John W. Dilday, Appellant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionSep 22, 1999
05980029 (E.E.O.C. Sep. 22, 1999)

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.