) Petition No. 04990029

Equal Employment Opportunity CommissionMar 29, 2000
04990029 (E.E.O.C. Mar. 29, 2000)

04990029

03-29-2000

) Petition No. 04990029


Peggy S. Puckett v. United States Postal Service

04990029

March 29, 2000

Peggy S. Puckett, )

Petitioner, )

) Petition No. 04990029

v. ) Appeal No. 01965253

) Hearing No. 130-92-8143X

) Agency No. 3D102992

)

William J. Henderson, )

Postmaster General, )

United States Postal Service, )

(Southeast/Southwest Region), )

Agency. )

____________________________________)

DECISION ON A PETITION FOR ENFORCEMENT

By Petition dated December 14, 1998, the petitioner requested enforcement

of the Order set forth in Puckett v. USPS, EEOC Appeal No. 01965253

(September 24, 1998).<1> Pursuant to that Order, the Commission directed

the agency to comply with its April 20, 1993, final agency decision. The

Commission accepts this Petition for Enforcement pursuant to 29 C.F.R. �

1614.503. For the reasons set forth below, the Commission GRANTS the

petition.

BACKGROUND

At the time of the complaint, petitioner, who has a hearing disorder, was

employed by the agency as a Bulk Mail Clerk in the Bulk Mail Acceptance

Unit of the agency's Montgomery, Alabama postal facility. Her schedule

was 2:30 p.m. to 11:00 p.m. Petitioner requested an accommodation for

her disability, but instead the agency re-posted her job and awarded it

to another employee. Petitioner bid on and was awarded the position of

Distribution Clerk effective June 15, 1991, with the schedule of 1:30

p.m. to 11:00 p.m. Effective June 29, 1991, petitioner then successfully

bid on a Bulk Mail Clerk position with the hours of 4:30 p.m. to 1:00 a.m.

On October 5, 1991, she was reassigned to a Bulk Mail Clerk position

with the schedule 1:30 p.m. to 11:00 p.m.

At petitioner's request, a hearing was conducted by an EEOC Administrative

Judge (AJ) who determined that she was the victim of disability

discrimination. The agency adopted the AJ's findings in its April

20, 1993, final agency decision (FAD1), providing, in pertinent part,

that petitioner be awarded with "all retroactive rights and benefits"

and "backpay." Petitioner then filed an appeal with this Commission

claiming that the agency failed to comply with the terms of FAD 1.

In Puckett v. U.S. Postal Service, EEOC Appeal No. 01943477 (August 8,

1994), we determined that the record was inadequate to decide whether

the agency had complied with FAD 1, and Remanded the case back to the

agency for an investigation. The Commission also Ordered the agency to

comply with FAD 1 and to issue a final agency decision to document its

compliance with the Order.

Petitioner filed a Petition for Enforcement in May 1995, and in Puckett

v. U.S. Postal Service, EEOC Petition No. 04950021 (May 3, 1996),

we determined that the agency did not comply with the Order in EEOC

Appeal No. 01943477 because it failed to issue a final agency decision.

We Ordered the agency to issue a final agency decision setting forth:

specific determinations regarding each element of relief in the April 20,

1993 final agency decision; specific computations regarding backpay;

specific and complete descriptions of each item of corrective action;

an explanation of the reasoning used in these determinations; and appeal

rights to the Commission. The agency responded by issuing a final agency

decision on June 4, 1996.

Petitioner then appealed the June 4, 1996, final agency decision,

claiming that the award of backpay was inadequate,<2> and that she was

entitled to administrative leave and overtime pay for the variation

between her original work schedule (2:30 p.m. to 11:00 p.m.) and the

shifts she was required to work in her subsequent positions from June 15,

1991, to October 4, 1991. More specifically, petitioner argued that she

was entitled to administrative leave at a "straight time" rate for the

hours of 2:30 to 4:30 p.m. (which she would have worked had she retained

her original position) and an "overtime" rate for the hours after 11:00

p.m., resulting in pay for ten hours per day instead of the eight hours

she actually worked. In Puckett v. U.S. Postal Service, EEOC Appeal

No. 01965253 (September 24, 1998), we determined that petitioner's

requested remedy would have provided her with more compensation than

she would have received had the discrimination not occurred, and that

"overtime" pay was not warranted. However, we found that the agency

provided its employees with extra compensation for working outside of

their bid schedule ("out-of-schedule" pay),<3> and held that petitioner

was entitled to this as a remedy. Specifically, we ordered the agency to

issue a check to petitioner: "reflecting the appropriate out-of-schedule

pay for each shift she was required to work outside of her original 2:30

p.m. to 11:00 p.m. shift, commencing on June 15, 1991, and continuing

until such time as petitioner was returned to a Bulk Mail Clerk position

with her original schedule." The agency did not file a request to

reconsider this determination. The matter was subsequently assigned to

a Commission Compliance Officer and docketed as Compliance No. 06982056.

Petitioner has now again petitioned this Commission claiming that the

agency has not complied with the Order as set forth above. Specifically,

she claims that she is entitled to the amount of $2,480.04, plus interest,

for 170.42 hours of "out-of-schedule" pay, providing an annotated table

of "administrative leave" and "overtime" hours worked during the period at

issue, referencing applicable provisions in the agency's personnel rules

and regulations to support her calculations. This table reflects that the

agency owes her $1,161.19 in overtime pay, and $2,322.25 in administrative

leave, for a total of $3,483.44, less the amount of $1,003.40 the agency

has already paid. We note that the agency received notice regarding

the instant petition on March 5, 1999, but has not responded.

Our review of the instant record shows that, exclusive of petitioner's

exhibit table, there is no evidence indicating what amount was actually

issued to petitioner pursuant to the above Order, and no explanation

or calculations explaining the amount paid to petitioner. Because the

agency has failed to respond to the petition, there is no evidence or

argument of record to rebut petitioner's claim for the amount requested.

Therefore, we find that the agency has not complied with the Order set

forth in EEOC Appeal No. 01965253 regarding out-of-schedule pay to be

issued to petitioner as a remedy in this case.

Notwithstanding this finding, we note that petitioner has included in

her calculations amounts for "overtime" pay. As previously noted, in

EEOC Appeal No. 01965253, we specifically found that petitioner was not

entitled to overtime pay as part of the out-of-schedule pay remedy.<4>

Therefore, this amount is excluded. However, we find that petitioner

is entitled to the amount of administrative leave for out-of-schedule

hours which she has claimed, and which the agency has not challenged

($2,322.25), minus the amount already paid by the agency, as reflected

in her exhibit table ($1,003.40), for a total $1,318.85.

Accordingly, we GRANT the Petition for Enforcement requested by the

petitioner in this case, and we ORDER the agency to comply with the

Commission's Order in EEOC Appeal No. 01965253 by taking the following

corrective actions:

ORDER (C1199)

The agency is ORDERED to take the following remedial action:

To the extent that it has not already done so, within 15 days of the

date that this decision becomes final, we ORDER the agency to issue

petitioner a check in the amount of $1,318.85, plus interest dating back

to June 1991.

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

complainant. If the agency does not comply with the Commission's order,

the complainant may petition the Commission for enforcement of the order.

29 C.F.R. � 1614.503(a). The complainant 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 complainant 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 complainant 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).

COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (R1199)

This is a decision requiring the agency to continue its administrative

processing of your complaint. However, if you wish to file a civil

action, you have the right to file such action in an appropriate United

States District Court WITHIN NINETY (90) CALENDAR DAYS from the date

that you receive this decision. In the alternative, you may file a

civil action AFTER ONE HUNDRED AND EIGHTY (180) CALENDAR DAYS of the date

you filed your complaint with the agency, or filed your appeal with the

Commission. 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 (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:

March 29, 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 complainant, complainant's representative

(if applicable), and the agency on:

_______________ __________________________

Date Equal Employment Assistant

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.

2Petitioner also appealed the agency decision regarding the type of

accommodation it afforded her. However, this issue is not part of the

instant Petition and will not be addressed herein.

3Although according to the agency's personnel regulations certain

out-of-schedule pay scenarios can result in overtime pay, our decision

in this case specifically found that overtime pay was not an appropriate

remedy, and cannot be included in the out-of-schedule pay premium for

the purposes of designating a remedy in this case.

4In her petition, petitioner designated seven days with $154.56 of

"overtime" each (for a total of $1,081.92), plus an additional $77.27 of

overtime, for a grand total $1,159.19. We note that petition reflects

a mathematical error of +$2.00 in her grand total of $1,161.19.