04990004
06-17-1999
v. ) Petition No. 04990004
Pietro Sansosti v. United States Postal Service
04990004
June 17, 1999
Pietro Sansosti, )
Petitioner, )
)
v. ) Petition No. 04990004
) Appeal No. 01956832
William J. Henderson, ) Agency No. 1-F-904-1003-95
Postmaster General, )
United States Postal Service,)
Agency. )
)
DECISION ON PETITION FOR ENFORCEMENT
On October 8, 1998, the Equal Employment Opportunity Commission (EEOC
or Commission) docketed a Petition for Enforcement from Pietro Sansosti
(petitioner), requesting enforcement of the Commission's order in Pietro
Sansosti v. United States Postal Service, EEOC Appeal No. 01956832
(December 16, 1997). The Petition for Enforcement was properly filed
in accordance with 29 C.F.R. �1614.503(a). For the reasons set forth
herein, the petition is DENIED.
ISSUE PRESENTED
The issue presented in this petition is whether the agency has fully
complied with the Order of the Commission set forth in EEOC Appeal
No. 01956832.
BACKGROUND
Appellant, a Supervisor, Distribution Operations, EAS-16, at the agency's
Los Angeles Bulk Mail Center, filed a complaint alleging that the
agency discriminated against him when he was not selected for lateral
reassignment from Tour II (day) to Tour I (night). In its previous
decision, the Commission found that the agency had discriminated against
appellant based on race when it selected two other supervisors from Tour
II for reassignment to Tour I. As relief, the Commission ordered the
agency to offer appellant lateral reassignment from Tour II to Tour I,
and to tender back pay and benefits.
Appellant subsequently filed the instant petition for enforcement,
alleging that the agency was not in compliance with the Commission's
Order in three respects: (1) that the agency had included the overtime
record of a third supervisor in calculating the amount of overtime back
pay due appellant, which had the effect of "diluting" the amount owing to
appellant; (2) that the agency had not tendered "out of schedule pay,"
which appellant argues he is owed for being discriminatorily assigned to
a shift other than his regular shift; and (3) that the agency failed to
provide documentation supporting its back pay calculations. The agency
responded by noting (1) that the relevant time frame for the back pay
calculation commenced August 11, 1994, and that the third supervisor was
promoted September 17, 1994; (2) that appellant was not entitled to "out
of schedule" pay, because he had not been made to work a schedule other
than his regular schedule; and (3) that although it admittedly had been
tardy in providing documentation supporting its back pay calculations,
such documentation has in fact been provided.
ANALYSIS and FINDINGS
Upon review of the record and the parties' submissions, the Commission
finds that the agency is in compliance with the Commission's Order in the
previous decision. The record reflects that the time period for which
back pay and benefits were to be calculated commenced August 11, 1994.
During that time period, a third individual was promoted to supervisor,
which affected the amount of overtime worked by all supervisors,
and consequently affected the amount of overtime back pay received by
appellant. Appellant is entitled to be made whole, not to be placed
in a better position than he would have enjoyed absent discrimination.
See, e.g., Adesanya v. U.S. Postal Service, EEOC Appeal No. 01933395
(July 21, 1994). Even if appellant had not been discriminated against,
the amount of overtime available to him still would have been affected by
the assignment of a third supervisor. Accordingly, the inclusion of the
third supervisor in the overtime back pay calculations was appropriate.
Regarding the "out of schedule" (OS) pay, the record reflects that OS pay
is available when the employee is made to work a schedule other than his
or her regularly assigned schedule. Appellant has not claimed that he
is entitled to OS pay because he was made to work outside of his regular
schedule, or that he missed the opportunity to work out-of-schedule
because he was not reassigned to Tour I. Rather, appellant claims that
he is entitled to OS pay because the schedule to which he was assigned
-- and which he worked -- was not the schedule to which he should have
been assigned. Appellant has not drawn the Commission's attention to any
authority to support his entitlement to OS pay under these circumstances.
Cf. Kahout v. U.S. Postal Service, EEOC Appeal No. 01954900 (June 19,
1997) (employee wrongfully denied reassignment entitled to OS pay he
would have received if, once reassigned, he then would have been made to
work out of schedule). If appellant were to receive OS pay under these
circumstances, he would be placed in a better position than the one he
would have occupied absent discrimination. See Adesanya, EEOC Appeal
No. 01933395.
Regarding the agency's failure to provide documentation in support
of its calculations, the agency acknowledged a delay in providing
the documentation. The record reflects, however, that the agency has
provided appellant with current documentation regarding its calculations.
No further action is required.
CONCLUSION
Based upon a review of the record, and for the foregoing reasons,
appellant's petition for enforcement is DENIED.
STATEMENT OF RIGHTS - PETITION FOR ENFORCEMENT
RIGHT TO FILE A CIVIL ACTION (S0993)
It is the position of the Commission that 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.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from
the date that you receive this decision. To ensure that your civil
action is considered timely, you are advised to file it WITHIN THIRTY
(30) CALENDAR DAYS from the date that you receive this decision or
to consult an attorney concerning the applicable time period in the
jurisdiction in which your action would be filed. 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 (Z1092)
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:
June 17, 1999
Date Frances M. Hart
Executive Officer
Executive Secretariat