) Petition No. 04990010

Equal Employment Opportunity CommissionMay 2, 2000
04990010 (E.E.O.C. May. 2, 2000)

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.