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

Equal Employment Opportunity Commission

Mar 8, 2021

Appeal No. 0120172696 (E.E.O.C. Mar. 8, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Stanton S.,1 Petitioner, v. Louis DeJoy, Postmaster General, United States Postal Service (Pacific Area), Agency. Petition No. 2020005207 Appeal No. 0120172696 Agency No. 4F-945-0049-16 DECISION ON A PETITION FOR ENFORCEMENT On September 16, 2020, the Equal Employment Opportunity Commission (EEOC or Commission) docketed Petitioner’s petition for enforcement to examine the enforcement of the Order set forth in EEOC Appeal No. 0120172696 (February 5, 2019). 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, which was filed on July 9, 2016, Petitioner was employed by the Agency as a Postal Support Employee (PSE) Sales & Services/Distribution Associate, P-06, at the Seven Trees Station facility in San Jose, California. In EEOC Appeal No. 0120172696, the Commission found that the Agency discriminated against Petitioner by failing to accommodate his religious (Methodist) practice to not work Sundays when: (1) he was scheduled to attend training on three consecutive Sundays - September 7, 14, and 21, 2014; (2) on October 3, 2014, he was terminated on charges stemming from not reporting for training these Sundays; and (3) based on reprisal for requesting religious accommodation when on October 30, 2014, he was terminated for failure to follow instructions 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. 2020005207 2 and unacceptable conduct in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq. The Order in EEOC Appeal No. 0120172696 directed the Agency, in relevant part, to: I. Within 60 days… the Agency shall retroactively reinstate Complainant to the position he would have held absent the unlawful discrimination/retaliation…. II. The Agency shall determine the appropriate amount of back pay, with interest and other benefits due the Complainant, pursuant to 29 C.F.R. § 1614.501, no later than… (60) … days after the date this decision was issued. The 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…. Petitioner contends that the Agency failed to reinstate him and pay him back pay. The record reflects that long prior to the above Commission decision, by letter to Complainant dated March 24, 2015, the Agency rescinded his October 3 and 30, 2014 removals, and instructed him to report to work on Monday, March 30, 2015, where he would be given duties and a work schedule. Complainant did not report to work, and in a July 9, 2015 letter of decision to him the Agency sustained its May 4, 2015 notice of proposed removal to terminate Complainant for failure to follow successive instructions to report to work on March 30, 2015, then to contact his acting manager, and then to report to work on April 10, 2015, for an investigative interview to discuss his absent without leave (AWOL) from March 30, 2015 - April 20, 2015. He was terminated effective July 15, 2015. By letter to Complainant dated July 22, 2019, the Agency advised him that the back pay period started October 25, 2014, the last day he was in pay status pending his October 30, 2014 removal and ran to March 30, 2015, because this was the date he was previously instructed to return to work. The Agency provided Complainant with an “Employee Statement to Recover Back Pay” form which solicited information relevant to calculating his back pay, such as outside employment during the back-pay period with instructions to return it by August 12, 2019. It also advised Complainant that because its July 9, 2015 decision to remove him was not overturned, he would not be reinstated. After not receiving Complainant’s back pay statement form, by letter dated August 18, 2019, the Agency followed up by reminding him that the Commission’s back pay order required him to cooperate in the Agency’s efforts to compute back pay, including providing all relevant information the Agency requested. To date, Complainant has not returned the form. 2020005207 3 On petition, Complainant disputes the back-pay period is only from October 25, 2014 to March 30, 2015. He writes that the back-pay period should start on October 22, 2014, because this was his last day he worked, and continue until he is reinstated, which has not happened. Petitioner questions the “so-called third Removal supposedly issued on July 9th, 2015”, notes that the Agency letter referring to it did not identify who issued the “so-called phantom third Removal”, and questions the authority of whoever allegedly did so. ANALYSIS AND FINDINGS As an initial matter there is insufficient information in the record on whether the back pay period should start on October 22, 2014, the date Complainant writes was his last day at work, or October 25, 2014, the date the Agency writes was the last day he was in pay status pending the October 30, 2014 removal. The Agency needs to supplement the record with documentation relevant to determining the proper start date. Complainant raised his July 15, 2015 termination with an EEO counselor on April 4, 2016. Interpreting this as part of Complainant’s July 9, 2016 EEO complaint, along with the October 3 and 30, 2014 removals, the Agency accepted the October 3 and 30, 2014 removals which had been unmixed after being rejected by the Merit Systems Protection Board (MSPB), and dismissed the July 15, 2015 removal for failure to timely initiate EEO counseling. Copies of the July 15, 2015 termination decision and the May 4, 2015 notice of proposal to remove which it sustained are in the underlying report of investigation (ROI) in this case, which Complainant received in May 2017. In a July 6, 2017 final Agency decision (FAD), the Agency incorporated its August 25, 2016 dismissal. In his appeal of this FAD (EEOC Appeal No. 0120172696) Complainant did not discuss the Agency’s dismissal of his July 2015 termination claim. Hence the Commission’s decision in EEOC Appeal No. 0120172696, which contains the order Petitioner now seeks to enforce, did not address the July 2015 termination. Again, the Order in EEOC Appeal No. 0120172696 directed the Agency to retroactively reinstate Complainant to the position he would have held absent the unlawful discrimination/retaliation, i.e., the October 3 and 30, 2014 removals. Because Complainant was subsequently removed effective July 15, 2015, and this has not been overturned, compliance with the order means reinstating him on paper retroactive to the effective date he was removed in connection with the October 3 and 30, 2014 removal notices up to his third removal on July 15, 2015. The Agency is not required, under the order in EEOC Appeal No. 0120172696 to ignore Complainant’s July 15, 2015 removal and offer to return him to work. Likewise, we disagree with Complainant that he is entitled to back pay up until the effective date the Agency offers to return him to work. Instead, the back-pay period runs up to March 30, 2015, the date the Agency charged Complainant in the July 2015 removal decision that he started his AWOL since the removal decision has not been overturned. 2020005207 4 The Agency has been unable to calculate back pay because Complainant, despite being directed to do so by August 12, 2019, has not returned his back-pay statement form to the Agency. Because this delay in calculating back pay is Complainant’s fault, we find that after September 26, 2019 (a reasonable amount of time to calculate back pay after Complainant’s back pay statement was due), interest on Complainant’s back pay and benefits stops accumulating. ORDER To the extent it has not already done so, the Agency shall amend Complainant’s official personnel record to reflect that he was reinstated to the job he would have had but for the October 3 and 30, 2014 removals up to July 15, 2015, the effective date of his third removal. This order does not require the Agency to offer to return Complainant to work. The back-pay period starts on October 22, 23, 24 or 25 and continues to March 30, 2015. The Agency shall supplement its back-pay calculations with documentation supporting the date in October 2014, it determines is the start of the back-pay period. The Agency shall in writing provide Complainant another opportunity to submit a completed Employee Statement to Recover Back Pay, and then determine the appropriate amount of back pay, with interest and other benefits due him, pursuant to 29 C.F.R. § 1614.501 and this decision. In accordance with this decision, interest on Complainant’s back pay and benefits stopped accumulating on September 26, 2019. The Agency shall complete the actions in this order within 60 calendar days of the date of this decision. 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. 2020005207 5 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 (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 (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 8, 2021 Date