01a05275
10-12-2001
Luther Bell, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, USPS Headquarters, Agency.
Luther Bell v. United States Postal Service
01A05275
October 12, 2001
.
Luther Bell,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
USPS Headquarters,
Agency.
Appeal No. 01A05275
Agency No. HO-0168-98
DECISION
INTRODUCTION
Complainant timely filed this appeal seeking enforcement of the
final agency decision (FAD) entered in his discrimination complaint.
The appeal is accepted pursuant to 29 C.F.R. � 1614.504. Because the
agency has failed to present sufficient evidence showing that it has
fully implemented all of the remedies imposed in the FAD, we find the
agency has not fully complied with the FAD, and REMAND the matter to
the agency for full compliance.
BACKGROUND
On July 17, 1998, complainant formally filed a complaint of discrimination
with the agency, alleging it had violated Title VII of the Civil Rights
Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq. and
the Age Discrimination in Employment Act of 1967 (ADEA), as amended,
29 U.S.C. � 621 et seq. when it unlawfully discriminated against
complainant on the bases of race (black), sex (male), age (55), and in
reprisal for his prior protected EEO activity. Complainant contends
that this unlawful discrimination took place in May 1998 when he was
not selected for the position of EAS-15 Supervisor of Manufacturing
and Repairs at the agency's Mail Equipment Shop in Washington, D.C.
On February 2, 2000, the Administrative Judge (AJ) who presided over
the administrative hearing on complainant's claim entered her findings
and conclusions. The AJ entered summary judgment against complainant
on his claims of race and sex discrimination, noting that he had failed
to meet his burden of establishing a prima facie case on those claims,
as the individual who was selected for the position in question was of
the same race and sex as complainant. However, the AJ did find that
complainant had been unlawfully discriminated against on the bases of
age and had been subjected to reprisal for his prior EEO activity.
As a remedy for the discrimination found, the AJ imposed upon the agency,
pursuant to 29 C.F.R. � 1614.501(c), (e), five remedial obligations.
The remedies pertinent to this request for enforcement are as follows:
The complainant shall be offered placement in the position of EAS-15
Supervisor of Manufacturing and Repairs at the Agency's Washington, D.C.,
Mail Equipment Shop, or a substantially similar position, retroactive
to the date of the selection in May 1998. The offer shall be made in
writing, and the complainant shall have 15 days from receipt of the
offer within which to accept or decline.
The complainant shall be awarded back pay, with interest, computed in
the manner prescribed by 5 C.F.R. � 550.805, and any other benefits of
employment, he would have earned up to the date he is placed in the
position or declines the agency's offer. If the complainant accepts
the position but no vacancy is immediately available, the complainant
shall receive front pay until such time as he can be placed in an
appropriate position.
. . . .
The complainant shall receive an award of attorney's fees pursuant
to 29 C.F.R. � 1614.501(e). The complainant's attorney shall submit
the verified statement called for in 29 C.F.R. � 1614.501(e)(iv)(2)(i)
no later than 30 days of the date of this decision. The agency shall
notify the Administrative Judge within 10 days thereafter if it intends
to file a response to the verified statement.
On April 7, 2000, the AJ issued her decision on attorney's fees in the
case, awarding complainant $5,483.50 for attorney's fees and costs.
On May 19, the agency issued its FAD, adopting the findings and
conclusions of the AJ and implementing her decision.
On May 25, 2000, six days after entry of the FAD, the agency made
a written offer to the complainant of the position of Supervisor,
Manufacturing and Repairs, EAS-15 at the Mail Equipment Shops.
This offer made no mention of the salary to be paid for that position.
In a letter to the agency dated May 31, 2000, complainant's attorney
stated that complainant accepted the position offered, �provided that his
starting salary is $42,500.� In this letter, the complainant's attorney
asserted that the agency's offer was incomplete in that �it contained
no starting salary for his position and did not state that the position
is retroactive to May 23, 1998.� The letter also claimed that, based
upon complainant's length of service and experience with the agency,
complainant would have received more that the $39,504 offered as an
initial salary to the original selectee for the position. In a letter
dated June 6, 2000, complainant himself made a written acceptance of
the agency's May 25 offer. In this acceptance, he directed the agency
to direct �[a]ll further negotiation about the settlement of supervisory
position EAS-15� to his attorney. He did not mention any specific salary
amount to be paid for the position at issue.
On June 21, complainant notified the agency that as of that date it
was not in full compliance with the FAD. This notice asserted that
none of the remedial actions ordered had been performed, including the
failure of the agency to �[o]ffer the complainant an EAS-15 position
retroactive to May 13, 1998 with a starting salary of $42,500.�<1>
The notice also requested information on what steps were being taken to
remedy the noncompliance. There is no indication in the case file that
the agency responded to this request.
On August 1, the complainant filed this request for enforcement,
claiming that the agency failed to comply with the FAD when it (1)
offered complainant a position of EAS-15 without offering a starting
salary commensurate with complainant's prior supervisory experience and
years of service; (2) did not pay complainant any back pay, interest
thereon, or other benefits due; and (3) did not pay the attorney's fees
awarded by the AJ.
ANALYSIS AND FINDINGS
The first issue to be addressed is whether the agency has satisfied its
obligation to offer the complainant �placement in the position of EAS-15
Supervisor of Manufacturing and Repairs at the Agency's Washington, D.C.,
Mail Equipment Shop, or a substantially similar position, retroactive to
the date of the selection in May 1998.� We note at the outset that the
AJ's order does not indicate a specific salary to be paid complainant
in this position.
While the case file in this matter does not contain any correspondence
from the agency to the complainant or his attorney on this issue,
other than the initial offer of the position, the agency has provided
documentary evidence of how it processed the placement of complainant in
the position at issue. Specifically, there are two Notices of Personnel
Action which address complainant's placement and salary in the position.
The first, under the description of �promotion,� has a processed date
of June 27, 2000, and an effective date of May 23, 1998. This notice
provides that the �rate schedule code� for the complainant is EAS, grade
level 15, with a base salary of $37,714. The second notice is under the
description of �merit increase� and has a process date of July 10, 2000
and an effective date of January 1, 1999. This latter notice provides
that the base salary for complainant is $40,071. Complainant has not
contested these documents or the actions they purport to have affected.
The only evidence offered in support of complainant's position are the
aforementioned letters written to the agency by himself or his attorney.
These unsupported assertions, without more, do not suffice to establish
that the salary offered by the agency is deficient to the point of
failing to comply with the FAD. If anything, they represent complainant's
attempts at negotiating a higher salary for the position at issue. The
evidence presented by the agency is unchallenged by the complainant,
and is sufficient, absent the presentation of evidence to the contrary,
to establish that the agency has in fact complied with its obligation
to offer the position at issue to complainant. We accordingly find the
agency in compliance with the FAD on this issue.
The second issue presented is whether the agency has complied with the
portion of the FAD mandating payment to complainant of back pay, with
interest, and benefits. The agency has not provided sufficient evidence,
especially in light of complainant's allegations that the agency has
not complied with the FAD, to determine whether the back pay ordered has
actually been paid. The only evidence which is presented on this issue
is a routing slip from the agency compliance representative (ACR) to the
�PDC,� and which notes that a copy of the case has been included, that
the promotion is retroactive to May 23, 1998, and that the back pay is
the difference between the pay received and the EAS-15 pay. The agency
has also presented what appears to be a pay stub for eighty hours of
work by complainant, but this stub does not indicate whether any back
pay has been paid to complainant. There is no evidence presented that
the processing or payment of complainant's back pay progressed beyond
forwarding the case to �PDC.� As a result, the agency is found to not
be in compliance with the order to provide complainant back pay.
The final issue presented regarding enforcement of the FAD is whether the
agency has complied with the portion of the order mandating the payment
of attorney's fees. The agency has presented evidence that, shortly
after the filing of this complaint, it began to process the payment
of attorney's fees. The evidence shows that check number 00250887568,
dated September 15, 2000 and in the amount of $5,483.20 had been issued
to complainant's attorney. Complainant and his attorney each executed
affidavits on September 25 and 26, 2000, respectively, and, while in
each affidavit complainant and his attorney make statements concerning
the appointment and back pay issues, neither discusses the failure to
pay attorney's fees. Based on the evidence presented, we find that the
agency is in compliance with the order to pay complainant attorney's
fees and costs.
Complainant has also requested an award of additional attorney's fees and
costs to cover the expense incurred in his efforts to seek enforcement of
the FAD. We have recognized that an award of attorney's fees is available
in compliance actions, when the complainant is compelled by an agency's
noncompliance to seek the Commission's enforcement of the underlying
order. Turner v. Department of the Interior, EEOC Petition No. 04980037
(Aug. 5, 1999). Complainant is therefore entitled to an additional award
for the attorney's fees and costs incurred in this enforcement action.
We note that in his September 25, 2000 affidavit in support of his
request for enforcement, complainant raises the claim that the agency is
unlawfully discriminating against him on the bases of age and reprisal
for prior EEO activity, because the salary originally provided at
the time he accepted the position at issue was less than that of the
starting salary of coworkers who are either younger than complainant or
who have not filed complaints of discrimination. This is a new claim of
discrimination, separate and distinct from the action presently before us.
Therefore, we conclude that it would be inappropriate for the Commission
to address these allegations in this forum. Singleton v. Social
Security Administration, EEOC Request No. 05A10698 (August 8, 2001).
As the Commission cannot address an issue raised for the first time
on appeal, complainant is advised that if he wishes to pursue, through
the EEO process, these additional allegations, he must contact an EEO
counselor within 15 days after he receives this decision. The Commission
advises the agency that if complainant seeks EEO counseling regarding
this new claim within the above 15 day period, the date complainant
filed the affidavit in which he raised this allegation, October 3, 2000,
shall be deemed the date of initial EEO contact, unless he previously
contacted a counselor regarding this matter, in which case the earlier
date shall serve as the EEO counselor contact date. Cf. Alexander
J. Qatsha v. Department of the Navy, EEOC Request No. 05970201 (Jan. 16,
1998); Williams v. Department of the Navy, EEOC Request No. 05A10183
(June 21, 2001).
ORDER
The agency is ORDERED to comply with the agency's prior order in Agency
Case No. HO-0168-98, entered on May 19, 2000, consistent with this Order,
no later than forty-five (45) calendar days after the agency's receipt
of this Order, and to perform the following:<2>
Award the complainant back pay, with interest, computed in the manner
prescribed by 5 C.F.R. � 550.805, and any other benefits of employment,
he would have earned up to the date he was placed in the position;
Award the complainant attorney's fees and costs in the amount of
$5,483.20, as provided for in the Administrative Judge's Decision on
Attorney's Fees dated April 7, 2000; and
Award the complainant attorney's fees incurred as a result of pursuing
this enforcement action.
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.
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 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.
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 (R0900)
This is a decision requiring the agency to continue its administrative
processing of your complaint. However, if you wish to file a civil
action, you have the right to file such action in an appropriate United
States District Court within ninety (90) calendar days from the date
that you receive this decision. 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 (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
October 12, 2001
Date
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
__________________
Date
______________________________
1 We note that while complainant asserts that the effective date of his
retroactive promotion and calculation of back pay should be May 13, 1998,
and the agency has asserted through its actions that the proper date is
May 23, 1998, neither party has presented any evidence which defines
with more precision the AJ's order that the retroactive date is �May,
1998.� Nor does complainant affirmatively claim that the date used by
the agency is incorrect. Accordingly, we do not address this issue.
2 It is uncontested in this appeal whether the agency complied with
the portion of the FAD requiring the agency to post an EEOC Notice to
Employees that the agency had been found to have discriminated against
an employee, and we note that the agency has submitted evidence showing
that it has complied with this portion of the order.