04a40030
03-03-2005
James R. Hamilton, Petitioner, v. John E. Potter, Postmaster General, United States Postal Service (Southeast Area), Agency.
James R. Hamilton v. United States Postal Service
04A40030
March 3, 2005
.
James R. Hamilton,
Petitioner,
v.
John E. Potter,
Postmaster General,
United States Postal Service
(Southeast Area),
Agency.
Petition No. 04A40030
Appeal No. 01A30899
Agency Nos. 4G-752-0024-99 and 4G-752-0218-00
Hearing No. 310-02-5693X
DECISION ON A PETITION FOR ENFORCEMENT
On July 26, 2004, the Equal Employment Opportunity Commission (EEOC
or Commission) docketed a petition for enforcement to examine the
enforcement of an order set forth in James R. Hamilton v. United States
Postal Service, EEOC Appeal No. 01A30899 (March 4, 2004). This petition
for enforcement is accepted by the Commission pursuant to 29 C.F.R. �
1614.503.
Petitioner filed a complaint in which he alleged, in pertinent part,
that the agency discriminated against him on the bases of race (Asian),
national origin (Indian), and age (over 40 years old) when it terminated
him on September 4, 1998. In a decision dated September 30, 2002, an EEOC
Administrative Judge (AJ) found that the agency discriminated against
complainant on the bases of age and national origin when it terminated
him. The AJ awarded complainant $30,000.00 in back pay with interest and
$5,000.00 for non-pecuniary compensatory damages.<1> The agency fully
implemented the AJ's decision. Complainant appealed the portion of the
final order pertaining to damages. In EEOC Appeal No. 01A30899, the
Commission ordered the agency to undertake the following remedial actions:
In addition to reinstating complainant to a Clerk position, the agency
shall pay complainant $10,000.00 in non-pecuniary compensatory damages.
The agency shall pay complainant $53,600.00 in back pay plus interest,
and any other benefits due for the period complainant was separated
from the agency.
The Commission also ordered the agency to post a notice at its Mesquite,
Texas facility regarding the finding of discrimination. The matter was
assigned to a Compliance Officer and docketed as Compliance No. 06A40521
on March 4, 2004.
Petitioner contends that the agency failed to pay interest on the back
pay award, deducted 25% from back pay for federal taxes instead of the
correct 6%, and failed to post the notice at the Mesquite, Texas post
office. Petitioner further alleged that the agency failed to provide him
with all benefits due for the period he was separated from the agency.
Petitioner maintained the following with respect to the benefits due
to him:
As of October 10, 1998, petitioner should be given the same full-time
regular status given to employees hired with him on March 9, 1998.
Petitioner should also be given all the benefits given regular status
employees, including a guaranteed 40-hour work week;
Petitioner's per hour pay should be the equivalent paid to employees
who were hired with him on March 9, 1998;
Petitioner's seniority should be the same as employees hired with him
on March 9, 1998;
Petitioner should be given the same annual leave and sick leave given
to employees who were hired with him on March 9, 1998 in the Plano,
Texas Post Office; and
Petitioner should be given leave in lieu of 60 paid federal holidays
other employees were given after they were given regular status (October
10, 1998) until the date he was reinstated.
Interest on Back Pay
The record reveals that pursuant to the AJ's order, the agency initially
paid $30,000.00 in interest and back pay. After our decision in Appeal
No. 01A30899, the agency owed petitioner $23,600.00 in back pay plus
interest. Petitioner alleges that the agency has not paid interest on
the second installment of the back pay award. In response, the agency
maintains that it has paid him all interest due on the back pay award.
The record contains a copy of a report on back pay computations,
demonstrating that petitioner was further entitled to $11,013.68 in
interest on the second back pay installment. The record also contains
a copy of a check dated September 8, 2004 from the agency to petitioner
for $11,013.68. We find that the agency has paid petitioner the ordered
amount of back pay and interest.
Tax Deductions
Petitioner maintains that �the agency deducted 25% toward Federal Taxes
instead of about 6% from the amount of back pay.� The agency responds
that this deduction was based upon the calculations of its �sophisticated
computer software� at the Accounting Service Center in Minnesota.
Upon review of this matter, we find that petitioner has presented no
evidence that the tax deductions were erroneous. Consequently, we find
that the agency provided petitioner with the proper deductions on his
back pay award.
Posting of Notice
Petitioner maintains that the agency failed to post the discrimination
notice in the Mesquite Post Office. In response, the agency maintained
that it originally posted a notice in the Plano, Texas Post Office because
that is where the discrimination actually occurred, but also additionally
posted a notice in the Mesquite Post Office. The record contains a
copy of the notice posted in both the Plano and Mesquite Post Offices.
We find that the agency has complied with its posting obligations.
Other Benefits
Petitioner maintains that the agency should make him a full-time regular
employee effective October 10, 1998, with attendant benefits because
the other employees hired with him in May 1998 became regular employees
on that date. Petitioner was hired with the agency on May 9, 1998
as a part-time flexible city letter carrier in the Plano Post Office.
Prior to the AJ's decision, the agency responds that petitioner signed
a settlement agreement which reinstated him as a part-time flexible
clerk in the Mesquite Post Office. The agency contends that complainant
is therefore subject to the applicable provisions of the Clerk craft
collective bargaining agreement based on his entering into a settlement
agreement which transferred him into a different craft and assigned him to
a different facility. �All of the �comparison employees' the petitioner
identifies are City Letter Carriers who work at Plano and were converted
to full-time based on the application of another collective bargaining
agreement and the operational characteristics there,� the agency contends.
Upon review of this matter, we first note that ordinarily the proper EEO
remedy in this case would be to restore petitioner to the same position
he occupied at the time he was terminated, i.e., as a letter carrier at
the Plano Post Office. However, after filing the instant EEO complaint,
the parties voluntarily entered into a grievance settlement agreement
in which petitioner was reinstated as a part-time flexible clerk at the
Mesquite Post Office.<2> Subsequent to our finding of discrimination,
neither party has challenged petitioner's placement into the clerk
position in Mesquite. Therefore, we find that petitioner agreed to
be governed by the collective bargaining agreement's terms related to
his clerk position in Mesquite and cannot circumvent its provisions in
order to receive benefits not associated with his current clerk position.
Article 7 of the governing collective bargaining position states that as
a part-time flexible clerk, petitioner shall be assigned to a regular
schedule of less than 40 hours of work per week and must demonstrate
the need for converting to a full-time position by working a particular
number of work hours over a six-month period. We find that our order
in Appeal No. 01A30899 granting petitioner �other benefits due� does not
entitle petitioner to full-time regular status with a 40-hour work week,
a full-time pay rate, or any other benefit granted to converted employees
who were hired with petitioner in March 1998 because petitioner is now
in a different craft and therefore entitled to only to those benefits
associated with his clerk position. Moreover, we conclude that because
petitioner voluntarily changed crafts, he is not entitled to seniority
based on his previous carrier position. Also, we deny petitioner's
request that he receive leave for federal holidays because in awarding
petitioner back pay, he has been fully compensated for these holidays.
Petitioner further argues that he should be given the �equivalent of
annual leave and sick leave given to employees who were hired with the
petitioner on 05/09/1998" in the Plano Post Office. While we find that
petitioner is not entitled to receive the same leave employees converted
to full-time status receive, we find that he is entitled to the leave lost
from the date of his termination (September 4, 1998) until the date he
was reinstated to employment with the agency pursuant to the terms of the
settlement agreement (December 18, 1999). The record contains no evidence
demonstrating that the agency has complied with our order by restoring
the appropriate leave to petitioner. Accordingly, the Commission directs
the agency to provide petitioner with the appropriate leave.
Litigation Costs
Although petitioner is not represented by an attorney, he requests
reimbursement for $1,887.00 in personal expenses related to his EEO
claim, including the costs of copying, mailing, travel, witnesses, and
�entertainment of advisors.� Petitioner had the opportunity to request
these costs with the AJ or on appeal to the Commission, but failed to
do so. Therefore, we find that petitioner is not entitled to receive
reimbursement for these claimed costs.
Conclusion
The Commission finds that the agency has not fully complied with the
Commission's order in James R. Hamilton v. United States Postal Service,
EEOC Appeal No. 01A30899, and the Petition for Enforcement is GRANTED.
The agency shall implement the order of relief set forth below.
ORDER
To the extent it has not already done so, within 30 calendar days of the
date this decision becomes final, the agency shall credit petitioner for
annual and sick leave from the date of his termination (September 4,
1998) until the date he was reinstated to employment with the agency
pursuant to the terms of the settlement agreement (December 18, 1999).
The agency shall provide documentation clearly demonstrating its
compliance with this order.
The agency is further directed to submit a report of compliance, as
provided in the statement entitled "Implementation of the Commission's
Decision."
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
petitioner. If the agency does not comply with the Commission's order,
the petitioner may petition the Commission for enforcement of the order.
29 C.F.R. � 1614.503(a). The petitioner 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 petitioner 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 petitioner 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 (P0900)
This decision of the Commission is final, and there is no further right
of administrative appeal from the Commission's decision. 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.
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 3, 2005_________________
Date
1The AJ initially found that complainant was entitled to $53,600.00 in
back pay, but reduced the amount to $30,000.00 after finding complainant
failed to mitigate damages.
2In our previous decision, we did not disturb the parties' agreement to
transfer petitioner to the clerk craft and assign him to the Mesquite
facilty.