04990017
05-18-2000
) Petition No. 04990017
James W. Ozanian v. United States Postal Service
04990017
May 18, 2000
James W. Ozanian, )
Petitioner, )
) Petition No. 04990017
v. ) Appeal No. 01965252
) Agency No. 1B-029-1009-95
William J. Henderson, ) Hearing No. 160-95-8644X
Postmaster General, )
United States Postal Service, )
(N.E./N.Y. Metro Region), )
Agency. )
____________________________________)
DECISION ON A PETITION FOR ENFORCEMENT
On January 12, 1999, the Equal Employment Opportunity Commission
(EEOC or Commission) docketed a petition for enforcement to examine
the enforcement of an order set forth in James W. Ozanian v. United
States Postal Service, EEOC Appeal No. 01965252 (May 13, 1998).<1> This
petition for enforcement is accepted by the Commission pursuant to 29
C.F.R. � 1614.503. Petitioner alleged that the agency failed to fully
comply with the Commission's order to award him the appropriate amount of
overtime plus interest due him, to accommodate his physical disability,
and to provide EEO training to the responsible agency officials (RMOs)
who were found to have discriminated against him. For the reasons set
forth below, the Commission finds that the agency has fully complied and,
therefore, the petition is DENIED.
Petitioner filed a complaint in which he alleged that the agency had
discriminated against him on the basis of physical disability (torn
medial meniscus - left knee) when it denied him overtime as a limited
duty clerk. Petitioner's complaint was heard before an EEOC
Administrative Judge (AJ), who found that petitioner was a qualified
disabled individual who had been discriminated against when he was
denied overtime and when the agency failed to accommodate his disability
by allowing him to work in a regular hand case with a straight back
chair. The agency, however, timely rejected the AJ's Recommended
Decision (RD), finding no discrimination in its final decision.
Petitioner next appealed the agency's final decision to the Commission.
In EEOC Appeal No. 01965252, the Commission then upheld the AJ's RD, and
reversed and remanded the agency's final decision for further processing
in line with the following order: (1) petitioner shall be awarded the
amount of overtime he would have been entitled to had he not been
discriminated against; (2) the agency shall place petitioner in the
regular hand case section and accommodate his disability; and (3) the
RMOs found by the AJ to have discriminated against petitioner shall
receive EEO training with emphasis on the rights of disabled workers in
the workplace.
The order also specified that the agency had to post at petitioner's
facility a notice that the EEOC had found a violation of Title VII
of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.
The matter was assigned to a Compliance Officer and docketed as Compliance
No. 06981259 on May 14, 1998.
On December 27, 1998, petitioner then submitted the petition for
enforcement at issue. Petitioner contends that the agency: (1) failed to
award him the full amount of overtime, plus interest, to which he would
have been entitled had he not been discriminated against; (2) failed to
place him in the regular hand case section and accommodate his disability
but rather kept him segregated from the other distribution clerks; and
(3) failed to inform him that the RMOs who had discriminated against
him had received any EEO training.
In response, the agency submits documentation showing how it arrived at
the amount of the overtime award, accommodated petitioner's disability,
and provided EEO training to the RMOs. We will now determine if the
agency has fully complied with our Order.
Petitioner contends that he would have worked all the overtime hours to
which he was entitled had he not been discriminated against, and states
that following the notice of compliance dated May 13, 1998, he has worked
every overtime hour offered to him. Thus, he argues that he should be
compensated by awarding him the highest amount of overtime worked by any
employee in a given pay period. We disagree, however, since overtime is
offered on a rotating basis to employees who are available when overtime
is requested. Thus, we note with approval that the agency Labor Relations
Specialist (LRS) who calculated the overtime award testified that he
followed the guidelines of ELM 436.411(a) in taking the average of
overtime worked by similarly situated employees for the period in which
petitioner was found to have been discriminated against. Although he did
not include the 3 quarters in which petitioner was not on the overtime
desired list, we agree with the agency that this was proper in that
petitioner was not contractually available for overtime opportunities
during the period when his name was not on the list. In addition, we note
that the agency did not take into account petitioner's attendance record
of at least 147 absences when he was also not available for overtime in
calculating his award. Thus, we agree with the agency that petitioner's
overtime award was fairly arrived at and that it has complied with the
first part of the Order in our appeal decision.
As to petitioner's second contention that the agency did not place him
in the regular hand case section with an accommodation of his disability
but kept him segregated, petitioner's supervisor disputes this in a
statement in response to the petition, and we find his statement credible.
The agency also includes the invoice and photo of the straight back
chair it purchased for petitioner's accommodation. We therefore find
that the agency has complied with the second part of the Order in our
appeal decision.<2>
As to the third part of the Order, we note that as part of its November
18, 1988 Compliance Report, the agency included records showing that
the RMOs attended an 8-hour training course on the subject of reasonable
accommodation. Although petitioner protests that he has not been informed
that the RMOs received any training, we note that nothing in our Order
stated that he had to be so informed. We therefore find that the agency
has also complied with the third part of the Order in our appeal decision.
Finally, we note that petitioner acknowledges that the agency has complied
with our Posting Order.
Accordingly, based on our findings as reflected above, the Commission
determines that the agency has complied with our Order set forth in EEOC
Appeal No. 01965252 (May 13, 1998), and the Petition for Enforcement is
therefore DENIED.
STATEMENT OF PETITIONER'S RIGHTS ON PETITION FOR ENFORCEMENT
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (P1199)
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:
May 18, 2000
Date Carlton M. Hadden, Acting Director
1On 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 64 Fed. Reg. 37,644 (1999), where
applicable, in deciding the present appeal. The regulations, as
amended, may also be found at the Commission's website at www.eeoc.gov.
2The Commission notes that petitioner's claim that he is being segregated
or forced to look for his chair is the subject of a new complaint
accepted by the agency, Agency No. 1B-029-0038-98, which is currently
under investigation.