05a00046
11-29-2000
Lisa H. Selby, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service (Pacific/Western Areas), Agency.
Lisa H. Selby v. United States Postal Service
05A00046
November 29, 2000
.
Lisa H. Selby,
Complainant,
v.
William J. Henderson,
Postmaster General,
United States Postal Service
(Pacific/Western Areas),
Agency.
Request No. 05A00046
Appeal No. 01981644
Agency Nos. 4F-940-2737-93, 4F-940-1128-95
Hearing Nos. 370-97-2921X, 370-96-X2225
DECISION ON REQUEST FOR RECONSIDERATION
The agency initiated a request to the Equal Employment Opportunity
Commission (EEOC or Commission) to reconsider the decision in Lisa
H. Selby v. United States Postal Service, EEOC Appeal No. 01981644
(September 3, 1999).<1> EEOC Regulations provide that the Commission may,
in its discretion, 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).
Complainant filed two formal complaints of discrimination that were
consolidated for a hearing by an EEOC administrative judge. On September
30, 1997, the AJ issued his findings and conclusions, finding that
complainant was discriminated against on the bases of disability when
she was denied work opportunities between December 28, 1992 and October
17, 1994.<2> Specifically, the AJ determined that complainant was
continually denied reasonable accommodation when the agency failed to
reassign her to one of several vacant retail sales positions. Thus,
despite a Vocational Rehabilitation report that concluded complainant was
capable of performing a customer service job, an information clerk job,
a receptionist or security guard position, the agency failed to reassign
complainant to another position. The AJ noted, however, that complainant
was ultimately provided with a window clerk position on October 17, 1994.
As make whole relief for the agency's failure to provide reasonable
accommodation between December 28, 1992 and October 17,1994, the AJ
recommended that the agency pay complainant back pay with interest at
the level 6 wage grade level between December 28, 1992 and October 17,
1994, including all other attendant employment benefits. The AJ further
found that complainant was entitled to all costs incurred in pursuit
of her first complaint. In order to ensure future compliance with the
Rehabilitation Act, the AJ also recommended that the agency conduct
a full scale review of its hiring and reassignment practices because
the agency had no policies or procedures in place to ensure that it met
its affirmative responsibilities under the Rehabilitation Act. Finally,
the AJ recommended that all managers who failed to consider complainant's
requests for accommodation be trained in their responsibilities pursuant
to the Rehabilitation Act.
The agency issued a final decision adopting the AJ's findings and
conclusions. However, it modified the recommended relief by limiting it
to back pay, including interest, at the level 6 wage rate for the time
period December 28, 1992 until October 17, 1994. Complainant appealed
the agency's final decision.
In its prior decision, the Commission determined that the agency failed
to issue a final decision within 60 days of its receipt of the AJ's
recommended decision. Specifically, the prior decision found that the
AJ's recommended decision was received by the agency on October 2, 1997,
and the agency issued its final decision on December 2, 1997, 61 days
after the agency's receipt. Thus, the prior decision found that the
AJ's findings of fact, conclusions of law, and ordered relief became
the final decision of the agency.
Furthermore, the prior decision found that the AJ correctly stated
and applied the applicable law to the record evidence, and properly
concluded that the agency did not have in place any policies or procedures
to enable it to meet its reasonable accommodation obligations under
the Rehabilitation Act. The prior decision also found that the AJ
correctly described the make-whole relief which should be awarded to
the complainant. Thus, although the agency's final decision agreed
with the AJ's recommendation to provide complainant with back pay,
including interest, the prior decision found that the agency's final
decision failed to provide complainant with the employment benefits to
which she was entitled, including but not limited to, seniority rights,
retirement benefits and overtime wages she would have earned but for
the agency's failure to provide her with a reasonable accommodation.
The prior decision also found that the agency's final decision failed to
indicate what steps it was to take to ensure that similar violations of
the Rehabilitation Act would not recur. Accordingly, the prior decision
ordered the agency to take specific actions as noted in the decision's
order.
In its request for reconsideration, the agency claims that the prior
decision made an error when we determined that the final decision
was issued on the 61st day following the agency's receipt of the AJ's
recommended decision. The agency therefore requests �the Commission
rescind its ruling in this manner.� After a review of the entire
record, we agree with the agency's conclusion that its final decision
was issued on December 1, 1997, the 60th day following its receipt of
the recommended decision. The agency therefore timely modified the
AJ's recommend relief, pursuant to then 29 C.F.R. �1614.109(g),<3>
when it issued a final decision on December 1, 1997.
Despite this error, we find no other basis in which to grant the
agency's request. We find the prior decision correctly determined that
the AJ's recommended relief constituted appropriate make-whole relief
which should be awarded to complainant. As such, the agency is ordered
to comply with the order as described below.
CONCLUSION
After a review of the agency's request for reconsideration, the previous
decision, and the entire record, the Commission finds that the agency's
request meets the criteria of 29 C.F.R. � 1614.405(b), and it is the
decision of the Commission to GRANT the agency's request. The decision
of the Commission in Appeal No. 01981644 (September 9, 1999) and the
final agency decision are AFFIRMED as MODIFIED. The decision in EEOC
Appeal No. 01981644 (September 9, 1999) remains the Commission's final
decision as modified herein. There is no further right of administrative
appeal on the decision of the Commission on a Request to Reconsider.
ORDER
The agency is ORDERED to take the following remedial action:
The agency shall alter its employment records to indicate that complainant
served in a window clerk position, from December 28, 1992, to the date
the agency first assigned her to the window clerk position on or about
October 17, 1994.
The agency shall provide complainant with back pay from December 28,
1992 to October 17, 1994; interest on back pay; and all other attendant
employment benefits (including seniority rights, overtime pay, and
retirement benefits) she would have received if she had served in a
window clerk position from December 28, 1992, to October 17, 1994.
The agency shall determine the appropriate amount of back pay (with
interest, if applicable) and other benefits due complainant, pursuant
to 29 C.F.R. � 1614.501, no later than sixty (60) calendar days after
the date this decision becomes final. The 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 the complainant for the
undisputed amount within sixty (60) calendar days of the date the
agency determines the amount it believes to be due. The 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."
The agency shall reimburse complainant for the costs incurred in pursuing
her first complaint.
The agency shall immediately take actions to ensure that violations of the
law similar to the violation found (failure to provide reassignment as a
reasonable accommodation for an employee's disabilities) will not recur.
To that end, the agency is ordered to conduct a full scale review of its
hiring and reassignment practices at the facility in question in order to
ensure that its policies are in compliance with its obligations pursuant
to the Rehabilitation Act.
The agency shall provide training to the managers who failed to consider
complainant's requests for reasonable accommodation, including the
then District Manager of Customer Services; Human Resources Specialist;
Supervisor, Injury Compensation Unit, and Human Resources Manager. The
training should specifically focus on these individuals' responsibilities
and obligations, including the provision of reasonable accommodation,
pursuant to the Rehabilitations Act.
The agency shall post a notice in accordance with the paragraph below.
The agency shall complete the actions described above within sixty (60)
calendar days of the date this decision becomes final.
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 of the
agency's calculation of back pay and other benefits due complainant,
including evidence that the corrective action has been implemented.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0900)
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)(Supp. V 1993). 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.
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.
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. � 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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
November 29, 2000
__________________
Date
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
An Agency of the United States Government
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 this facility.
Federal law requires that there be no discrimination against any
employee or applicant for employment because of that person's RACE,
COLOR, RELIGION, SEX, NATIONAL ORIGIN, AGE, or PHYSICAL or MENTAL
DISABILITY with respect to hiring, firing, promotion, compensation,
or other terms, conditions, or privileges of employment.
The San Francisco Processing & Distribution Center, San Francisco,
California, United States Postal Service, (hereinafter referred to as
�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 has been found to have discriminated on the basis
of disability when it failed to reassign an employee to a vacant
position as a reasonable accommodation for her physical disabilities.
The agency was ordered to alter its employment records to indicate that
the employee served in a window clerk position from December 28, 1992,
until the date the agency ultimately assigned the employee to a window
clerk position. The agency was also ordered to provide the employee
with back pay, including interest and all other employment benefits she
would have received had she served in a window clerk position during the
relevant time period. Furthermore the agency was ordered to conduct a
full scale review of its affirmative employment obligations pursuant to
the Rehabilitation Act. Finally, the agency was ordered to reimburse
complainant for the costs incurred during the processing of her first
complaint, provide training to the responsible officials, and post this
notice.
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 16141On November 9, 1999, revised regulations governing
the EEOC's federal sector complaint process went into effect. These
regulations apply to all federal sector EEO complaints pending at any
stage in the administrative process. Consequently, the Commission will
apply the revised regulations found at 29 C.F.R. Part 1614 in deciding
the present appeal. The regulations, as amended, may also be found at
the Commission's website at www.eeoc.gov.
2The AJ found, however, that complainant was not discriminated against
when she was denied work opportunities based on her race. The AJ also
found that complainant was not discriminated against with respect to her
race, disability and reprisal claims contained in her second complaint.
The prior decision affirmed the AJ's determination as to these issues.
Neither complainant nor the agency filed a request to reconsider these
issues. Therefore, this request for reconsideration is limited to the
agency's modification of the AJ's recommended relief with respect to
her failure to accommodate claim.
3As previously noted, the Commission has issued new regulations regarding
the processing of EEO complaints. Pursuant to our new regulations,
agencies may no longer issue final decisions accepting, rejecting or
modifying AJ's recommended decisions.