01a41076
07-07-2005
Junghye Choi, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Pacific Area), Agency.
Junghye Choi v. United States Postal Service
01A41076
July 7, 2005
.
Junghye Choi,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Pacific Area),
Agency.
Appeal No. 01A41076
Agency Nos. 4F-907�0144-98, 4F-907-0045-00
Hearing No. 340-99-3485X
DECISION
On November 20, 2004, complainant filed an appeal claiming that the
agency failed to comply with its final action finding discrimination.
The record reveals that complainant filed a complaint (complainant
no. 4F-907�0144-98) on July 29, 1998, alleging that she was discriminated
against on the bases of race (Asian), national origin (Korean), disability
and in reprisal for previous EEO activity when on January 8, 1998, and
continuing thereafter, her request for light duty was denied in violation
of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42
U.S.C. � 2000e et seq., and Section 501 of the Rehabilitation Act of 1973
(Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq. On January 4,
2000, complainant filed a second complaint (complaint no. 4F-907-0045-00)
alleging that she was discriminated against on the basis of physical
disability and reprisal when management refused to hold her level 6 bid
position open until her return from an on-the-job injury, her medical
benefits were canceled and her grade was reduced in violation of Title
VII and the Rehabilitation Act .
An EEOC Administrative Judge (AJ) consolidated the complaints and
issued a decision on July 23, 2003, finding discrimination regarding
complainant no. 4F-907�0144-98 based on physical disability for the
agency's failure to accommodate complainant's disability on January 8,
1998, and continuing. The AJ found no discrimination on the bases of
race, national origin, physical disability or in reprisal for previous
EEO activity. With respect to complaint no. 4F-907-0045-00, the AJ found
no discrimination on the basis of physical disability or in reprisal
for prior EEO activity. The AJ's decision ordered the agency to:
1. Pay the complainant all pay and benefits (including, but
not limited to, sick and annual leave, health and life insurance,
retirement contributions) she would have received had she been reasonably
accommodated on January 8, 1998, through her reassignment to the position
of Lobby Director on or about April of 2001. The agency was order to pay
complainant all overtime she could reasonably have been expected to earn
between the time she was denied reasonable accommodations on January 8,
1998, and her reassignment to the position of Lobby Director.
2. The agency was ordered to pay complainant $80,000.00 in non-pecuniary
damages, $26,000.00 in future pecuniary expenses and $500.00 for
out-of-pocket expenses.
3. The agency was ordered to prominently post at the Venice Post Office,
a notice of the finding of discrimination pursuant to the decision.
4. The agency was ordered to provide EEO training to the named
discriminating officials regardless of whether any such individual
occupied the same position held at the time of the events in issue.
On appeal, complainant contends that the agency disregarded the AJ
decision and failed to issue a final order within the 40-day time frame
as required by 29 C.F.R. �1614.110(a). The Commission finds that because
the AJ's decision became the agency's final order, there is no issue
of non-compliance with regard to the agency's failure to issue a final
order within the 40-day time frame after issuance of the AJ's decision
making the effective date of the final order September 1, 2003.
Complainant is not challenging the findings of no discrimination or
the remedies awarded by the AJ; rather, complainant is only claiming
that the agency failed to comply with the remedies ordered by the AJ.
On August 10, 2004, complainant received separate checks from the agency
in the amount of $106,000.00 and for $500.00. The agency posted a notice
on December 21, 2004, stating that the EEOC had found discrimination
under Title VII. The record reveals that the Postmaster for the Venice
Post Office received a two hour training class entitled, �Reasonable
Accommodation, An Interactive Process.�
The Commission finds that the agency complied with the portion of the
remedy ordered with respect to the compensatory damages and the training
required of the named agency officials.<1> There is no evidence showing
that complainant was provided with the back pay and benefits (including,
but not limited to, sick and annual leave, health and life insurance,
retirement contributions) that she would have received from January 8,
1998, through to her reassignment as a Lobby Director on or about April
of 2001. Further, there is no documentation showing the exact date
in April of 2001, that she began work as a Lobby Director. Aside from
a statement from complainant's supervisor regarding the amount of time
complainant could have worked overtime, there is no documentation showing
that complainant was paid overtime pay for the period in question.
In addition, the posting notice incorrectly cited Title VII instead of
the Rehabilitation Act as the law that was violated.
The Commission finds that the agency has not established that it is in
full compliance with the its final action. The matter is REMANDED to
the agency to take appropriate action in accordance with the ORDER below.
ORDER
Within thirty (30) calendar days of the date this decision becomes final,
the agency is ORDERED to take the following actions:
The agency shall fully provide the relief ordered in the AJ's decision
which became its final action on September 1, 2003, ensuring that
complainant is paid all pay and benefits (including, but not limited
to, sick and annual leave, health and life insurance, retirement
contributions) that she would have received from January 8, 1998, through
her reassignment as a Lobby Director on or about April of 2001. Further,
the agency shall pay complainant all overtime she could reasonably have
been expected to earn between January 8, 1998, to her reassignment as
Lobby Director on or about April of 2001.
The agency must provide the Compliance Officer as referenced below with
sufficient documentation showing the date complainant began work as a
Lobby Director and all pay, benefits and overtime she was due and paid.
POSTING ORDER (G0900)
The agency is ordered to post at its Venice Post Office in Venice,
California 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 (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 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.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
The Commission may, in its discretion, reconsider the decision in this
case if the complainant or the agency submits a written request containing
arguments or evidence which tend to establish 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.
Requests to reconsider, with supporting statement or brief, must be filed
with the Office of Federal Operations (OFO) within thirty (30) calendar
days of receipt of this decision or within twenty (20) calendar days of
receipt of another party's timely request for reconsideration. See 29
C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for
29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999). All requests
and arguments must 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 timely filed if it is received by
mail within five days of the expiration of the applicable filing period.
See 29 C.F.R. � 1614.604. The request or opposition must also include
proof of service on the other party.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely, unless extenuating circumstances
prevented the timely filing of the request. 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).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S0900)
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. If you
file a request to reconsider and also file a civil action, filing a civil
action will terminate the administrative processing of your complaint.
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:
July 7, 2005
______________________________ __________________
Carlton M. Hadden, Director Date
Office of Federal Operations
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
An Agency of the United States Government
This Notice is posted pursuant to an Order by the United States
Equal Employment Opportunity Commission dated_____________ which
found that a violation of Section 501 of the Rehabilitation Act of
1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq., has
occurred at the Venice Post Office in Venice, California (hereinafter,
the facility).
Federal law requires that there be no discrimination against any
employee or applicant for employment because of the person's RACE,
COLOR, RELIGION, SEX, NATIONAL ORIGIN, AGE, or DISABILITY with respect
to hiring, firing, promotion, compensation, or other terms, conditions
or privileges of employment.
The facility supports and will comply with such Federal law and will
not take action against individuals because they have exercised their
rights under law.
The facility was found to have unlawfully discriminated against
the individual in question on the basis of disability, when she
was not provided with a reasonable accommodation. The agency has
remedied the discrimination by paying back pay, benefits and overtime,
providing proven compensatory damages and costs, and providing relevant
agency officials with EEO training. The facility will ensure that
officials responsible for personnel actions and terms and conditions
of employment will abide by the requirements of the Federal equal
employment opportunity laws.
The facility will not in any manner restrain, interfere, coerce, or
retaliate against any individual who exercises his or her right to
oppose practices made unlawful by, or who participates in proceedings
pursuant to, Federal equal employment opportunity law.
____________________
Date Posted: _____________________
Posting Expires: _________________
29 C.F.R. Part 1614
1 Complainant names only the Postmaster in her complaint as the agency
official who denied her an accommodation.