04980036
11-02-1999
) Petition No. 04980036
Steven Miller v. United States Postal Service
04980036
November 2, 1999
Steven Miller, )
Petitioner )
) Petition No. 04980036
v. ) Appeal No. 01953542
) Agency No. 4E-2168-93
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
)
)
DECISION ON PETITION FOR ENFORCEMENT
INTRODUCTION
The petitioner filed a petition for enforcement of the Commission's
Order for remedial action in Steven A. Miller v. United States Postal
Service, EEOC Appeal No. 01953542 ((August 26, 1997). The petition
for enforcement is accepted by the Commission pursuant to 29 C.F.R. �
1614.503.
ISSUE PRESENTED
Whether the agency fully complied with the Commissioner's Order for
relief in EEOC Appeal No. 01953542.
BACKGROUND
In EEOC Appeal No. 01953542, the Commission found that the agency
discriminated against the petitioner based on his disability when it
terminated him from his position as a casual employee at its Phoenix,
Arizona facility. We ordered remedial relief fashioned closely after
the Administrative Judge's recommended corrective actions as follows:
1) immediately make appellant an unconditional offer of a casual position
at the Phoenix, Arizona post office or a substantially equivalent
position, to begin in calendar year 1995, and provide all backpay
and other benefits to which appellant would have been entitled had he
continued in his casual position until its expiration in June 1993,
and had been given at least two additional casual appointments; and
2) reimburse appellant for all costs, including attorneys fees, if any.
(Order dated August 27, 1997).
The appellant alleges that the agency has not complied with the
Commission's Order because it failed to award him back pay up until the
time of his finding new employment outside of the agency in September
1995. The agency contends in its compliance report and in response to
the petition that it has fully complied with the Commission's Order.
The agency argues that its compliance is complete because it paid
the appellant backpay equal to the pay he lost on being terminated
to the end of his appointment in June 1993 plus the equivalent of two
additional casual appointments as provided in the order. In addition,
the agency made the petitioner an unconditional offer of employment as
a casual employee in October 1997.
ANALYSIS AND FINDINGS
Under 29 C.F.R. �1614.501 et. seq., when the Commission finds that
an employee has been discriminated against, the agency shall provide
full relief. In this case the agency has been directed to make the
petitioner "whole" by offering him placement in the position he would
have been in were it not for the unlawful discrimination. Franks v.
Bowman Transportation Co., 424 U.S. 747, 764); See also, Albemarle
Paper Co. v. Moody, 422 U.S. 405,418 (1975). Based on this principle,
the petitioner is entitled to backpay equal to what was lost from the
time he was fired until such time as he was reinstated less what was
actually earned from other employment during that period of time.
In this request for enforcement, the petitioner contends that the agency
has failed to comply with the backpay portions of the Commission's Order.
Based on our review of the record, including the compliance report,
the parties' statements and the record on appeal, we agree with the
petitioner that the agency has not fully complied with the Order.
The agency's compliance report reflects that the petitioner was paid
for two additional appointments as a casual employee which essentially
represents backpay for the time period of 1994, the year the petitioner
was eligible for reappointment as a casual employee before being fired,
plus the balance of his appointment aborted early by his termination. <1>
This stops well short of the agency's duty as contemplated by the Order's
language. The language anticipated that the correct calculation of
backpay warranted more than the original two appointments ordered by the
Administrative Judge and should account for the additional time spent
on appeal. Otherwise, the petitioner would be penalized for the time
the agency refused to implement the AJ's Recommended Order and the time
he was forced to appeal the agency's final decision.
Consequently, we find that the agency is responsible for backpay equal
to the total number of casual appointments allowable in a calendar
year from the time the discrimination occurred in 1993 until the time
the petitioner was actually offered reinstatement on October 8, 1997.
This amount is to be reduced by any interim pay the petitioner received
from both his full-time and part-time employment during this time period.
CONCLUSION
Based on a thorough review of the record and the submissions of the
parties, the Commission grants the petition for enforcement.
There is no further right of administrative appeal from this decision.
ORDER
The agency is ORDERED to comply with the Commission's prior order in
EEOC Appeal No. 01953542 and as consistent with this Order no later
than forty-five (45) calendar days after the agency's receipt of this
Order and provide the following:
1)provide the petitioner and the EEOC's compliance officer detailed
information regarding its calculation of backpay and benefits.
The supporting documentation shall include the following information: a)
the pay petitioner should have received as a casual employee and actual
earnings petitioner received during the relevant time period; b) a
recalculation of the petitioner's backpay consistent with this decision.
STATEMENT OF PETITIONER'S RIGHTS ON PETITION FOR ENFORCEMENT
RIGHT TO FILE A CIVIL ACTION (R0993)
This decision of the Commission is final, and there is no further right
of administrative appeal. You have the right to file a civil action
in the appropriate United States District Court. It is the position
of the Commission that 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. You should be aware,
however, that courts in some jurisdictions have interpreted the Civil
Rights Act of 1991 in a manner suggesting that a civil action must be
filed WITHIN THIRTY (30) CALENDAR DAYS from the date that you receive
this decision. To ensure that your civil action is considered timely,
you are advised to file it WITHIN THIRTY (30) CALENDAR DAYS from the date
that you receive this decision or to consult an attorney concerning the
applicable time period in the jurisdiction in which your action would
be filed. 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 (Z1092)
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:
11/2/99
DATE Frances M. Hart, Executive Officer
Executive Secretariat
1Under the agency's Collective Bargaining Agreement, "Casuals are limited
to two ninety day terms of casual employment in a calendar year.