) Petition No. 04980036

Equal Employment Opportunity CommissionNov 2, 1999
04980036 (E.E.O.C. Nov. 2, 1999)

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.