04a60024
08-02-2006
Maxine Nixon, Petitioner, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Maxine Nixon,
Petitioner,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Petition No. 04A60024
Appeal No. 01A45838
Agency Nos. 4H-370-0153-00, 4H-370-0205-00, 4H-370-0153-01, 4H-370-0079-02
DECISION ON A PETITION FOR ENFORCEMENT
On May 25, 2006, the Equal Employment Opportunity Commission (EEOC or
Commission) docketed a petition for enforcement to examine the enforcement
of an order set forth in Maxine Nixon v. United States Postal Service,
Appeal No. 01A45838 (July 12, 2005). This petition for enforcement is
accepted by the Commission pursuant to 29 C.F.R. � 1614.503.
Petitioner previously filed a complaint in which she alleged that
the agency discriminated against her on the bases of race (Black), sex
(female), age (44) and in reprisal when she became aware in February 2000,
that the agency would not allow her to serve as a 204B Acting Supervisor;
when on April 12, 2000, the agency denied complainant an Officer-in-Charge
position; on March 23, 2001, complainant became aware that two employees
were selected for Supervisor, Customer Services, EAS-16, while she was
not selected for either position; and on October 13, 2001, the agency did
not select her for a Supervisor, Customer Services position. Following a
hearing, an EEOC Administrative Judge (AJ) issued a February 3, 2004
decision, finding that the agency discriminated against complainant
when she was not selected for the 204B position in February 2000,
when she was denied the opportunity to serve in an Officer-in-Charge
position in April 2000, when she was not selected as Supervisor, Customer
Services in March 2001, and when she was not selected as Supervisor,
Customer Services in October 2001. As relief for the discrimination,
the AJ ordered the agency, among other remedies, to attempt to agree
with complainant what amount of compensatory damages was due and to post
a notice (attached to the AJ's decision) on all bulletin boards in the
agency's Jackson, Tennessee facility for sixty days. The AJ ordered the
parties to request a hearing on the matter if no compensatory damages
agreement could be reached. In a February 24, 2004 decision, the agency
adopted the findings of the AJ.
After the parties failed to reach an agreement on compensatory damages,
a hearing was held to take evidence regarding the issue of compensatory
damages. Following the hearing, on May 27, 2004, the AJ issued a decision
awarding $12,000.00 in non-pecuniary damages. The agency failed to
issue a final order within forty days of receipt of the AJ's decision
on compensatory damages. Therefore, the AJ's decision on compensatory
damages became the agency's final order. Subsequently, complainant filed
an appeal with the Commission requesting a greater amount of compensatory
damages.
In EEOC Appeal No. 01A45838 (July 12, 2005), the Commission upheld
the award of compensatory damages in the amount of $12,000.00.
The Commission ordered the agency, to the extent it has not already
done so, to compensate complainant for all back pay to which she is
entitled from February 2, 2000, and make all necessary adjustments to her
retirement and other benefits which she would have enjoyed had she been
selected as a 204B in February 2000, had she been allowed to serve as an
Officer-in-Charge position in April 2000, and had she been selected as
Supervisor, Customer Services in March 2001; promote complainant to the
position of Supervisor, Customer Services, and until such time as this
promotion is effectuated the agency shall compensate complainant at the
level of pay and benefits she would be receiving had she been selected
as Supervisor, Customer Services in March 2001; compensate complainant
for reasonable attorney's fees and expenses in accordance with the AJ's
May 27, 2004 decision; and pay complainant $12,000.00 in compensatory
damages.
Thereafter, petitioner submitted the petition for enforcement at issue
in which she contends that the agency failed to compensate her for the
back pay and interest ordered in the Commission's decision; failed to
pay attorney's fees and expenses as specified in the AJ's decision;
and failed to provide evidence that it posted the requisite notice
on bulletin boards at the agency's Jackson, Tennessee Post Office.
In her petition for enforcement, complainant acknowledged that the
agency promoted her to the position of Supervisor, Customer Services,
and paid her $12,000.00 in compensatory damages.
With regard to complainant's claim that the agency is not in full
compliance with its obligation to pay complainant back pay and other
benefits plus interest in accordance with the Commission's previous
decision, we are unable to determine from the information in the record
whether the agency has paid complainant the full back pay and benefits
plus interest due to her. While we note the record does contain some
calculations the agency states is for back pay, after reviewing these
calculations and handwritten notes we find it is unclear as to the exact
amount of back pay and benefits the agency determined complainant was
entitled to in accordance with the Commission's decision. Further,
we note there is no evidence complainant was actually paid any money
for lost back pay and other benefits plus interest. Accordingly, this
issue is remanded for further processing in accordance with the order
listed below.
With regard to complainant's claim that the agency failed to pay her
attorney's fees, we note that the AJ's May 27, 2004 decision provided
that within thirty days of the final submission for fees and expenses
from complainant's attorney, the agency shall compensate complainant for
reasonable fees and expenses in bringing this case. In his petition for
enforcement, we note that complainant requests $13,375.36 as requested
in his August 14, 2004 amended fee petition. We find complainant is
not entitled to the attorney's fees requested in his August 14, 2004
fee petition, as these fees were incurred in pursuit of his unsuccessful
appeal of the AJ's compensatory damages award.1
Further, with regard to complainant's claim that the agency failed to
post the notice ordered in the Commission's previous decision, we note
that the Commission's decision provided that the notice was to be posted
on all bulletin boards at the agency's Jackson, Tennessee facility.
The record contains a copy of the notice showing that it was posted from
May 1, 2004, through June 29, 2004, at the agency's Jackson Post Office
and all branches. Thus, we find the agency has shown compliance with
the posting requirement in the Commission's previous decision.
Accordingly, the issue of the agency's compliance with its obligation
to provide back pay and other benefits plus interest for the relevant
period is REMANDED to the agency for further action in accordance with
the Order listed below.
ORDER
The agency shall take the following actions:
A. Within 30 calendar days of the date this decision becomes final,
the agency shall provide complainant with documentation concerning
its calculations of back pay and other benefits due plus interest.
Additionally, the agency shall provide complainant and the Commission
a narrative description clearly indicating the total amount of back pay
and other benefits plus interest it determined complainant is due.
B. Further, to the extent it has not done so, the agency, within
30 calendar days of the date this decision becomes final, shall pay
complainant all money due for back pay and other benefits plus interest.
C. Within 30 calendar days of the date this decision becomes final, the
agency shall supplement the record with documentary evidence showing the
amount of payments made to complainant for back pay and other benefits
plus interest and evidence showing when those payments were made.
The agency shall provide a report of compliance, as provided herein.
The report shall include supporting documentation of the agency's
calculation of back pay and other benefits during the relevant period
and proof of payments provided to complainant.
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.
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
August 2, 2006
__________________
Date
1 We note that the record reveals that on March 8, 2004, complainant's
attorney submitted an itemized accounting of fees and expenses incurred,
requesting attorney's fees and costs in the amount of $29,849.51,
accumulated in pursuit of the claims for non-selection and failure
to promote. The record reveals that the agency issued a check to
complainant's attorney in the amount of $29,849.51 which was received
by complainant's attorney on April 26, 2004.
??
??
??
??
2
04A60024
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036