Donna L. Elmer, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionMay 5, 2009
0120090778 (E.E.O.C. May. 5, 2009)

0120090778

05-05-2009

Donna L. Elmer, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.


Donna L. Elmer,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service,

Agency.

Appeal No. 0120090778

Hearing No. 443-2007-00034X

Agency No. 1J-536-0009-06

DECISION

On December 1, 2008, in accordance with EEOC Regulations, complainant

filed an appeal claiming that the agency failed to comply with its'

final order dated July 28, 2008.

Under 29 C.F.R. � 1614.504, if a complainant believes that the agency

has failed to comply with the terms of a final action, she shall notify

the EEO Director in writing of the alleged noncompliance within thirty

days of when she knew or should have known of the alleged noncompliance.

The regulation provides that the agency shall resolve the matter and

respond to complainant in writing. If the agency does not respond to the

complainant or she is not satisfied with the agency's attempt to resolve

the matter, she may appeal to the Commission for a determination as to

whether the agency has complied with the final action. The appeal is

deemed timely and is accepted pursuant to 29 C.F.R. � 1614.405(a).

On April 1, 2008, an EEOC Administrative Judge (AJ) issued a decision

finding that complainant, as well as three other employees,1 was a

victim of unlawful employment discrimination on the basis of disability

when they were repeatedly bypassed for overtime opportunities.2 The AJ

ordered that the complainants be compensated for overtime in the amount

they would have worked absent the agency's discriminatory refusal to make

an individualized assessment of each complainant's capabilities and the

work that would have been performed. Because the complainants were not

qualified to perform duties on all the lost overtime opportunities and

they may have been compensated by the grievance process, the AJ ordered

the agency to calculate back pay based on 25% of the amount of hours

each complainant was bypassed from February 2006 to the present.3

On July 28, 2008, the agency issued a final action implementing the AJ's

decision. The agency agreed that disability discrimination regarding

the overtime assignments was established.

On appeal, complainant, through her attorney, contends that the agency

has failed to comply with its final action. Specifically, complainant

explains that it notified the agency in writing, on October 8, 2008,

that it was not using individualized assessments to determine overtime

eligibility as required by the AJ decision. According to the complainant,

the agency's October 31, 2008 reply failed to address her concerns.

Consequently, she filed the instant appeal.

As an initial matter, the Commission notes that neither party appealed

the final order. Therefore, we shall not review the AJ's findings

on liability. Instead, we will only address whether the agency has

complied with the final order.

The instant record appears to be incomplete. While the agency provided

extensive records regarding the pre-complaint, complaint, and hearing

stage, there is little documentation regarding what occurred after

the final order was issued in July 2008. Specifically, the only

document related to actions following the final order was a letter

from the agency's EEO office to the Human Resources Manager describing

the actions order by the AJ. The manager was notified to "undertake

compliance activity, promptly". We are unable to determine if the agency

has completed any of the actions ordered by the AJ; particularly, the

individual assessment of each complainant's lost overtime opportunities

and payment of 25% of those hours from February 2006 to the present.

Because the agency has not provided any evidence showing it has complied

with the back pay order, we REMAND this matter to the agency to take

corrective action in accordance with this decision and the ORDER below.

ORDER

The agency is ordered to take the following remedial action:

To the extent that it has not already done so, the agency shall issue

complainant a check for the back pay awarded in its July 28, 2008 final

action within forty-five (45) calendar days of the date this decision

becomes final. Specifically, the agency shall compensate complainant for

25% of the amount of hours of overtime for which she was bypassed from

February 2006 to present. The hours of overtime shall be determined

by the amount she would have worked absent the agency's discriminatory

refusal to make an individualized assessment of her capabilities and the

work that could be performed. Complainant shall cooperate in the agency's

efforts to compute the amount of back pay due and shall provide relevant

information requested by the agency. If there is a dispute regarding

the exact amount of back pay due, the agency shall issue complainant a

check for the undisputed amount and shall issue a final decision with

appeal rights to this Commission concerning its calculations of the

amount awarded.

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 verifying

that the corrective action has been implemented

IMPLEMENTATION OF THE COMMISSION'S DECISION (K1208)

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.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M1208)

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 77960,

Washington, DC 20013. 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 (R0408)

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 (Z1008)

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

May 5, 2009

__________________

Date

1 The instant case was consolidated for a hearing with complaints by

Jacqueline Childs, Bonnie Harper, and Bonnie Spencer. While the AJ

issued one decision, and the agency issued one final action, addressing

the complaints of all four employees, separate appeals were filed.

See Jacqueline Childs v. United States Postal Service, EEOC Appeal

No. 0120090777; Bonnie Harper v. United States Postal Service, EEOC

Appeal No. 0120090779; Bonnie Spencer v. United States Postal Service,

EEOC Appeal No. 0120090780.

2 Regarding the bases of age and sex, the AJ found the complainants

were not discriminatorily bypassed overtime opportunities. Further,

the AJ did not find that the complainants established discrimination

regarding work on holidays on any of the alleged bases.

3 Complainant was also awarded $2,000.00 in non-pecuniary damages, as

well as attorney's fees and costs. The AJ also ordered the agency to

provide EEO training on disability discrimination to all managers at

the facility. These matters are apparently not in dispute.

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0120090778

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

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0120090778