0420130024
10-31-2014
Petitioner v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Eastern Area), Agency.
Petitioner
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Eastern Area),
Agency.
Petition No. 0420130024
Appeal Nos. 0120060714
0120080116
0120110901
Agency Nos. 4C-430-0057-03
4C-430-0001-03
Hearing No. 220-A3-5215X
DECISION ON A PETITION FOR ENFORCEMENT
On July 10, 2013, the Equal Employment Opportunity Commission (EEOC or Commission) docketed a petition for enforcement to examine the enforcement of an Order set forth in Appeal No. 9129969714 (April 20, 2007). The Commission accepts this petition for enforcement pursuant to 29 C.F.R. � 1614.503.
BACKGROUND
At the time of events giving rise to this complaint, Petitioner worked as a Window Clerk at the Agency's Carrier Unit in Gahanna, Ohio. Petitioner filed a complaint in which she alleged that the Agency discriminated against her on the bases of disability and in reprisal for prior protected EEO activity, in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq., when:
1. On September 9, 2002, Petitioner received a Notice of Removal for "Unsatisfactory Attendance/Improper Conduct;"
2. From February 5, 2003, to the present, the Agency failed to accommodate Petitioner's medical restrictions and return her to duty; and
3. On March 17, 2003, the Agency issued Petitioner a Notice of Separation because of her disability.
After an investigation of the complaint, an EEOC Administrative Judge (AJ) held a hearing on the matter. On June 17, 2005, the AJ issued a decision that found that Petitioner proved that she was subjected to unlawful discrimination as alleged. Specifically, the AJ concluded that the Agency failed to take reasonable steps to accommodate Petitioner and discriminated against her on the basis of disability when it issued her separation notices in 2002 and 2003. The AJ ordered the Agency to award Petitioner compensatory damages.
The Agency's Final Order
On September 12, 2005, the Agency issued a final order that fully adopted the AJ's finding that Petitioner was subjected to unlawful discrimination. The final order also stated that the Agency would determine the appropriate amount of back pay, interest, and other benefits due Petitioner from September 9, 2002, until the present. The final order awarded Petitioner compensatory damages in the amount of $10,000.
The Commission's Appellate Decision in EEOC Appeal No. 0120060714
Petitioner appealed the Agency's final order to the Commission. Petitioner argued that the Agency erred in its determination of her entitlement to compensatory damages and requested that the matter be remanded to the AJ for a hearing on damages. In its appellate decision, the Commission affirmed the Agency's finding of discrimination. The Commission also determined that the record did not contain sufficient evidence regarding the award of compensatory damages and remanded the matter to the Agency for further development of the record on that issue. EEOC Appeal No. 0120060714 (Apr. 20, 2007).
Additionally, the Commission ordered the Agency to undertake the following actions: reinstate Petitioner as a Window Clerk, or a substantially equivalent position, retroactive to the date on which Petitioner's employment was terminated; determine the appropriate amount of back pay with interest and other benefits due Petitioner from September 9, 2002, to the present; amend its personnel records to expunge any and all references to the removal actions to which it subjected Petitioner; provide eight hours of EEO training for the responsible management official at the Carrier Unit in Gahanna, Ohio; consider taking appropriate disciplinary action against the responsible management official; and post a notice of the finding of discrimination.1
The Agency's Final Decision (Damages)
Thereafter, the Agency conducted a supplemental investigation on Petitioner's claim for compensatory damages. On August 10, 2007, the Agency issued another final decision. The Agency awarded Petitioner $12,500 in non-pecuniary compensatory damages and $3,375 in pecuniary damages. The Agency rejected Petitioner's claim for pecuniary damages related to the foreclosure of her home and bankruptcy.
Petitioner also appealed this final decision. On appeal, Petitioner contended that the Agency constructively discharged her from the job. Petitioner also maintained that the Agency's back pay computations were erroneous because they did not allow her to receive back pay for the period of June 12, 2002, to October 30, 2003, on the basis that she received workers' compensation (OWCP) benefits during that period. Petitioner further maintained that she had not received any communication from the Agency that confirmed that she had been reinstated, and that the Agency had told her not to return to work. Petitioner also maintained that the Agency had not expunged references to her removal from personnel records or posted the requisite notice.
The Commission's Appellate Decision in EEOC Appeal No. 0120080116
In EEOC Appeal No. 0120080116 (August 22, 2010), the Commission found that the Agency properly determined Petitioner's entitlement to compensatory damages. The Commission further found that Petitioner was not entitled to damage awards related to the foreclosure of her home, moving expenses, bankruptcy, loss of credit, or lost wage earning capacity. The Commission also found that the Agency had complied with its orders regarding reinstatement, discipline, and the posted notice. The Commission noted that, in a June 21, 2007, affidavit, Petitioner acknowledged that she was returned to work in October 2004; a PS Form 50 revealed that Petitioner was returned to work as a Window Clerk effective October 28, 2004. However, the Commission found that the Agency had not complied with its order for the Agency to provide eight hours of training to the responsible management official. The Commission concluded that the responsible management official had received only five hours of EEO training and ordered the Agency to provide three additional hours of training to the responsible management official.
Regarding back pay, the Commission found that it was unable to determine the appropriate amount due Petitioner from the existing record, and therefore ordered the Agency to supplement the record with its back pay calculations. Finally, the Commission ordered Petitioner to resubmit her request for attorney's fees and costs because the Agency's decision did not address that issue.2
The Agency's Second Final Decision (Attorney's Fees)
Subsequently, the Agency found that Complainant's was not entitled to the requested attorney's fees and costs associated with her first appeal because she was not a "prevailing party." Regarding the second appeal, the Agency further found that Complainant was only entitled to attorney's fees associated with the training issue. The Agency determined that Petitioner was entitled to $2,103 in attorney's fees and costs.
The Commission's Appellate Decision in EEOC Appeal No. 0120110901
Petitioner again appealed the matter to the Commission. In the appellate decision, the Commission noted that Petitioner did not obtain legal counsel until after the hearing was held and after the AJ issued a decision finding discrimination. EEOC Appeal No. 0120110901 (Aug. 14, 2012). The Commission concluded that the order in EEOC Appeal No. 0120060714 did not provide Petitioner with any additional benefit that she had not already obtained from the AJ and Agency decisions before she had an attorney. With regard to the second appeal, the Commission concluded that Petitioner was a prevailing party with respect to the training issue. Further, the Commission noted that the parties were ordered to work together to determine the appropriate amount of back pay, but that the Agency failed to share its calculations with Petitioner, and that Petitioner failed to complete and sign requisite forms. Therefore, the Commission found that any delay in obtaining back pay was the result of the actions of both parties; therefore, Petitioner was not a prevailing party on this issue. The Commission found that the Agency's award of attorney's fees and costs was appropriate and ordered the Agency to pay Petitioner the amount of $2,501.71 ($2,103 in fees as the prevailing party plus the cost of preparing the fee petition) for attorney's fees and costs. The matter was assigned to a Compliance Officer and docketed as Compliance No. 0620120725 on April 24, 2012.
The Petition for Enforcement
On July 10, 2013, Petitioner submitted the petition for enforcement at issue. Petitioner contends that the Agency failed to comply with our previous order because it never reinstated her to a Window Clerk position. However, Petitioner contends that, in May 2007, she requested a review of her retirement options and, in July 2007, the Agency issued her a "disability separation." Petitioner further maintains that the Agency processed her termination in October 2007, but she did not voluntarily retire.
Petitioner also maintains that the Agency did not pay her attorney's fees and costs, and that she should be considered the prevailing party with respect to her reinstatement. Additionally, Petitioner maintains that, on December 26, 2012, she submitted documentation regarding back pay for the period from September 9, 2002, until July 2007. Petitioner requests that the Agency provide an accounting for its back pay calculations that reflects any OWCP offsets, because the Agency's prior calculations did not use Department of Labor figures or include calculations for benefits such as leave or the Thrift Savings Plan. Petitioner maintains that she is not trying to receive back pay twice, but is seeking to determine if she received the "total amount of monies owed to her."
Agency's Response to the Petition for Enforcement
In response to the petition for enforcement, the Agency notes that, on April 22, 2011, it submitted a compliance report to the Commission's Compliance Officer that reflected that it had expunged the pertinent information from all records; provided more than three additional hours of EEO training to the responsible management official; issued a check to Petitioner for $27,789.83 in back pay and $18,809.95 in interest; and issued a check to Petitioner's attorney for $2,501.71 in attorney's fees and costs. The Agency also submits several documents and exhibits regarding the expungement, EEO training, and payment of back pay and attorney's fees. The Agency contends that it has complied with all the orders concerning this case.
ANALYSIS AND FINDINGS
Reinstatement
The petition for enforcement concerns only the Agency's compliance with our orders to reinstate Petitioner and to pay her back pay and attorney's fees and costs. Petitioner contends that the Agency failed to comply with our order to reinstate her to a Window Clerk position. However, we note that the same claim was previously raised by Petitioner in EEOC Appeal No. 0120080116, wherein the Commission found that the Agency had complied with our order to reinstate Petitioner. As noted in that decision, Petitioner acknowledged in a June 2007 affidavit statement that she was returned to work in October 2004, and a PS Form 50 revealed that Petitioner was returned to work as a Window Clerk effective October 28, 2004. Consequently, we will not revisit herein our finding that the Agency complied with our order to reinstate Petitioner to her Window Clerk position, nor any of the other matters on which we have already found substantial compliance by the Agency. As such, this decision will only review the remaining issues of whether the Agency has complied with our orders to pay Petitioner back pay and attorney's fees and costs.3
Back Pay
The Commission previously ordered the Agency to pay Complainant appropriate back pay with interest and benefits and to supplement the record with its back pay calculations. Petitioner requests that the Agency provide an accounting that reflects OWCP offsets. Upon review, we note that the record contains a copy of the Agency's back pay report. The report contains detailed calculations of back pay calculations September 9, 2002, until October 28, 2004, the date Petitioner has acknowledged that she was reinstated to her position. The report also reflects the Agency's specific calculations with regard to offsets for retirement, Social Security, Medicare, federal and state taxes, union dues, and OWCP earnings. Finally, the record contains a copy of a check for $27,789.93 in back pay and another check for $18,809.95 in interest. The record reflects that the Agency mailed the checks to Petitioner's address of record on April 11, 2011. The record also reveals that the detailed accounting was mailed to Petitioner's attorney on April 11, 2011, and delivered on April 13, 2011. Thus, we find that the Agency complied with our order to provide Petitioner with back pay together with interest and benefits, and to provide her a detailed account of its calculations.
Attorney's Fees
The Commission previously ordered the Agency to pay Petitioner $2,501.71 in attorney's fees and costs. The record contains a copy of a check for $2,501.71 payable to the Petitioner's attorney. The record also reflects that the check was mailed to the attorney's address of record on or about March 18, 2011. Petitioner has not provided any evidence to refute the Agency's evidence, such as a statement from the attorney declaring that he did not receive the Agency's payment. Consequently, we find that the Agency complied with our order regarding attorney's fees and costs.
CONCLUSION
Consequently, we find that the Agency has complied with our orders in EEOC Appeal Nos. 0120060714, 0120080116, and 0120110901. Accordingly, the Commission hereby DENIES the petition for enforcement.
PETITIONER'S RIGHT TO FILE A CIVIL ACTION (S0610)
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. If you file a request to reconsider and also file a civil action, filing a civil action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z0610)
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 from the Court that the Court appoint an attorney to represent you and that the Court also 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 with the Court 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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
October 31, 2014
Date
1 The matter was assigned to a Compliance Officer and docketed as Compliance No. 0620070534 on April 23, 2007.
2 The matter was assigned to a Compliance Officer and docketed as Compliance No. 0620100802 on August 10, 2010.
3 We note that, although Petitioner does not challenge the Agency's contention that it provided the responsible management official with the ordered additional hours of EEO training, the record reveals that the Agency complied with this aspect our orders by providing the official with an additional six hours of EEO training.
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0420130024
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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