05991149
05-18-2000
James R. Swift Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, (S.E./S.W. Region), Agency.
James R. Swift v. United States Postal Service
05991149
May 18, 2000
James R. Swift )
Complainant, )
)
v. ) Request No. 05991149
) Appeal No. 01975658
William J. Henderson, ) Agency No. 1H374104395
Postmaster General, )
United States Postal Service, )
(S.E./S.W. Region), )
Agency. )
)
GRANT OF REQUEST FOR RECONSIDERATION
On September 20, 1999, the agency timely initiated a request to the Equal
Employment Opportunity Commission (EEOC or Commission) to reconsider
the decision in James R. Swift v. United States Postal Service, EEOC
Appeal No. 01975658 (August 6, 1999).<1> EEOC Regulations provide that
the Commissioners may, in their discretion, reconsider any previous
decision where the party demonstrates that: (1) the previous decision
involved a clearly erroneous interpretation of material fact or law;
or (2) the decision will have a substantial impact on the policies,
practices, or operation of the agency. 64 Fed.Reg. 37,644, 37,659 (1999)
(to be codified and hereinafter referred to as 29 C.F.R. � 1614.405(b)).
For the reasons set forth herein, the agency's request is granted.
The previous decision in this case, incorporated by reference herein,
found that the agency had discriminated against complainant based on
race and sex when he was nonselected for two positions for which he had
applied, Ad Hoc Confidential Secretary/Human Resources Assistant and
Ad Hoc Human Resources Associate. As relief for that discrimination,
the previous decision ordered, in part, that the agency "retroactively
promote [complainant] to the position of Human Resources Associate . . ."
In its request for reconsideration, the agency does not challenge the
finding of discrimination but points out that the positions for which
complainant was non-selected were detail assignments, not to exceed two
years in duration, and that the previous decision ordered that complainant
be promoted to a permanent position. The agency argues that by so doing,
the previous decision has placed complainant in a better position than
he would have been in had he not been discriminated against.
The agency's position is well taken. When discrimination is found,
the agency must provide the complainant with an equitable remedy
that constitutes full, make-whole relief to restore him or her to the
position he or she would have occupied absent the discrimination. See,
e.g., Franks v. Bowman Transportation Co., 424 U.S. 747, 764 (1976);
Adesanya v. U.S. Postal Service, EEOC Appeal No. 01933395 (July 21,
1994). Here, however, the previous decision, by ordering placement in
a permanent position, has afforded complainant more than full relief.
Accordingly, the agency will be ordered to compensate complainant as if
he had occupied the position for the two-year term of the appointment and
to determine whether, in the absence of discrimination, the appointment
would have been extended. See, e.g., McGee v. Department of the Army,
EEOC Appeal No. 01953709 (February 20, 1998).
Upon review of the agency's request for reconsideration, the previous
decision, and the entire record, the Commission finds that the agency's
request meets the criteria of 29 C.F.R. � 1614.405(b). Accordingly,
it is the decision of the Commission to GRANT the agency's request
for reconsideration. The decision in Appeal No. 01975658 is AFFIRMED
as MODIFIED in the Order of the Commission below. There is no further
right of administrative appeal from the decision of the Commission on
this request for reconsideration.
ORDER (D1199)
The agency is ORDERED to take the following remedial action:
The agency shall retroactively place complainant in the position of
Human Resources Associate in the Memphis, Tennessee area or if a Human
Resources Associates position is unavailable, then to a substantially
equivalent position in that area. The placement shall be effective from
the effective date of the selection for the Human Resources Associate
position for which complainant was nonselected and shall continue for
a period of two years. Complainant shall also be awarded back pay,
seniority and other employee benefits from the effective date of the
placement, along with any incurred and reasonable attorney's fees.
The agency shall determine whether and for how long it would have
extended complainant's two-year appointment had it not discriminated
against him. This determination shall be made by a comparative analysis
of the appointment terms of similarly situated Human Resources Associates.
The agency shall determine the appropriate amount of back pay (with
interest, if applicable) and other benefits due complainant, 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."
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 backpay and other benefits due complainant,
including evidence that the corrective action has been implemented.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K1199)
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 64
Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter
referred to as 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 64 Fed. Reg. 37,644, 37,659 (1999)
(to be codified and hereinafter referred to as 29 C.F.R. � 1614.409).
POSTING ORDER (G1092)
The agency is ORDERED to post at its Memphis, Tennessee Bulk Mail
Center copies of the attached notice. Copies of the notice, after being
signed by the agency's duly authorized representative, shall be posted
by the agency within thirty (30) calendar days of the date this decision
becomes final, and shall remain posted for sixty (60) consecutive days,
in conspicuous places, including all places where notices to employees are
customarily posted. The agency shall take reasonable steps to ensure that
said notices are not altered, defaced, or covered by any other material.
The original signed notice is to be submitted to the Compliance Officer
at the address cited in the paragraph entitled "Implementation of the
Commission's Decision," within ten (10) calendar days of the expiration
of the posting period.
ATTORNEY'S FEES (H1199)
If complainant has been represented by an attorney (as defined by 64
Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter
referred to as 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.
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (P0400)
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:
May 18, 2000
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
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 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present request. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.