04990010
05-02-2000
) Petition No. 04990010
Charles P. Allen v. United States Postal Service
04990010
May 2, 2000
Charles P. Allen, )
Petitioner, )
) Petition No. 04990010
v. ) Appeal No. 01954091/05970672
) Agency No. 1B-065-1006-94
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
____________________________________)
DECISION ON A PETITION FOR ENFORCEMENT
The Commission docketed a petition for enforcement to examine the
enforcement of an order set forth in Charles P. Allen v. USPS, EEOC
Appeal No. 01954091 (March 27, 1997) (request for reconsideration
denied, EEOC Request No. 05970672 (June 11, 1998)).<1> This petition
for enforcement is accepted by the Commission pursuant to 29 C.F.R. �
1614.503.<2> For the reasons that follow, the Commission GRANTS the
petition for enforcement.
Petitioner claims that the agency failed to fully comply with the
Commission's order regarding backpay as set forth in either of the
Commission's decisions. In his statement, petitioner's representative
relates his attempts to contact the agency to ascertain the status
of its processing of the backpay award, but received no response.
Therefore, because the agency did not respond to these inquiries, and
because petitioner did not receive a backpay award, petitioner filed
the instant petition for enforcement.
In its response, dated December 3, 1998, the agency indicated that it
investigated the matter and determined that petitioner was entitled to
backpay from September 12, 1993, until January 1, 1995, noting that he was
in Leave Without Pay (LWOP) status during this time due to discrimination.
The agency also indicated that it would compensate petitioner accordingly.
On April 10, 2000, upon the request of the Commission to the agency to
provide documentation verifying payment of the backpay award at issue,
the agency submitted copies of petitioner's pay statements with the
explanation that petitioner received his backpay award via his pay
check(s). However, our review of these pay statements merely reflects
that petitioner was paid the gross salary amount of $693.06 for pay period
19 in 1993, but was in LWOP status from this point until January 1995,
receiving no payment from the agency, salary or otherwise. There is no
evidence that the agency calculated or paid the backpay award at issue.
Therefore, because the agency has failed to submit any evidence to
document that it calculated the amount of backpay with interest and
benefits owed petitioner under the prior two Commission orders, or that
it paid any amount to petitioner in satisfaction of the backpay award
at issue, we find that the agency has not complied fully with either of
these orders.
Accordingly, the Commission hereby GRANTS the petition for enforcement
and now orders the agency to comply with the backpay orders in 01954091
and 05970672 by taking the actions set forth in the Order below.
The Commission advises the agency that, should it fail to implement the
Order below and submit a compliance report as required (see, infra,
Implementation of the Commission's Decision) the Director, Office of
Federal Operations, shall submit appropriate findings and recommendations
for enforcement to the Commission (29 C.F.R. �1614.503(d)) and that the
Commission may issue a notice to the head of the agency to show cause
why there is noncompliance and request that the head of the agency or a
representative appear before the Commission or to respond in writing with
adequate evidence of compliance (29 C.F.R. �1614.503(e)). Finally, where
appropriate and pursuant to the terms of a memorandum of understanding,
the Commission may refer the matter to the Office of Special Counsel
for enforcement action. 29 C.F.R. �1614.503(f).
ORDER (C1199)
The agency is ORDERED to take the following remedial action:
Within 30 days of the date this decision becomes final, we ORDER
the agency to calculate and pay petitioner backpay with interest and
other benefits consistent with our prior decisions and the instant
determination. Petitioner must cooperate in the agency's efforts to
compute the amount of backpay and benefits due, and to provide all
relevant information requested by the agency. If there is a dispute
regarding the exact amount of backpay and/or benefits the agency will
issue a check to petitioner for the undisputed amount within 10 days
of the date the agency determines the amount it believes to be due.
Petitioner may again petition for enforcement or clarification of the
amount in dispute. The petition for clarification or enforcement must
be filed with the Compliance Officer, at the address referenced in the
statement entitled "Implementation of the Commission's Decision."
The agency is further directed to submit a report of compliance, as
provided in the statement entitled "Implementation of the Commission's
Decision." The report shall include supporting documentation verifying
that the corrective action has been implemented.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K1199)
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
petitioner. If the agency does not comply with the Commission's order,
the petitioner may petition the Commission for enforcement of the order.
29 C.F.R. � 1614.503(a). The petitioner 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 64
Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. �� 1614.407, 1614.408), and 29 C.F.R. �
1614.503(g). Alternatively, the petitioner 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)(Supp. V 1993). If the petitioner files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 64 Fed. Reg. 37,644, 37,659 (1999)
(to be codified and hereinafter referred to as 29 C.F.R. � 1614.409).
PETITIONERS' RIGHT TO FILE A CIVIL ACTION (P0400)
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 2, 2000
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing. I certify that
the decision was mailed to petitioner, petitioner's representative
(if applicable), and the agency on:
_______________ __________________________
Date Equal Employment Assistant
1In Charles P. Allen v. USPS, EEOC Appeal No. 01954091 (March 27, 1997),
the Commission found disability discrimination upon the determination
that: petitioner was a qualified individual with a disability under the
Rehabilitation Act; that his absences were related to his disability; and,
that the agency failed to provide him with a reasonable accommodation.
The agency filed a Request for Reconsideration, which was denied by the
Commission. However, the Commission exercised its discretion to
reconsider and modify the relief ordered in the prior decision, finding
that petitioner was entitled to compensatory damages. Both decisions
ordered the agency to award petitioner backpay with interest and other
benefits.
2On 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.