0520110365
03-13-2012
Linda Wright, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Capital Metro Area), Agency.
Linda Wright,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Capital Metro Area),
Agency.
Request No. 0520110365
Appeal No. 0720070047
Hearing No. 430-2006-00120X
Agency No. 4K-230-0021-06
DENIAL
The Agency timely requested reconsideration of the decision in Linda Wright v. U.S. Postal Service, EEOC Appeal No. 0720070047 (Feb. 11, 2012) (Wright-1). 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).
ISSUE PRESENTED
The issue presented is whether the Agency met the criteria for reconsideration by demonstrating that the appellate decision: (1) involved a clearly erroneous interpretation of material fact or law; or (2) will have a substantial impact on the policies, practices, or operations of the Agency.
BACKGROUND
The previous appellate decision reflects that on March 16, 2007, the EEOC Administrative Judge (AJ) issued his decision. The AJ's decision and the hearing file were mailed to the Agency's EEO Compliance and Appeals Office in Pennsylvania and to the Agency's legal representative in its Capital Metro Area Law Office. The Agency asserted on appeal that the AJ had misdirected the Agency's copy of the decision and file. The Agency also asserted that because it did not receive a copy of the decision and the file at the appropriate mailing address until March 26, 2007, it had 40 days from March 26, 2007 to issue a final decision. Therefore, the Agency's decision issued on May 4, 2007 was timely. In the previous appellate decision ,we found, using the five-day presumption of mail receipt, that March 21, 2007, was the date from which the 45-day time period for the Agency's issuance of its Notice of Final Action, began to run. Accordingly, the Agency's decision, issued on May 4, 2007, was beyond the regulatory timeframe and therefore untimely.
AGENCY'S ARGUMENTS ON RECONSIDERATION
In its request to reconsider the previous appellate decision, the Agency re-argues that in an October 30, 2006 letter it informed the Supervisory Administrative Judge in the Commission's Charlotte District Office in North Carolina that it was centralizing most of its discrimination complaint processing in its National EEO Investigative Services Office (NEEOISO) and that it was requesting that the Charlotte District Office AJs send all of their decisions and hearing files not to NEEOISO and not to the Eastern, Capital Metro, or Southeast Area offices. The letter provided the Tampa, Florida address of NEEOISO.
As argued previously, the Agency relies on Robinson v. Dep't of the Army, EEOC Request No. 05930965 (Sept. 22, 1994). In Robinson, the agency argued that the AJ erred in sending the recommended decision to the command activity attorney when the Agency had accompanied its request for assignment of an AJ with specific instructions to send the recommended decision to the Agency headquarters. The Agency also argued that the holding of our previous decision in Robinson v. Dep't of the Army, EEOC Appeal No. 01931924 (June 23, 1993), would have far reaching implications on the complaint processing of final decisions, and further asserted that in a large agency, with a world-wide workforce with different command activity EEO offices, the time limitation could run before the case file was actually sent to the office which issued the final decision. The Commission found that the AJ had erred in sending the recommended decision and the case file to the agency attorney at the local command activity. The Commission determined that it had been the practice and policy of the Commission to send correspondence relating to the disposition of the case to the agency headquarters office designated to handle such matters.
ANALYSIS AND FINDINGS
Upon review, the Commission's decision remains the same. The Agency is reminded that a request to reconsider is not a second appeal. Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110) (rev. Nov. 9, 1999), � VII(A). The Agency's request for reconsideration does not establish that the appellate decision involved a clearly erroneous interpretation of material fact or law, or that the appellate decision will have a substantial impact on the policies, practices, or operations of the Agency.
Although the Agency relies on Robinson, the Commission notes instead its more recent decision in Miller v. U.S. Postal Service, EEOC Request No. 05A40871 (June 29, 2006), which addressed the timeliness of the agency's issuance of a final decision after its receipt of the AJ's decision. In Miller, the certificate of service attached to the AJ's decision reflected that the AJ had sent the decision to complainant, complainant's attorney, and the agency's attorney. In Miller the record also contained a letter from the agency to the District Director of the Commission's Los Angeles District Office in which the Agency stated that, after a hearing, the AJ's decision, as well as the hearing transcript, should be sent to the agency's EEO Compliance and Appeals Office. Also, in Miller the agency had submitted a copy of a letter from the agency's attorney to the AJ in which the agency's attorney stated that the agency official responsible for receiving the decision was the Manager, EEO Compliance and Appeals. We accordingly concluded in Miller that our previous decision erred when it found that the agency's appeal was untimely.
In the present case, there is no record of a letter sent to the AJ in the same manner as was the case in Miller. In addition, although in its appeal, the Agency provided an October 30, 2006 letter, which it purportedly submitted to the Supervisory AJ for the Commission's Charlotte District Office, there is no evidence, other than the Agency's assertion, that the letter was mailed to and received by the Charlotte District Office. We note that the October 30, 2006 letter from the Agency was addressed to "129 Trade Street" and not 129 West Trade Street, the Charlotte District Office's street address. This raises a question as to whether the improperly addressed letter was ever received.1 In addition, in Miller, the agency not only submitted a letter to the District Director of the Commission's District Office where the case was being adjudicated but also submitted a letter to the AJ from the agency's attorney specifically informing the AJ where a decision was to be sent. This was not done in the instant case.
CONCLUSION
After reviewing 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. The decision in EEOC Appeal No. 0720070047 remains the Commission's decision. There is no further right of administrative appeal on the decision of the Commission on this request. The Agency shall comply with the Order as set forth below.
ORDER
The Agency is ordered to take the following remedial actions:
1. The Agency shall offer Complainant the position of Modified Secretary, or a substantially equivalent position. Complainant shall have 15 calendar days from receipt of the offer within which to accept or decline the offer. Failure to accept the offer within the 15-day period will be considered a declination of the offer, unless Complainant can show that circumstances beyond her control prevented a timely response. If the offer is accepted, appointment in the position shall be retroactive to March 8, 2006.
2. Determine the appropriate amount of back pay, with interest, and other benefits due Complainant, pursuant to 29 C.F.R. � 1614.501. Complainant shall cooperate in the Agency's efforts to compute the amount of back pay and benefits due, and shall provide all relevant information requested by the Agency. If there is a dispute regarding the exact amount of back pay and/or benefits, the Agency shall issue a check to Complainant for the undisputed amount within sixty (60) calendar days of the date the Agency determines the amount it believes to be due. Complainant may petition for enforcement or clarification of the amount in dispute. The petition for clarification or enforcement must be filed with the Compliance Officer, at the address referenced in the statement entitled "Implementation of the Commission's Decision."
3. Pay Complainant $1,350 for past medical expenses, $1,600.00 for future medical expenses, and $1,150.00 for Complainant's TSP fund tax penalty.
4. Pay Complainant $100,000.00 in non-pecuniary compensatory damages.
5. Pay Complainant $19,835.68 in attorney's fees and costs.
6. Provide each of the individuals responsible for violating the Rehabilitation Act in this case and all management at its Petersburg facilities with at least 16 hours of training on their responsibilities, rights and obligations under federal equal opportunity laws and regulations. The training must pay particular attention to management's obligations under the Rehabilitation Act.
7. Consider taking appropriate disciplinary action against the responsible management officials. 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).
8. Post a notice of the finding of discrimination in accordance with the below-entitled paragraph, "Posting Order."
9. Submit a report of compliance, as provided in the below-entitled paragraph, "Implementation of the Commission's Decision." The report shall include supporting documentation of the Agency's calculation of back pay and other benefits due Complainant, including evidence that the corrective action has been implemented.
POSTING ORDER (G0610)
The Agency is ordered to post at the Petersburg, Virginia Main Post Office 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 (H0610)
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 (K0610)
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 (P0610)
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 (Z0610)
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
March 13, 2012
__________________
Date
1 We take administrative notice that a West and East Trade Street exists. The Commission also notes that in its request to reconsider, the Agency provided a letter, dated April 25, 2006, transmitting the case file and Complainant's request for a hearing to the Charlotte Office District Director requesting that at the completion of the hearing that the decision be sent to the Manager, EEO Compliance and Appeal, Capital Metro Area in Ashburn, Virginia.
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0520110365
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0520110365