0120090158
05-07-2010
Michael C. Simonetta, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Northeast Area), Agency.
Michael C. Simonetta,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Northeast Area),
Agency.
Appeal No. 0120090158
Hearing No. 160-2003-08558X
Agency No. 4B018003502
DISMISSAL OF APPEAL
On October 9, 2008, complainant brought this matter before the Commission
regarding his contention that the agency was not in compliance with its
November 6, 2007 decision, which implemented the decision of an EEOC
Administrative Judge (AJ) who found discrimination.
A review of the record reveals that complainant filed a complaint in
which he alleged that the agency discriminated against him on the bases
of disability and reprisal for prior EEO activity when agency officials
attempted to change his permanent EEO created job assignment three times
in two months and, after complainant refused to accept the offers,
on January 15, 2002, complainant received a 14-day suspension and on
February 19, 2002, complainant was terminated complainant's employment.
In an order dated September 25, 2007, the AJ noted the following:
In the instant case, Complainant's original complaint alleged that
the Agency discriminated against him on the basis of a mental
and physical disability and retaliated against him for having
engaged in protected EEO activity. In a Preliminary Decision,
I dismissed Complainant's disability claims, but found ultimately
in his favor on his reprisal claim. I awarded him back pay,
restoration of employment, and attorney's fees.1
The agency's final order of November 6, 2007 fully implemented the AJ's
decision. By letter dated November 21, 2007, the agency remitted an
award of attorney's fees to complainant in the amount of $36,712.50, made
payable to complainant's attorneys. In his appeal, complainant states
that on May 30, 2008, he signed, under protest, a document requested by
the agency that requested information regarding complainant's outside
employment income. Complainant noted on the document that he understood
the AJ's order provided that the agency is "not entitled to recoup
[its] losses. I don't agree with the outside employment part of this
document. . . ." By electronic mail message, complainant inquired whether
he would lose his rights to appeal the agency's back pay calculation
by cashing the checks the agency would be sending to him. The agency
Labor Relations representative replied that he would not.
Thereafter, by memorandum dated June 25, 2008, the agency paid complainant
$110,965.22 in back pay, less specified deductions as detailed in a
"typewriter check payment." By remittance memorandum dated July 14,
2008, the agency paid complainant $27,139.41 for interest calculated on
complainant's back pay award. This appeal followed.
In his appeal, complainant states that he received the agency's interest
payment on July 21, 2008.2 Complainant states that he is entitled
to an additional payment of $323,655.52. That sum, complainant states,
represents the income complainant received from the time he was removed by
the agency through the time the AJ directed the agency to reinstate him
to his former position. The agency deducted (or offset) complainant's
interim income from his back pay award, which complainant claims the
agency was not entitled to do. Rather, complainant states the agency
was ordered by the AJ to pay "full back pay", without any offset.
EEOC Regulation 29 C.F.R. �1614.504 provides that a final action that
has not been the subject of an appeal or civil action is binding on
the agency, and that if a complainant believes the agency has failed
to comply with the terms thereof, he shall notify the agency within 30
days of learning of the alleged noncompliance. If, after 35 days from the
agency's receipt of complainant's written allegations of noncompliance,
complainant is not satisfied with the agency's attempt to resolve the
matter, complainant may appeal to the Commission for a determination as to
whether the agency has complied with the terms of the final decision. See
29 C.F.R. �1614.504(b).
In the instant case, we find that complainant knew of the alleged
non-compliant payment for back pay upon his receipt of the agency's
back pay award in June 2008, or at the latest, upon his receipt of the
agency's payment for interest on his back pay award on July 21, 2008.
We find no indication that complainant raised his claim that the agency
failed to comply with its final order with the agency's EEO Director
thereafter apart from sending a copy of the instant appeal (on October 9,
2008) to the agency. We observe that complainant waited until October
9, 2008 to file his appeal, which is well beyond the 30-day time limit.
Complainant has not presented any argument that would warrant a waiver
or extension of the applicable time limits. Accordingly, we DISMISS
complainant's non-compliance appeal as untimely.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 77960,
Washington, DC 20013. 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 (S0408)
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. If you
file a request to reconsider and also file a civil action, filing a civil
action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z1008)
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
May 7, 2010
__________________
Date
1 The AJ's order further determined that complainant was to recover
$36,712.50 in attorney's fees.
2 Complainant states that he was informed by his former attorney that
he had 90 days to file for enforcement of the agency's final order
implementing the AJ's order.
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0120090158
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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