Mary L. Stewart, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, (Pacific Area), Agency.

Equal Employment Opportunity CommissionOct 8, 2002
05A20733 (E.E.O.C. Oct. 8, 2002)

05A20733

10-08-2002

Mary L. Stewart, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Pacific Area), Agency.


Mary L. Stewart v. United States Postal Service

05A20733

October 8, 2002

.

Mary L. Stewart,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service,

(Pacific Area),

Agency.

Request No. 05A20733

Appeal No. 01A21763

Agency Nos. 1F-906-0026-98 and 1F-906-1053-95

Hearing Nos. 340-99-3165X and 340-99-3676X

DENIAL OF REQUEST FOR RECONSIDERATION

Mary L. Stewart (complainant) timely initiated a request to the Equal

Employment Opportunity Commission (EEOC or Commission) to reconsider

the decision in Mary L. Stewart v. United States Postal Service, EEOC

Appeal No. 01A21763 (April 11, 2002). 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 submitted on February 4, 2002, a filing which we accepted as

a timely appeal pursuant to 29 C.F.R. � 1614.504(b) from the agency's

letter of January 28, 2002 responding to complainant's allegation of

non-compliance with the Administrative Judge's (AJ) order of relief.

The AJ ordered the agency to calculate back pay and pecuniary damages

for certain medical expenses, and the parties had an apparent dispute

regarding whether or not overtime and holidays should be included in

the back pay award.

In the Commission's decision, we directed the agency to comply with our

Order, which directed the agency, to the extent it had not already done

so, to provide the relief ordered by the AJ, consistent with the decision.

We stated that if the agency did not comply, complainant could file a

petition for enforcement of the Order, pursuant to 29 C.F.R. � 1614.503.

Complainant then filed a request for reconsideration with the Commission,

stating that she did not appeal the agency's adoption of the AJ's

decision because, although the agency decision was sent by certified

mail which she picked up and signed for, she was under stress, did not

understand that it was the agency's final decision, her representative

failed and refused to advise her to her appeal rights, and that her

representative performed acts sufficient to constitute ineffectiveness

of counsel. Complainant appears to be seeking a new hearing.

Initially, the Commission notes that despite complainant's allegations

that her representative failed to advise her of her appeal rights, the

record reveals that the agency issued a final order on September 17,

2001, in which it agreed to implement the AJ's decision. The final order

contained a notice of appeal rights, and was sent to complainant by

certified mail. A copy of the return receipt in the record indicates

that complainant received the final order on September 21, 2001.

Pursuant to 29 C.F.R. � 1614.402, complainant's appeal was required

to be filed within thirty (30) days of her receipt of the final order.

Accordingly, we again find that complainant's appeal with respect to the

final order was untimely. However, we note that we accepted complainant's

letter dated February 4, 2002 as a timely appeal pursuant to 29 C.F.R. �

1614.504(b) from the agency's letter of January 28, 2002 responding to

complainant's allegation of non-compliance with the AJ's order of relief

and issued our previous decision as a result.

Thus, after a review of complainant's request for reconsideration, 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. 01A21763 remains the Commission's final decision.

We will restate our previous Order, and again note that if the agency

does not comply with the Order, complainant may file a petition for

enforcement of the Order below, pursuant to 29 C.F.R. � 1614.503.

ORDER

To the extent the agency has not already done so, the agency is ordered

to take the following remedial action within thirty (30) days of the

date this decision becomes final:

(1) Reinstate complainant to her former position, or to an equivalent

one, retroactive to June 12, 1998, the date of removal, with full back

pay and all benefits to which she would have been entitled had she not

been removed, plus interest, consistent with the foregoing decision.

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."

(2) Upon her return to work, complainant shall provide the agency with

a list of her current medical restrictions, and should they preclude her

from performing the essential functions of her position, the agency shall

engage in the requisite individualized assessment of her limitations in

order to determine how to accommodate her pursuant to the Rehabilitation

Act.

(3) Post a notice to all employees at the Worldway Airmail Center,

signed by the agency's duly authorized representative, for a period

of sixty (60) consecutive days, in conformity with EEOC regulations,

as directed by the Administrative Judge.

(4) The agency shall afford complainant 30 days to resubmit documentation

which fully supports the amounts requested for outstanding medical

expenses cited at Complainant's Exhibit 6 in the hearing record, and

in particular confirms the amounts which are currently outstanding.

Within thirty (30) days of receipt of the subject documentation, the

agency shall pay those expenses and provide complainant with a copy of

the checks and cover letters confirming payment.

(5) The agency shall pay complainant $25,000 in non-pecuniary damages.

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

October 8, 2002

__________________

Date