) Petition No. 04970004

Equal Employment Opportunity CommissionApr 21, 2000
04990037 (E.E.O.C. Apr. 21, 2000)

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.