[Redacted], Nila S., 1 Petitioner,v.Louis DeJoy, Postmaster General, United States Postal Service (Pacific Area), Agency.

Equal Employment Opportunity Commission

Mar 18, 2021

Appeal No. 0120181650 (E.E.O.C. Mar. 18, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Nila S.,1 Petitioner, v. Louis DeJoy, Postmaster General, United States Postal Service (Pacific Area), Agency. Petition No. 2020004449 Appeal No. 0120181650 Agency No. 1F927009115 DECISION ON A PETITION FOR CLARIFICATION On March 1, 2020, the Equal Employment Opportunity Commission (EEOC or Commission), on its own initiative pursuant to 29 C.F.R. § 1614.503(c), docketed this petition for clarification to examine the enforcement of our Order set forth in EEOC Appeal No. 0120181650 (September 26, 2018). During EEOC’s compliance monitoring efforts, Petitioner has alleged that the Agency has failed to fully comply with the Commission’s Order to reinstate Petitioner to employment at the Postal Service and to determine the appropriate amount of back pay due Petitioner. BACKGROUND On January 10, 2018, Complainant and the Agency entered into a settlement agreement to resolve an EEO matter. The settlement agreement provided, in pertinent part, that: 1 This case has been randomly assigned a pseudonym which will replace Petitioner’s name when the decision is published to non-parties and the Commission’s website. 2020004449 2 1. (a) Complainant shall be reinstated to the Postal Service. (b) Human Resources shall send Complainant an email no later than January 11, 2016, containing a job offer contingent upon meeting all USPS pre- hiring requirements, including, but not limited to a clean driving record, qualifying drug test, background check and passing medical assessment. Complainant’s duty location shall be the Rialto, CA Post Office and the tentative re-hire date of February 5, 2018. (c) Complainant shall be treated as a new hire, shall attend the orientation training, and is subject to all employment conditions afforded to new hires, including, but not limited to, the mandatory probationary period. By letter to the Agency dated January 29, 2018, Complainant alleged that the Agency was in breach of the settlement agreement. Specifically, Complainant alleged that the Agency failed to provide her with a job offer by the January 11, 2017, and later did not reinstate her because it claimed she did not meet one of the pre-hiring requirements (a clean driving record). The Agency issued a decision concluding it was not in breach of the agreement. It determined it had provided Complainant with a contingent job offer, albeit one day late on January 12, 2016. The job offer was for a City Carrier Assistant (CCA) position with eligibility requirements which included Complainant having a documented driving history for at least two years that met the Agency’s driving suitability requirement. The Agency found Complainant did not get her driving license renewed after a suspension until June 16, 2016. The Agency reasoned that Complainant would not be eligible (under the two-year requirement) for a driving position until June 16, 2018. This, according to the Agency, made her ineligible for the CCA position offered to her on January 12, 2018. In EEOC Appeal No. 0120181650, we determined that a fair reading of the provisions of the settlement agreement indicated that the Agency had an ongoing obligation to reinstate Complainant to employment, although the effective date of the reinstatement was contingent on her meeting the pre-hiring qualification requirements. The only pre-hiring requirement at issue was the clean driving record rule, and both parties agreed that Complainant met that requirement by no later than June 16, 2018. Therefore, we concluded that the Agency had an obligation to reinstate Complainant to employment under the terms of the agreement effective on June 16, 2018. As such, we ordered as follows: 1. Within thirty (30) calendar days of the date this decision is issued, the Agency shall reinstate Complainant to employment at the Postal Service retroactive to June 16, 2018. 2. In accordance with our finding that the Agency breached its obligation to reinstate Complainant as of June 16, 2018, the Agency shall determine the appropriate amount of back pay, with interest, and other benefits due Complainant, pursuant to the terms of the Agreement and 29 C.F.R. 2020004449 3 § 1614.501, no later than sixty (60) calendar days after the date this decision was issued. Complainant 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 Complainant for the undisputed amount within sixty (60) calendar days of the date the Agency determines the amount it believes to be due. The Complainant 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." The monitoring of compliance with our Order in EEOC Appeal No. 0120181650 was assigned to an EEOC Compliance Officer. By March 2020, the parties were deadlocked in their discussions regarding the Agency’s compliance with the Order, including the title of the position to which Petitioner was to be reinstated. Therefore, we have, on our own initiative, docketed the instant petition to clarify the terms of our Order. ANALYSIS Reinstatement Consistent with the terms of the settlement agreement, EEOC’s Order in Appeal No. 0120181650 specified that the Agency had to reinstate Petitioner to employment at the Postal Services retroactive to June 16, 2018.2 Neither the Order, nor the parties’ Agreement, specified the exact position to which Petitioner was to be reinstated.3 The Agreement did not preclude any positions. The Order and Agreement specifically referenced only one location, which was the Rialto, California, Post Office. In response to the Order, the Agency provided Petitioner with a contingent job offer to the position of City Carrier Associate (CCA) in Rialto, California. This location is part of the Agency’s San Diego District. On June 28, 2019, Petitioner’s attorney responded to the job offer, stating the job offer of a City Carrier Associate (CCA) position in Rialto, California, did not meet the requirements of the EEOC’s Order. 3 In her underlying EEO complaint, Petitioner had identified her position as Mail Handler at the City of Industry Processing and Distribution Center. The EEO Investigative Report also listed her position as Mail Handler. The parties’ settlement agreement, however, was silent as to the position to which Petitioner was to be reinstated. Consequently, our Order did not reference a specific job title. 2020004449 4 Petitioner’s attorney asked the Agency to look for Mail Handler positions at the City of Industry Plant or Alhambra locations, which are located in the Agency’s Santa Ana District, and not the San Diego District, where the Rialto position is located. Petitioner’s attorney now maintains the Agency should provide Petitioner with a position, within or near Montclair, California, where Petitioner currently resides. On July 24, 2019, the Agency notified Petitioner that it was complying with the Order and again provided the contingent job offer as a City Carrier Associate in Rialto, California. The Agency again stated that this was in compliance with the express terms of the settlement agreement. Petitioner informed the Agency that the contingent job offer as a City Carrier Associate was not acceptable due to Complainant’s disability. We hereby clarify that our Order did not indicate that Petitioner was to be reinstated to a specific position and, therefore, the Agency’s offer of the City Carrier Associate position complied with our Order in Appeal No. 0120181650. Moreover, and consistent with the terms of the settlement agreement, our Order specified the city. The Agency only had to offer that city, and, therefore, the Agency’s offer to the Rialto location complied with our Order. Back Pay The Agency stated it conducted a wage inquiry in order to determine back pay based on the Rialto City Carrier Associate position for the time period June 16, 2018 to June 27, 2019, which was the date Petitioner’s attorney refused the job offer at Rialto.4 However, back pay has not been paid because it appears that the parties remain embroiled in a dispute regarding a number of issues, including the position title at issue, the location, and the back-pay end date. On processing forms sent by the Agency to Petitioner, she changed the back- pay end date from June 27, 2019 to “TBD.” We now clarify for the parties that the end date for back pay is June 27, 2019, which was the date on which Petitioner declined the City Carrier Associate job offer in Rialto. There is also an issue, impacting the calculations, regarding whether or not Petitioner intended to participate in TSP. After she submitted inconsistent responses, the Agency advised her that her responses needed to be consistent in the processing forms. Complainant will need to correct these inconsistencies. Attorney’s Fees 4 The Agency mailed a PS-Form 8038 for Petitioner to complete and return to begin the back-pay process. The Agency now states the position title on the PS-Form 8038 that it sent to Complainant “was listed as Mail Handler in error.” The Agency says the form should have listed the position as City Carrier Associate, because that is the position she would have been hired for in Rialto, as per the settlement, had she accepted it. 2020004449 5 Finally, our decision stated that if Petitioner was represented by an attorney, she was entitled to an award of reasonable attorney’s fees incurred regarding the breach claim, on which she prevailed. Complainant’s attorney submitted a fee request on October 29, 2018, and another on May 23, 2019, for attorney fees. On July 24, 2019, the Agency requested further information. Specifically, the Agency requested an affidavit and an itemization to support the fee requests. As of the date this Petition was docketed, that information had not been provided. We now clarify that, based on our rationale for awarding attorney’s fees in the first place in EEOC Appeal No. 0120181650, Petitioner’s entitlement to reasonable attorney’s fees shall end on the date she declined to accept the Agency’s offer of employment (July 27, 2019). New Issues Outside the Scope of the Settlement Agreement Finally, we would be remiss if we did not address the fact that it appears that some of the confusion stems from an argument that Petitioner is entitled to full make-whole relief because she was not offered a Mail Handler position. This argument is misplaced. Our order in EEOC Appeal No. 0120181650 did not result from a finding of liability or discrimination. On the contrary, the settlement agreement made clear that the Agency was not admitting liability. Instead, the relief ordered here comes directly and solely from the terms of the January 10, 2018 settlement agreement between the parties. We note that Petitioner appears to now be raising new retaliation and disability claims. On July 30, 2019, Petitioner’s attorney requested that Petitioner be referred to the District Reasonable Accommodation Committee (DRAC) in the San Diego District.5 She now also claims retaliation pertaining to the Agency’s responses to her requests that the Agency consider other positions closer to the location where Petitioner now resides. To the extent that Petitioner wishes to raise any new claims or issues, such as a denial of reasonable accommodation, Petitioner may bring those new issues to the attention of an EEO counselor because those matters are outside the scope of our prior Order and the parties’ January 10, 2018 settlement agreement. CONCLUSION Based on the clarifications provided in this decision, we are REMANDING this matter back to the Agency for further processing in compliance with the following Order. 5 A San Diego District DRAC meeting was scheduled, but Complainant’s attorney cancelled the meeting indicating that Petitioner was requesting a reasonable accommodation in the Santa Ana District, where Petitioner now lives. 2020004449 6 ORDER 1. Within sixty (60) calendar days of the date of this decision, to the extent it has not already done so, we order the Agency to provide Petitioner with the back pay award ordered in EEOC Appeal No. 0120181650 based on calculations for the offered City Carrier Associate position at the Rialto, California Post Office for the time period of June 16, 2018 to June 27, 2019. If requested by the Agency, Petitioner shall cooperate by promptly submitting any necessary forms. In making the calculations, the Agency shall request that Petitioner clarify the TSP issue. If Petitioner does not respond by the due date given, the Agency shall assume she did not wish to participate in TSP for the back pay period. 2. Within thirty (30) calendar days of the date of this decision, unless already submitted, we direct the Petitioner to submit to the Agency the information requested in support of her petition for attorney’s fees and costs, namely the itemization and affidavit(s), as required by 29 C.F.R. § 1614.501(e)(2). Failure to meet this deadline shall result in the forfeiture of the attorney’s fee award. Within sixty (60) days of receipt of the itemization and affidavit(s), the Agency shall issue the attorney’s fee award. In calculating this award, Petitioner shall be entitled to reasonable attorney fees up to the date on which she declined the job offer (June 27, 2019). IMPLEMENTATION OF THE COMMISSION’S DECISION (K0719) Under 29 C.F.R. § 1614.405(c) and § 1614.502, compliance with the Commission’s corrective action is mandatory. Within seven (7) calendar days of the completion of each ordered corrective action, the Agency shall submit via the Federal Sector EEO Portal (FedSEP) supporting documents in the digital format required by the Commission, referencing the compliance docket number under which compliance was being monitored. Once all compliance is complete, the Agency shall submit via FedSEP a final compliance report in the digital format required by the Commission. See 29 C.F.R. § 1614.403(g). The Agency’s final report must contain supporting documentation when previously not uploaded, and the Agency must send a copy of all submissions to the Complainant and his/her representative. 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 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) (1994 & Supp. IV 1999). If the Complainant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R. § 1614.409. 2020004449 7 Failure by an agency to either file a compliance report or implement any of the orders set forth in this decision, without good cause shown, may result in the referral of this matter to the Office of Special Counsel pursuant to 29 C.F.R. § 1614.503(f) for enforcement by that agency. COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (R0610) 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 (Z0815) If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant’s Right to File a Civil Action for the specific time limits). FOR THE COMMISSION: ______________________________ Carlton M. Hadden’s signature Carlton M. Hadden, Director Office of Federal Operations March 18, 2021 Date