04990037
04-21-2000
) Petition No. 04970004
Timothy W. Howell v. United States Postal Service
04990037
April 21, 2000
Timothy W. Howell, )
Petitioner, )
)
v. ) Petition No. 04990037
) Petition No. 04970004
William J. Henderson, ) Appeal No. 01942803
Postmaster General, )
United States Postal Service, )
Agency. )
)
DECISION ON PETITION FOR ENFORCEMENT
On May 18, 1999, the Commission docketed the instant petition filed
by Timothy W. Howell (hereinafter referred to as petitioner) with
the Equal Employment Opportunity Commission (EEOC or Commission).
Petitioner requested enforcement of the order for remedial relief set
forth in Timothy W. Howell v. Marvin T. Runyon, Jr., Postmaster General,
United States Postal Service, EEOC Petition No. 04970004 (May 1, 1998).
Pursuant to that Order, the Commission directed the United States Postal
Service (hereinafter referred to as the agency) to redress petitioner
following a finding in EEOC Appeal No. 01942803 (March 31, 1995) that
agency officials had discriminated against petitioner on the basis of race
in violation of Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. �2000e et seq. This petition for enforcement is accepted by
the Commission pursuant to 29 C.F.R. �1614.503.<1>
The issue presented in this petition is whether the agency has fully
complied with the Commission's Order in EEOC Petition No. 04970004
to provide the remedial relief to petitioner ordered in EEOC Appeal
No. 01942803 (March 31, 1995), as amended.
In EEOC Petition No. 04970004, the Commission modified its Order in EEOC
Appeal No. 01942803 (March 31, 1995) and directed that the agency take
the following actions:
(A) The agency shall pay to petitioner back pay and other benefits due
for the period from his removal [on January 8, 1993] through October
24, 1993; and
(B) The agency shall offer petitioner a position as equivalent as
possible to the TE [Transitional Employee]<2> position and provide
adequate training during his probationary period under the supervision
of a manager not involved in the agency's discriminatory actions and,
to the extent possible, at a facility other than the instant facility
[in Winston-Salem, N.C.].
Back Pay
According to documents in the file, petitioner completed PS Form 8038,
Employee Statement to Recover Back Pay, wherein he asserted that he
had not sought employment during the back pay period. The agency
informed petitioner that, since he had not sought to mitigate his
damages, it would award an amount representing 45 days, only, and
denied any further back pay. Thereafter, by letter dated August 13,
1998, petitioner corrected his PS Form 8038 and submitted documents
showing that he received unemployment benefits and that he had sought
work during the back pay period. In a letter dated November 12, 1998,
the agency stated that petitioner would be awarded back pay for 45 days.
As of May 21, 1999, petitioner stated that he had received only the
amount representing the 45-day period, without interest, and had not
received any further payments.
The agency has had sufficient time since petitioner corrected PS Form 8038
in August 1998 to prepare and tender a new back pay calculation. The file
does not contain any explanation from the agency for the undue delay.
Consequently, we will direct the agency to award petitioner back pay for
the period from January 9 through October 24, 1993, plus interest from
October 1, 1998, approximately sixty days from petitioner's submission of
the corrected PS Form 8038. Further, we remind the agency that, pursuant
to the "collateral source rule," the Commission has held that unemployment
benefits may not be deducted from back pay awards. Wallis v. USPS, EEOC
Appeal No. 01950510 (November 13, 1995); see Scott v. USPS, EEOC Appeal
No. 01921641 (June 11, 1993); Collick-Brown v. Department of the Navy,
EEOC Appeal No. 01910904 (March 26, 1991).<3>
Job Placement
The record show that in the fall of 1998, petitioner was offered
an appointment as a casual clerk, NTE 359 days, in Greensboro, North
Carolina. The agency asserted that this position was the closest extant
position to the former TE position. Petitioner accepted the position
under protest, contending that it was not comparable to the TE position,
in that, the TE position had afforded more pay and accrued benefits and
opportunities. By letter dated December 23, 1998, the agency informed
petitioner that the casual clerk appointment was at the same rate of
pay as the TE position and that his employment "will continue until
you either voluntarily leave the [agency], attain a career position, or
complete 359 days of employment." In a letter dated December 1, 1999,
petitioner complained that his employment was terminated after one year.
He asserted that the Commission had ordered the agency to provide him "an
opportunity for permanent reinstatement and to obtain career employment."
Petitioner is in error, in that, he was to be afforded an opportunity
equivalent to the TE position, that is, employment for one year.<4>
Based on our review of the documents in the record, we find that the
agency has complied with Paragraph B.<5>
CONCLUSION
Based upon a thorough review of the record, consideration of the arguments
of the parties, and for the foregoing reasons, the Commission grants
this Petition for Enforcement, in part. The agency is directed to comply
with the Order, below.
ORDER
The agency is ORDERED to take the following actions in accordance with
the findings herein:
A. The agency shall pay to petitioner back pay and other benefits due for
the period from January 9, 1993, through October 24, 1993, plus interest
from October 1, 1998. The agency shall determine the appropriate amount
of back pay, including interest, and other benefits due petitioner,
pursuant to 29 C.F.R. �1614.501, no later than sixty (60) calendar
days after the date this decision is received. The petitioner shall
cooperate in the agency's efforts to compute the amount of back pay and
benefits due, and shall provide all relevant information requested by
the agency. If there is a dispute regarding the exact amount of back
pay and/or benefits, the agency shall issue a check to the petitioner
for the undisputed amount within sixty (60) calendar days of the date
the agency determines the amount it believes to be due. The petitioner
may 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."
B. 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 of the
agency's calculation of back pay and other benefits due petitioner,
including evidence that the corrective action has been implemented.
ATTORNEY'S FEES (H1199)
If petitioner has been represented by an attorney (as defined by 64
Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. �1614.501(e)(1)(iii)), he/she is entitled to
an award of reasonable attorney's fees incurred in the processing of the
complaint. 29 C.F.R. �1614.501(e). The award of attorney's fees shall
be paid by the agency. The attorney shall submit a verified statement of
fees to the agency -- not to the Equal Employment Opportunity Commission,
Office of Federal Operations -- within thirty (30) calendar days of this
decision becoming final. The agency shall then process the claim for
attorney's fees in accordance with 29 C.F.R. �1614.501.
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).
STATEMENT OF PETITIONER'S RIGHTS - ON PETITION FOR ENFORCEMENT
PETITIONER'S RIGHT TO FILE A CIVIL ACTION (Q1199)
This decision affirms the agency's final decision/action in part, but it
also requires the agency to continue its administrative processing of a
portion of your complaint. 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 on both that portion
of your complaint which the Commission has affirmed AND that portion
of the complaint which has been remanded for continued administrative
processing 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:
April 21, 2000
Date Carlton 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
1The Commission's regulations, as amended, may be found at the
Commission's website at WWW.EEOC.GOV.
2TEs were appointed to non-career, temporary positions for a period
not to exceed (NTE) 359 days and accrued no benefits or leave. The TE
position had been abolished by contractual agreement as of November 1994.
Because petitioner could not be placed in a TE letter carrier position,
we directed the agency to place petitioner in as similar a position
as possible.
3The collateral source rule is applicable where the full cost of
the disbursements are not borne by the agency but are funded through
contribution of, e.g., an insurance premium.
4Although petitioner has submitted portions of a collective bargaining
agreement dated 1992, nothing in this material shows that TEs received
the tenure or benefits as he asserted.
5To the extent that petitioner may believe that his temporary appointment
was terminated for discriminatory reasons, he is advised to contact an
EEO counselor.