and July 31, 2009. On August 9,
2009, he was told to clock out because he would not cut the grass.
Petitioner contends that he has been subjected to retaliation.
He maintains that he has not been paid since August 4, 2009, and
asserts that he has no return date. Petitioner also maintained that the
retaliation that he has been subjected to stems from his EEO activity
and he contends he has been told to leave the Agency. 2
On November 21, 2008, Petitioner submitted the petition for enforcement
at issue. Petitioner contends that the Agency failed to comply with
the Commission's order in EEOC Case No. 0120073870.
ANALYSIS AND FINDINGS
The Commission's regulations provide that an aggrieved person may petition
for enforcement of a decision issued under its appellate jurisdiction.
29 C.F.R. � 1614.503(a). As noted above, the issue is whether the Agency
has fully complied with the Commission's prior order. Based upon our
review of this matter, the Commission finds that Petitioner is requesting
that the Agency honor his medical release and put him back to work on his
bid job. To that end, we find that there is no evidence in the record
which suggests that the Agency complied with the Commission's Order to
send a copy of Complainant's functional capacity evaluation report to
the OWCP. The record is also silent as to whether the named report was
found to be acceptable. Nor is there information about whether the Agency
had to schedule and pay for a new functional capacity evaluation with an
orthopedic specialist whose report OWCP would review. Petitioner asserts
that had the Agency complied with the Commission's Order he would have
been back to work by April 15, 2007. Based on the lack of evidence
regarding whether the Agency complied with the Commission's order, the
Commission grants the Petition for Enforcement. Accordingly, we find
that the Agency has not established that it is in compliance with our
order in EEOC Appeal No. 0120073870.3
CONCLUSION
The Commission finds the Agency has not shown that it has complied with
our previous Order set forth in EEOC Appeal No. 0120073870 and must
take additional steps to be in full compliance. The Agency is therefore
directed to comply with the Order below.
ORDER
The Agency is hereby ORDERED to take the following actions:
1. Within 30 calendar days after the date this decision becomes
final, the Agency shall send a copy of Complainant's functional capacity
evaluation report to the Department of Labor/OWCP.
2. In the event that the reports already prepared by the orthopedic
specialist are unacceptable for OWCP review, the Agency shall schedule
and pay for a new functional capacity evaluation with an orthopedic
specialist whose report OWCP will review.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0610)
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.
PETITIONER'S RIGHT TO FILE A CIVIL ACTION (R0610)
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 (Z0610)
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
_____3/11/11_____________
Date
1 The Commission administratively closes the record listed under docket
number 0120091550 because it was incorrectly docketed. Although the
Commission is closing 0120091550, we are addressing petitioner's concerns
under the new designation, EEOC Petition No. 0420110005. All future
correspondence regarding this matter should reference EEOC Petition
No. 0420110005.
2 On September 21, 2009, Petitioner filed another complaint (Agency case
no. 4H-370-0093-09) in which he alleged that the Agency again violated
the Rehabilitation Act when he was not allowed to work. Specifically,
Petitioner alleged that he was discriminated against based on disability
and retaliation when from May 29, 2005 through July 30, 2005,2 he
was not allowed to work. In its final decision, the Agency found that
the Petitioner failed to contact an EEO Counselor in a timely manner.
Therefore, the Agency dismissed the complaint pursuant to 29 C.F.R. �
1614.107(a)(2) for untimely counseling. Petitioner alleges that the
Agency incorrectly listed the dates as May 29, 2005 through July 30, 2005.
He insists that the dates should have been May 29, 2009, through July 30,
2009.
3 With regard to the other claims alleged by the Petitioner, the
Commission notes that he has filed several additional EEO complaints
regarding these issues. Therefore, the issues are not properly before
the Commission and will not be addressed.
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0420110005
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
6 0420110005
0120091550