0520080211
05-30-2008
U.S. Equal Employment Opportunity Commission (E.E.O.C.) Office of Federal Operations MICHAEL OPARE-ADDO, COMPLAINANT, v. JOHN E. POTTER, POSTMASTER GENERAL, UNITED STATES POSTAL SERVICE, AGENCY.
U.S. Equal Employment Opportunity Commission (E.E.O.C.)
Office of Federal Operations
MICHAEL OPARE-ADDO, COMPLAINANT,
v.
JOHN E. POTTER, POSTMASTER GENERAL, UNITED STATES POSTAL SERVICE, AGENCY.
Request No. 0520080211
Appeal No. 0120060802
Hearing No. 210-2005-00075X
Agency No. 1J607001204
May 30, 2008
DENIAL
Complainant timely requested reconsideration of the decision in Michael Opare-Addo v. United States Postal Service, EEOC Appeal No. 0120060802 (November 20, 2007). EEOC Regulations provide that the Commission may, in its discretion, grant a request to reconsider any previous Commission decision where the requesting party demonstrates that: (1) the appellate decision involved a clearly erroneous interpretation of material fact or law; or (2) the appellate decision will have a substantial impact on the policies, practices, or operations of the agency. See 29 C.F.R. � 1614.405(b).
In his underlying complaint, complainant alleged that he was subjected to unlawful discrimination, in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq., on the bases of his national origin (Ghana) and in reprisal for prior protected EEO activity when: (1) on October 1, 2003, he was reassigned, and the agency denied his request for higher level pay; (2) following his reassignment, the agency assigned a higher pay-level employee to the position vacated by complainant: and (3) on or about August 13, 2004, complainant was informed that the position posted under vacancy announcement number 08705, for which he applied, was being reposted in order to attract a larger pool of qualified applicants. Following a hearing, an EEOC Administrative Judge (AJ) found that complainant failed to establish that he was subjected to unlawful discrimination, and the agency subsequently issued a final order affirming the AJ's decision finding no discrimination. On appeal, the Commission reversed the agency's final order with respect to claims (1) and (2), finding that complainant established that he was subjected to unlawful national origin and reprisal discrimination when he was involuntarily reassigned and denied higher level pay. With respect to claim (3), the Commission affirmed the agency's finding that complainant failed to show that its legitimate, nondiscriminatory reasons for its actions were pretextual.
In his request for reconsideration, complainant argues that the Commission erred in finding no discrimination as to claim (3). We find, however, that the Commission carefully considered all of the record evidence and arguments at the time it rendered the initial decision in question, and complainant has offered no persuasive reason why his request should be granted. Therefore, after reconsidering the previous decision and the entire record, the Commission finds that the request fails to meet the criteria of 29 C.F.R. � 1614.405(b), and it is the decision of the Commission to deny the request. The decision in EEOC Appeal No. 0120060802 remains the Commission's final decision. There is no further right of administrative appeal on the decision of the Commission on this request for reconsideration. The Commission directs the agency to take corrective action in accordance with this decision and the Order below.
ORDER
The agency is ordered to take the following remedial action:
1. Within thirty (30) calendar days of the date this decision becomes final, the agency shall retroactively reinstate complainant to his former position of Manager, Distribution Operations (MDO) at the Automation area, or another substantially equivalent and mutually agreeable position.
2. Within sixty (60) calendar days of the date this decision becomes final, the agency shall determine the appropriate amount of back pay at the EAS-24 level with interest and other benefits due complainant from the period of time he performed the duties as an MDO at the SPBS area, pursuant to 29 C.F.R. � 1614.501. If complainant is currently performing the duties of MDO at the SPBS area, then back pay should be calculated since his first day at the SPBS area until the present. 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 complainant for the undisputed amount within sixty (60) calendar days of the date the agency determines the amount it believes to be due. 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."
3. The agency shall forward the case to the Hearings Unit of the appropriate District Office for assignment of an Administrative Judge to render a determination on the issue of compensatory damages and attorney's fees, if any. Thereafter, the Administrative Judge shall issue a decision on this issue in accordance with 29 C.F.R. � 1614.109, and the agency shall issue a final action in accordance with 29 C.F.R. � 1614.110 within forty (40) days of receipt of the Administrative Judge's decision. The agency shall submit copies of the Administrative Judge's decision and the final agency action to the Compliance Officer at the address set forth below.
4. The agency is directed to provide a minimum of (8) eight hours of EEO training to all of the responsible management officials at the Cardiss Collins P&DC. The Commission does not consider training to be a disciplinary action.
5. The agency shall consider taking appropriate disciplinary action against the responsible management officials. The agency shall report its decision to the compliance officer. If the agency decides to take disciplinary action, it shall identify the action taken. If the agency decides not to take disciplinary action; it shall set forth the reason(s) for its decision not to impose discipline.
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 to complainant (if any), including evidence that the corrective action has been implemented.
POSTING ORDER (G0900)
The agency is ordered to post at its Cardiss Collins Processing and Distribution facility in Chicago, Illinois, copies of the attached notice. Copies of the notice, after being signed by the agency's duly authorized representative, shall be posted by the agency within thirty (30) calendar days of the date this decision becomes final, and shall remain posted for sixty (60) consecutive days, in conspicuous places, including all places where notices to employees are customarily posted. The agency shall take reasonable steps to ensure that said notices are not altered, defaced, or covered by any other material. The original signed notice is to be submitted to the Compliance Officer at the address cited in the paragraph entitled "Implementation of the Commission's Decision," within ten (10) calendar days of the expiration of the posting period.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0408)
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 complainant. 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.
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (R0408)
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 (Z0408)
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:
Carlton M. Hadden
Director
Office of Federal Operations
NOTICE TO EMPLOYEES POSTED BY ORDER OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
An Agency of the United States Government
This Notice is posted pursuant to an order by the United States Equal Employment Opportunity Commission dated _____________ which found that a violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq. has occurred at the Cardiss Collins Processing and Distribution Center, in Chicago, Illinois (hereinafter this facility).
Federal law requires that there be no discrimination against any employee or applicant for employment because of the person's RACE, COLOR, RELIGION, SEX, NATIONAL ORIGIN, AGE, or DISABILITY with respect to hiring, firing, promotion, compensation, or other terms, conditions or privileges of employment.
This facility was found to have violated Title VII when discriminated against an employee on the basis of national origin and in reprisal for engaging in protected EEO activity. To remedy the discrimination, the Commission has ordered the facility to reinstate complainant to his former position, pay back pay and proven compensatory damages, to pay attorney's fees, and to provide training for and consider disciplinary action against the responsible managerial and supervisory employees on their responsibilities and obligations under the federal anti-discrimination statutes. This facility will ensure that supervisors and management officials will abide by the requirements of all federal equal employment opportunity laws and will not retaliate against employees.
This facility will comply with federal law and will not in any manner restrain, interfere, coerce, or retaliate against any individual who exercises his or her right to oppose practices made unlawful by, or who participates in proceedings pursuant to, federal equal employment opportunity law.
29 C.F.R. Part 1614