05980029
09-22-1999
John W. Dilday, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
John W. Dilday v. United States Postal Service
05980029
September 22, 1999
John W. Dilday, )
Appellant, )
) Request No. 05980029
v. ) Appeal No. 01973158
) Agency No. 4G-754-1259-95
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
)
GRANTING OF REQUEST FOR RECONSIDERATION
INTRODUCTION
On October 3, 1997, John W. Dilday (the appellant) timely initiated a
request to the Equal Employment Opportunity Commission (the Commission)
to reconsider the decision in John W. Dilday v. Marvin T. Runyon,
Jr., Postmaster General, U.S. Postal Service, EEOC Appeal No. 01973158
(September 25, 1997). EEOC regulations provide that the commissioners
may, in their discretion, reconsider any previous Commission decision. 29
C.F.R. �1614.407(a). The party requesting reconsideration must submit
written argument or evidence which tends to establish one or more of
the following three criteria: new and material evidence is available
that was not readily available when the previous decision was issued,
29 C.F.R. �1614.407(c)(1); the previous decision involved an erroneous
interpretation of law, regulation, or material fact, or a misapplication
of established policy, 29 C.F.R. �1614.407(c)(2); or the decision is of
such exceptional nature as to have substantial precedential implications,
29 C.F.R. �1614.407(c)(3). For the reasons set forth below, appellant's
request is granted.
ISSUE PRESENTED
The issue presented is whether the previous decision properly dismissed
appellant's appeal on the basis that the appeal was untimely filed.
BACKGROUND
Appellant filed an EEO complaint on June 26, 1995, alleging that he had
been discriminated against on the basis of disability (impaired left
arm and leg). On May 1, 1995, his schedule was reduced from eight to
three hours a day and then on June 22, 1995, he was "put off the clock,"
i.e., no longer scheduled for any work time. He was also denied a light
duty assignment. After an investigation by the agency, the appellant
requested a hearing by an EEOC Administrative Judge (AJ), who found
in appellant's favor. The agency adopted the decision of the AJ and
implemented a modified version of the AJ's recommended corrective action.
In the Final Agency Decision (FAD) dated June 20, 1996, the agency stated
that it would:
1) immediately bring appellant back to work in a capacity consistent
with his doctor's restrictions and his hours would be equitable with
the others in the station in a light-duty status;
2) pay appellant "retroactive pay, consistent with the number of hours
other light-duty employees received, from May 1, 1995, through the date
[he is] placed back in a work status, with interest, less any amount
[he] received from any other source;" and,
3) post a notice for 90 days, stating that persons with disabilities
shall be accommodated whenever to do so "would not endanger the health or
safety of that person or others or would not result in an undue hardship
to the agency."
The amount of back pay due the appellant, number 2 in the FAD, became
a point of contention between the appellant and the agency, and the
appellant alleged that the agency had not complied with the FAD. After a
series of communications with agency officials, the appellant filed an
appeal with the Commission, EEOC Appeal No. 01973158, on March 3, 1997.
In his appeal, he asked that the Commission "determine the truth" in
reference to the amount of back pay he was owed. The previous decision
dismissed the appeal for untimeliness, in that it had not been filed
within 30 days of the FAD. Appellant, however, had appealed within 30
days of the official letter he received from the agency, dated February
21, 1997, which denied that the agency had not complied with the FAD,
and stated that appellant had been paid already or was going to receive
shortly any amount that he was due. The letter contained appeal rights
to the Commission.
In his Request to Reconsider (RTR), appellant argued that the previous
decision overlooked the real issue of his appeal. He argued that he was
not appealing the decision in the FAD because that decision was favorable
to him. Rather, he wanted the Commission's help in resolving the issue
of how much back pay was due to him.
ANALYSIS AND FINDINGS
In order to merit the reconsideration of a prior Commission decision, the
requesting party must submit written argument or evidence which tends to
establish that at least one of the criteria of 29 C.F.R. �1614.407(c) is
met. The Commission's scope of review on a request for reconsideration is
narrow. Lopez v. Department of the Air Force, EEOC Request No. 05890749
(September 28, 1989). An RTR is not merely a form of a second appeal.
Regensberg v. U.S. Postal Service, EEOC Request No. 05900850 (September
7, 1990). Instead, it is an opportunity to submit newly discovered
evidence, not previously available; to establish substantive error in
a previous decision; or to explain why the previous decision will have
effects beyond the case at hand. Lyke v. U.S. Postal Service, EEOC
Request No. 05900769 (September 27, 1990).
After a careful review of the record, the Commission finds that
appellant's RTR meets the regulatory criteria of 29 C.F.R. �1614.407(c),
and that appellant's request should be granted. We find that it was an
error for the previous decision to dismiss the appellant's appeal on the
basis of untimeliness. Appellant was not appealing the agency's FAD,
dated June 20, 1996, but rather was appealing the agency's conclusion
that it had fully complied with the corrective action in the FAD,
as communicated by a letter dated February 21, 1997. EEOC Regulation
29 C.F.R. �1614.504(a) provides that a final agency decision that has
not been the subject of an appeal or civil action shall be binding
on the agency. That section further provides that if the complainant
believes that the agency has failed to comply with the terms of a final
decision, the complainant shall notify the Director of Equal Employment
Opportunity of the alleged noncompliance with the final decision within
30 days of when the complainant knew or should have known of the alleged
noncompliance. 29 C.F.R. �1614.504(a). The agency must respond to
the complainant, in writing, and if the complainant is not satisfied
with the agency's attempt to resolve the matter, the complainant may
appeal to the Commission for a determination as to whether the agency
has complied with the terms of the final decision, within 30 days.
29 C.F.R. �1614.504(b). Appellant complied with the regulatory time
frame for appeal and asked for specific implementation of the agreement.
We now turn to an analysis of the substance of appellant's appeal. In his
original appeal and in his RTR, appellant submitted documentation that
he argued substantiated his claim that the agency owed him more hours
than it paid him for.<1> According to the terms of the FAD, appellant
was to receive "retroactive pay, consistent with the number of hours
other light-duty employees received, from May 1, 1995, through the date
[he is] placed back in a work status, with interest, less any amount [he]
received from any other source." The documentation included an e-mail
sent from management officials to the Labor Relations Department which
specified that one full time light duty employee (LD-1) worked during the
period of May 1, 1995 through July, 9, 1996, the date appellant returned
to work. LD-1 worked 2317 work hours, of which 149 were overtime hours.
The e-mail also specified that appellant worked 149 hours during the
same period. By those figures appellant should have received 2019 hours
of straight time pay and 149 hours of overtime pay.
Appellant also submitted: 1) copies of some of his correspondence with
the Senior EEO Complaints Processing Specialist; 2) the agency decision
which concluded that it was in full compliance with the FAD; 3) copies
of his pay stubs for the pay periods he worked during the May 1, 1995
through July 9, 1996 time frame; 4) copies of PS Form 8039, which appears
to be the form submitted to the Minneapolis Postal Data Center requesting
the payment for appellant; and 5) a copy of a spreadsheet which seems
to show, by pay period, how much the Postal Data Center calculated he
should have been paid, and which has in appellant's handwriting notes
about where the data is incorrect (it is unclear if the spreadsheet was
generated by the Postal Data Center or by the appellant).
Appellant claims that he was underpaid by 144.47 hours of straight
time and 26.51 hours of overtime. Part of the dispute centers on
the inclusion of holiday leave hours in the agency's calculations.
Appellant also included in the record a copy of the provision covering
holiday pay in the national agreement between the union and the agency
to show that he should have been paid for those hours as well.
We find that there is inadequate evidence in the record to make a
determination as to the actual hours appellant should have been paid
for, compared to what he actually was paid for. Without specific
documentation showing precisely the number of hours LD-1 worked and
was paid for, including the number of holiday hours, we are unable to
resolve the dispute between the appellant and the agency. Therefore,
we are ordering that the agency conduct a supplemental investigation
for the purpose of gathering evidence designed to show the number of
hours appellant is entitled to be paid for. That investigation should
include documentation of the number of hours LD-1 was paid for, whether
those hours are straight, overtime, holiday, or otherwise, and exactly
the formula the agency used to calculate what was owed to appellant,
with a full explanation of how the number was arrived at.
CONCLUSION
After a review of appellant's request for reconsideration, the previous
decision, and the entire record, the Commission finds that appellant's
request satisfies the criteria of 29 C.F.R. �1614.407(c), and it
is the decision of the Commission to GRANT the appellant's request.
The decision of the Commission in EEOC Appeal No. 01973158 is REVERSED,
and the agency is ordered to conduct a supplemental investigation as
specified in this decision and the order below. There is no further right
of administrative appeal from that portion of our decision pertaining to
the timeliness of appellant's appeal of the agency's decision regarding
its compliance with the FAD.
ORDER
The agency is ordered to conduct a supplemental investigation in order
to provide detailed information on how the amount paid to appellant
was derived. The information should include: copies of the time sheets
and/or pay stubs showing the amount of hours worked by LD-1 for the
period of May 1, 1995 through July 9, 1996; copies of any time sheets
and/or pay stubs of appellant for the same time period; copies of the
sheets actually submitted to the Minneapolis Postal Data Center that
requested payment to appellant; and a copy of the payment calculation
performed by the Minneapolis Postal Data Center that corresponds to the
payment sent appellant, showing any adjustments or deductions made by
the Center. A copy of the materials obtained during the investigation
and a document showing the derivation of the amount of back pay should be
sent to appellant within 90 days of the date this decision becomes final.
The appellant shall have an opportunity to respond to the agency's
submission of the above information within 15 days. Both parties are
encouraged to work in good faith towards a resolution of the amount owed
appellant.
The agency will issue a new FAD regarding the amount due to the appellant,
with the appropriate rights, within 15 days after the appellant's response
to the agency's investigation.
A copy of the new FAD, copies of the supporting documentation from the
investigation, and the document showing the calculation of the back pay,
as ordered above, must be sent to the Compliance Officer as referenced
below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0595)
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 appellant. If the agency does not comply with the Commission's
order, the appellant may petition the Commission for enforcement of
the order. 29 C.F.R. �1614.503 (a). The appellant 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. �� 1614.408, 1614.409, and 1614.503 (g). Alternatively,
the appellant 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. �� 1614.408 and 1614.409. 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
appellant files a civil action, the administrative processing of the
complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. �1614.410.
STATEMENT OF RIGHTS ON REQUEST FOR RECONSIDERATION
RECONSIDERATION (M0795), modified
With regard to that portion of our decision pertaining to the merits of
appellant's appeal, the Commission may, in its discretion, reconsider its
determination if the appellant or the agency submits a written request
containing arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION (R0993)
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. It is the position of the Commission that 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. You should be aware, however, that courts in some
jurisdictions have interpreted the Civil Rights Act of 1991 in a manner
suggesting that a civil action must be filed WITHIN THIRTY (30) CALENDAR
DAYS from the date that you receive this decision. To ensure that your
civil action is considered timely, you are advised to file it WITHIN
THIRTY (30) CALENDAR DAYS from the date that you receive this decision
or to consult an attorney concerning the applicable time period in the
jurisdiction in which your action would be filed. 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 (Z1092)
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:
Sept. 22, 1999
______________ __________________________________
DATE Frances M. Hart
Executive Officer
1 There is no response in the record from the agency regarding his request
for reconsideration, and no documentation submitted by the agency to counter
that submitted by appellant.