) Petition No. 04990026

Equal Employment Opportunity CommissionAug 7, 2000
04990026 (E.E.O.C. Aug. 7, 2000)

04990026

08-07-2000

) Petition No. 04990026


Kathy L. Teal v. United States Postal Service

04990026

August 7, 2000

Kathy L. Teal, )

Petitioner, )

) Petition No. 04990026

v. ) Appeal No. 01960092

)

William J. Henderson, )

Postmaster General, )

United States Postal Service, )

Agency. )

)

DECISION ON PETITION FOR ENFORCEMENT

Kathy L. Teal (hereinafter referred to as petitioner) filed a petition

with the Equal Employment Opportunity Commission for enforcement of the

Order set forth in Kathy L. Teal v. William J. Henderson, Postmaster

General, United States Postal Service, EEOC Appeal No. 01960092 (June

18, 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 that agency officials had discriminated

against petitioner on the bases of race/color and reprisal 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.

The issue presented herein is whether the agency has complied with the

provisions of the Order in EEOC Appeal No. 01960092.

In EEOC Appeal No. 01960092 (June 18, 1998), the Commission found that

the agency discriminated against petitioner on the bases of race/color

and reprisal when the Postmaster at the agency's Livermore, California,

facility "subjected her to harassment in order to force her from her

position."<1> p. 2. In remedy, the Commission directed the agency

to take certain actions. As stated below, we find that the agency has

complied with our Order, in part, and failed to comply, in part.

The agency was directed, inter alia, to (1) submit a report of compliance,

(2) post a notice of compliance, (3) provide attorney's fees, if any, and

(4) consider petitioner's claim for compensatory damages. Based on the

documents before us, we find that the agency has complied with (1)-(4).

The Commission received the final portions of the agency's report of

compliance on July 30, 1999, after its inquiry to the agency.<2> The

agency submitted documentation showing that it posted the Commission's

notice for two months from October 6, 1998. The record does not show,

and apparently petitioner has not sought, a payment of attorney's fees.

Finally, the agency considered petitioner's claim for compensatory

damages, issuing a final decision on October 27, 1998. Petitioner has

filed an appeal from that decision, presently pending before the

Commission as EEOC Appeal No. 01991097.

In addition, the agency was directed to comply with the following

provisions:

A. Within 30 days from the date this decision becomes final, the agency

shall assign (petitioner) to an EAS-16 supervisory position retroactive

to December 1993, when (petitioner) left the Livermore facility, to

include all seniority and other rights and benefits of employment.

The agency shall offer (petitioner) assignment to a position and

location agreeable to (petitioner) and not under the supervision of

the PM. If (petitioner) desires to return to the Livermore facility,

the agency shall assign the PM out of the facility.

B. 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 becomes final.

D. Within 60 days of the date this decision becomes final, the agency

shall restore any used sick leave and reimburse (petitioner) for all

annual leave and LWOP taken by (petitioner) that was due to the PM's

discriminatory conduct.

E. The agency is directed to provide comprehensive EEO training to the PM

with regard to his supervisory responsibilities under the equal employment

opportunity laws. The training shall address his responsibility with

respect to elimination of discrimination in the federal workplace.

The training shall place special emphasis on prevention and elimination

of discrimination on the bases of race/color and reprisal.

It is to these provisions that petitioner directs her petition, and we

discuss the agency's compliance with Paragraphs A, B, D, and E, seriatim.

Paragraph A: Petitioner's Reinstatement

In a letter dated May 21, 1999, the agency informed the Commission that

petitioner had been assigned to the Fremont Post Office. Inasmuch as

petitioner stated that she sought one of two positions at Fremont, we

find that the agency has complied with a portion of this provision of

our Order. In addition, however, our Order required that petitioner

be reinstated to an EAS-16 position, with all seniority benefits and

all other applicable rights and benefits. The agency's report does

not indicate when petitioner was reassigned, whether the position was

a permanent EAS-16 assignment, and if petitioner received all benefits,

including seniority rights. If petitioner was not assigned to a permanent

EAS-16 position within 30 days from the date that the decision became

final, the agency must compensate her for any lost wages from that date

to the date of her permanent assignment. On remand to the agency, we

will direct that it conduct a supplemental investigation to determine

when petitioner was assigned to a permanent position and whether she

obtained all rights and benefits.

Paragraph B: Back Pay

The agency was directed to pay back pay, including interest, to

petitioner. On June 10, 1999, the agency explained that it had made

the following payments to petitioner for back pay:

(pay period) GROSS PAY NET PAY

(less taxes, SSA, and other deductions)

PP 5-99 $ 9,559.53 $ 5,266.79

PP 6-99 15,373.24 9,339.75

PP 7-99 17,292.56 10,398.04

TOTAL $ 42,225.33 $ 25,004.58<3>

The agency's documentation does not reveal whether interest was included

in the money paid for back pay to petitioner. A statement found

elsewhere that petitioner was "entitled to interest on the LWOP only"

raises a further question about an interest payment. Because the record

is unclear, we will remand this matter to the agency to clarify whether

interest was included in the back pay payments.<4>

Paragraph D: Restoration of Leave

The agency was directed to restore any sick leave used and reimburse

petitioner for all annual leave and leave without pay (LWOP) taken due

to its discriminatory conduct. It appears that, as of petitioner's July

1999 paycheck, the agency has restored 143.36 hours of annual leave and

1,091.39 hours of sick leave. With regard to the LWOP, the agency paid

petitioner $3,894.39, plus $1,651.57 interest, representing 179 hours

of LWOP; this payment includes a merit increase of 2%. This appears to

coincide with petitioner's estimation of leave used. Consequently, we

find that the agency has complied with this provision of the Commission's

Order.

Paragraph E: Supervisory Training

In our decision, we directed that the Postmaster (Livermore) (PM) be given

"comprehensive EEO training" with "special emphasis on prevention and

elimination of discrimination on the bases of race/color and reprisal."

The submission by the agency shows that the PM took an 8-hour course

on June 3, 1998, entitled "Conflict/Dispute--A Positive Approach."

Another submission shows three hours of training on January 20, 1999, with

no subject identified. In the first instance, we note that the course

taken in June 1998 preceded our decision herein and cannot constitute

compliance with the subsequent order. Further, it is questionable whether

the subject matter concerned any EEO issues. Because it does not appear

that the PM has been provided any EEO-related training as directed by our

Order, we conclude that the agency has not complied with this provision.

We therefore remand this provision and redirect the agency to provide

EEO-related training to the PM.

CONCLUSION

Based upon a review of the record herein, the submissions of the parties,

and for the foregoing reasons, the Commission finds that the agency has

failed to comply with Paragraphs A, B, and E, of the Order set forth in

EEOC Appeal No. 01960092 (June 18, 1998). Therefore, the Commission

orders the agency to submit a further report of compliance or, if it

has not done so, to comply with our Order, below.

ORDER

The agency is ORDERED to conduct a supplemental investigation

in accordance with this decision to determine whether it has fully

complied with Paragraphs A, B, and E, of the Order set forth in EEOC

Appeal No. 01960092 (June 18, 1998). If the agency determines that it

has not complied with Paragraphs A, B, and E, it is directed to do so.

As part of its supplemental investigation, the agency is directed to

contact petitioner and respond to her concerns regarding implementation

of Paragraphs A, B, and E. The agency's supplemental investigation

should include, but not be limited to, the following information.

1. The agency shall explain when petitioner was assigned to a permanent

EAS-16 position, whether it was acceptable to her, and what retroactive

rights and benefits accrued to her. If petitioner was not assigned

within thirty (30) days of the date the previous decision became final,

the agency should identify all job assignments and pay levels worked by

petitioner since that date, and what remedial action it intends to take

to compensate petitioner for its delay.

2. The agency shall identify all moneys paid to petitioner in back

pay wages, all amounts withheld and the reasons therefore, and clarify

whether interest was included in each back pay payment to petitioner.

3. The agency shall explain what EEO training it has provided to the PM

and submit the syllabus for each training event. If the agency determines

that it has not provided any EEO training to the PM, it shall comply

with Paragraph E of our Order within sixty (60) days of the date this

decision is received. Further, the comprehensive EEO training provided

to the PM shall place special emphasis on prevention and elimination of

discrimination on the bases of race/color and reprisal. As part of its

submission to the EEOC's Compliance Officer, the agency shall submit

the syllabus for each training event.

D. If petitioner incurred any attorney's fees in processing this petition

for enforcement, the agency shall award such fees to petitioner, with

a copy of such payment to the EEOC's Compliance Officer.

Upon completion of its supplemental investigation, the agency must provide

the petitioner with a copy of the supplemental record. The agency must

submit its supplemental report to the Compliance Officer, as referenced

below. The petitioner may, within fifteen (15) days of receipt of the

supplemental record, submit a statement concerning the supplemental

record to the Compliance Officer.

ATTORNEY'S FEES (H1199)

If complainant 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 (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 receiv 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:

08-07-00

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 affirmed the Recommended Decision of the Administrative

Judge in EEOC Hearing Nos. 370-95-2504X and 370-95-2505X.

2If the agency has not already done so, it should immediately forward

to petitioner a copy of all documents submitted to the Commission's

Compliance Officer.

3In accordance with our Order, petitioner was properly paid this

?undisputed amount.? See Paragraph B.

4Similarly, if interest was not included in the back pay payment,

petitioner would be entitled to additional interest. Petitioner is

advised that the interest rate is based on rates established by the

Department of the Treasury.