04a40020
01-21-2005
K. D. Hughes, Petitioner, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
K. D. Hughes v. United States Postal Service
04A40020
January 21, 2005
.
K. D. Hughes,
Petitioner,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Petition No. 04A40020
Appeal No. 01996035
Agency No. 4E-852-1266-95
Hearing No. 350-97-8077X
DECISION ON A PETITION FOR ENFORCEMENT
On May 17, 2004, the Equal Employment Opportunity Commission (EEOC
or Commission) docketed a petition for enforcement to examine
the enforcement of an order set forth in K. D. Hughes v. United
States Postal Service, EEOC Appeal No. 01996035 (September 26, 2002).
This petition for enforcement is accepted by the Commission pursuant to
29 C.F.R. Sec. 1614.503. Petitioner alleged that the agency failed to
fully comply with the Commission's order with respect to backpay.
Petitioner filed a complaint in which she alleged that the agency
discriminated against her on the basis of disability (left shoulder
injury). A hearing was held before an EEOC Administrative Judge (AJ)
at which the AJ found that complainant was entitled to the protections of
the Rehabilitation Act and had improperly had her hours of work reduced
during the period from February 6, 1996 to August 1, 1997. The agency
declined to implement the AJ's decision and petitioner appealed to
the Commission. In EEOC Appeal No. 01996035, the Commission found
that the AJ had correctly decided the case and remanded the matter
to agency. In addition to other relief, the Commission ordered the
agency to calculate any backpay due to complainant and pay it to her.
The matter was assigned to a Compliance Officer and docketed as Compliance
No. 06A30121.
The agency determined that complainant was not entitled to any net backpay
because she had received payments from the Office of Workers Compensation
Programs (OWCP) for the period in question which exceeded the amount of
backpay she would have been due under the Commission's order. On August
25, 2003, petitioner submitted the petition for enforcement at issue here.
Petitioner contends that the agency's backpay calculation is defective
in several respects. First she contends that the agency's assumptions
about the number of hours she would have worked during the period from
February 6, 1996 to August 1, 1997 were mistaken. The agency assumed
that complainant would have worked 31.13 hours per week, basing its
calculation on the number of hours complainant worked in the period
immediately preceding February 6, 1996. Complainant argues that the
backpay calculation should be based on the 35.25 hour workweek that
had been the basis of OWCP's compensation award.
In our view, both parties are mistaken on this point. In his ruling
in this case, the AJ found that complainant would have worked 32 hours
per week during the period from February 6, 1996 to August 1, 1997 if
she had been afforded a reasonable accommodation. This finding was
affirmed on appeal and is now binding on both parties. The agency
will be ordered to recalculate its backpay determination based on the
assumption that complainant would have worked 32 hours per week during
the relevant period.
Complainant also argues that the agency erred in calculating the setoff to
which it was entitled because of the OWCP payments complainant received.
Those payments totaled $16,619.95 for the period from December 21,
1995 to August 1, 1997. According to complainant, the agency mistakenly
setoff the entire amount of the OWCP payments against her backpay award
despite the fact that the OWCP payments covered a longer period than
did the backpay award. Complainant's position is not well taken.
The record contains an email printout dated March 7, 2003 in which
an agency employee details the agency's backpay calculation. It show
that the amount of the OWCP was adjusted downward to compensate for the
longer period during which OWCP payments were received. This resulted
in a set off of $15,432.08.
For the foregoing reasons, in addition to the obligations imposed on it
by the previous order in this matter, the agency is directed to comply
with the order below.
ORDER (D0403)
The agency is ordered to take the following remedial action:
recalculate the backpay to which complainant is entitled based on the
assumption that complainant would have worked 32 hours per week during
the period February 6, 1996 to August 1, 1997.
ATTORNEY'S FEES (H0900)
If complainant has been represented by an attorney (as defined by 29
C.F.R. Sec. 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. Sec. 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. Sec. 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. Sec. 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. Secs. 1614.407, 1614.408, and 29 C.F.R. Sec. 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. Secs. 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. Sec. 1614.409.
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (P0900)
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. Sec. 2000e et seq.;
the Rehabilitation Act of 1973, as amended, 29 U.S.C. Secs. 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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
January 21, 2005
__________________
Date