0520090181
02-11-2009
Jone Jye Yau, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Jone Jye Yau,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Request No. 0520090181
Appeal No. 0720060087
Hearing No. 340-2005-00210X
Agency No. 4F913020403
DENIAL
Complainant timely requested reconsideration of the decision in Jone Jye
Yau v. United States Postal Service, EEOC Appeal No. 0720060087 (October
29, 2008). EEOC regulations provide that the Commission may, in its
discretion, grant a request to reconsider any previous Commission decision
where the requesting party demonstrates 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. See 29 C.F.R. � 1614.405(b).
After reconsidering the previous decision and the entire record, the
Commission finds that the request fails to meet the criteria of 29
C.F.R. � 1614.405(b), and it is the decision of the Commission to deny
the request.1 The decision in EEOC Appeal No. 0720060087 remains the
Commission's final decision. There is no further right of administrative
appeal on the decision of the Commission on this request.
ORDER
The agency is ordered to take the following remedial action:
(1) Within thirty (30) calendar days of the date this decision becomes
final, the agency shall reinstate complainant to the position of Mail
Processing Clerk, PS-5, or a substantially equivalent position.
(2) Within thirty (30) calendar days of the date this decision becomes
final, the agency shall remove the May 8 and May 30, 2003 suspensions and
October 8, 2003, notice of removal from complainant's official personnel
file.
(3) The agency shall provide a minimum of eight (8) hours of remedial
EEO training to all managers and supervisors located at the Burbank,
California facility.
(4) The agency shall consider taking appropriate disciplinary action
against all responsible management officials still employed by the
agency. The Commission does not consider training to be disciplinary
action. The agency shall report its decision to the compliance officer. If
the agency decides to take disciplinary action, it shall identify the
action taken. If the agency decides not to take disciplinary action,
it shall set forth the reason(s) for its decision not to impose
discipline. If any of the responsible management officials have left
the agency's employ, the agency shall furnish documentation of their
departure date(s).
(5) The agency shall post a notice in accordance with the paragraph
below.
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 verifying
that the corrective action has been implemented.
POSTING ORDER (G0900)
The agency is ordered to post at its Burbank, California facility 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 (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 (K1208)
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 77960, Washington,
DC 20013. 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.
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (Q0408)
This decision affirms the agency's final decision/action in part, but it
also requires the agency to continue its administrative processing of a
portion of your complaint. 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 on both that portion
of your complaint which the Commission has affirmed and that portion
of the complaint which has been remanded for continued administrative
processing. 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 (Z1008)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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 with
the Court 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
February 11, 2009
Date
1 We note that complainant asserted on appeal and again in his request for
reconsideration that the agency's final order was untimely, and therefore
the AJ's decision should become the final decision. In accordance with
29 C.F.R. 1614.110 (a), when an AJ has issued a decision, the agency
shall issue a final order within 40 days of receipt of the hearing
file and the administrative judge's decision, and if the agency is not
fully adopting the AJ's decision, it shall simultaneously file an appeal
with the Commission. The record reveals that the agency received the
AJ's decision on July 17, 2006, and issued a final order on August 25,
2006 which was 39 days after it received the AJ's decision. Therefore,
the agency's final order was timely.
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0520090181
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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0520090181