01A11616
03-04-2003
Ernest C. Ortega, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Western Area), Agency.
Ernest C. Ortega v. United States Postal Service
01A11616
March 4, 2003
.
Ernest C. Ortega,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Western Area),
Agency.
Appeal No. 01A11616
Agency Nos. 4-E-800-0601-93, 4-E-800-1011-94, 4-E-800-1221-94,
4-E-800-1296-94
Hearing Nos. 320-97-8135X, 320-97-8136X, 320-98-8137X, 320-98-8174X
DECISION
On January 5, 2001, complainant filed an appeal in connection with a final
action issued by the agency on October 2, 2000, concerning complainant's
complaints of unlawful employment discrimination in violation of Title
VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. �
2000e et seq. In his complaints,<1> complainant claimed that he was
discriminated against on the bases of national origin (Mexican-American),
sex (male) and in retaliation for prior EEO activity when:
On January 23, 1993, complainant was not selected for either of two
EAS-21 Diversity positions; and
From approximately February 1994 through July 1994, complainant was
subjected to harassment in the form of not being allowed to return to
his original position of supervisor customer service, Tour II; accused
of lying; humiliated with regard to a work incident; relieved of duty
as an acting Manager of Customer Service at the
agency's Boulder Main Office; and, received two hang up phone calls from
the OIC Acting Postmaster.
The record reflects that complainant was hired by the agency in 1967,
and thereafter served in various positions with the agency. Beginning in
1985, complainant served as the agency's Affirmative Action Programs
Coordinator, and held that position until 1992. On or about October
16, 1992, complainant applied for two EAS-21 Diversity positions.
Effective January 23, 1993, two individuals were selected to fill
the positions. Complainant was not selected for either position.
Complainant retired from the agency in December 1999.
On August 21, 2000, following a hearing, the EEOC Administrative Judge
(AJ) issued a decision finding that complainant had been discriminated
against on the bases of sex, national origin, and reprisal when he
was not selected for either of the two EAS-21 Diversity positions.
The AJ also found, however, that complainant was not the victim
of unlawful harassment on any of the articulated bases. The AJ's
order directed the agency to take the following remedial actions: (1)
cease and desist from engaging in any further discriminatory actions;
(2) pay complainant's reasonable attorney's fees and costs; (3) take
appropriate actions to eliminate any lingering negative effects of the
discriminatory actions, including providing EEO sensitivity training to
the involved managers to better inform them of their duties under the law;
(4) pay for all compensatory damages that are directly attributable
to the agency's actions, including $35,000.00 dollars in order to
compensate complainant for the mental and emotional harm suffered; (5)
compensate complainant for all back pay, interest and benefits lost up
until the date of complainant's retirement and after that date shall
make all necessary adjustments to complainant's retirement annuity
which reflects his retroactive placement into the EAS-21 grade level;
(6) post a notice in an appropriate, conspicuous place, including all
places where notices to employees are customarily posted, as required
by the Commission's regulations, which shall indicate that the agency
has been found to have discriminated and further indicate what steps
it will take to see that such discrimination does not occur again.
In the agency's notice of final action (final order), dated October 2,
2000, the agency adopted the AJ's decision and granted the ordered remedy.
By letter to the agency's manager, EEO Compliance and Appeals, as well
as to the agency's Law Department-Western Area, dated November 14, 2000,
complainant notified the agency of alleged partial noncompliance with
its October 2, 2000 decision. On appeal, complainant states that while
the agency has paid him $35,000.00 in compensatory damages, as well as
reasonable attorney's fees and costs for the hearing, the agency has
not paid complainant back pay, interests and benefits due to him from
the January 23, 1993 retroactive promotion and did not recalculate or
pay complainant the amount due to him for his retirement annuity.
The record contains correspondence from the agency dated August 8,
2001, in which the agency addresses complainant's request for an 8.1%
promotional increase that was granted to the female selectee. The agency
states that complainant's salary history is being adjusted to match
what the
female selectee received as a percentage increase to her salary.
The agency then lists what it determines are complainant's �high three
salaries,� and estimates that complainant's annuity will increase by
about $880.00 per year. The agency states that it will begin making
the salary history adjustments on August 13, 2001. The record does not
contain any documents from the agency which follow-up on these issues.
By letter to the Commission dated August 28, 2001, complainant reiterates
that the agency has failed to calculate or timely pay him back pay,
interest and benefits in accordance with the agency's October 2, 2000
final order. Complainant requests that the Commission order the agency
to recompute his high three years of service and annuity to reflect the
8.1% pay increase, applying Employee and Labor Relations Manual (ELM)
directive 413.21(d) and the Placement Instructions for Field Placement
Offices and Placement Officials (PIFO) directive, Section (II)(A).
Complainant also requests that the Commission order the agency to pay
complainant $25,000.00 in back pay, as well as the remaining $1076.25
in attorney's fees that have accumulated due to the agency's alleged
noncompliance with its final order. Finally, complainant requests that
the Commission order the agency to produce the female selectee's pay
records and history in the Diversity position from January 23, 1993,
the date on which the promotion became effective, to December 31, 1999,
the date on which complainant states that he retired.
The record does not contain sufficient evidence for the Commission to
determine whether the agency complied with its final order by granting
complainant all back pay, interest and benefits lost up until the date
of complainant's retirement, as well as any necessary adjustments
to complainant's retirement annuity or additional attorney's fees.
Accordingly, we direct the agency to take action in accordance with
the order below, retroactive to January 23, 1993, the date on which
complainant's promotion to the EAS-21 Diversity position should have
been effective.
STATEMENT OF RIGHTS - ON APPEAL
ORDER (D0900)
The agency shall determine the appropriate amount of back pay (with
interest, if applicable) and other benefits due complainant, from January
23, 1993, through December 1999, pursuant to 29 C.F.R. � 1614.501, no
later than sixty (60) calendar days after the date this decision becomes
final. The complainant shall cooperate in the agency's efforts to compute
the amount of back pay and benefits due, and shall provide all relevant
information requested by the agency. If there is a dispute regarding the
exact amount of back pay and/or benefits, the agency shall issue a check
to the complainant for the undisputed amount within sixty (60) calendar
days of the date the agency determines the amount it believes to be due.
The complainant may petition for enforcement or clarification of the
amount in dispute. The petition for clarification or enforcement must
be filed with the Compliance Officer, at the address referenced in the
statement entitled "Implementation of the Commission's Decision."
Compliance will not be considered complete unless the agency sets for
its reasoning for each portion of corrective action granted, or not
granted to complainant, as it pertains both to Order (D0900) above,
as well as to the relief requested by complainant on appeal, which has
been described in the instant decision by the Commission. 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 of the agency's
calculation of back pay and other benefits due complainant, including
evidence that the corrective action has been implemented.
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 (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 (S0900)
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. 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
March 4, 2003
__________________
Date
1The Commission notes that there is some
discrepancy between the agency numbers on the agency's Notice of Final
Action and the AJ's decision. The February 7, 2003 letter from the agency
also indicates confusion between the Commission and the agency as to the
proper agency numbers. The Commission requests that the agency clarify
the agency numbers that have been assigned to this case.