Wardelle McClendon, Appellant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionOct 14, 1999
05981024 (E.E.O.C. Oct. 14, 1999)

05981024

10-14-1999

Wardelle McClendon, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.


Wardelle McClendon v. United States Postal Service

05981024

October 14, 1999

Wardelle McClendon, )

Appellant, )

)

v. ) Request No. 05981024

) Appeal No. 01971935

William J. Henderson, ) Agency No. 4A-070-1047-94

Postmaster General, )

United States Postal Service, )

Agency. )

___________________________________)

DECISION ON REQUEST FOR RECONSIDERATION

On August 3, 1998, appellant timely initiated a request to the Equal

Employment Opportunity Commission to reconsider the decision in Wardelle

McClendon v. William J. Henderson, Postmaster General, United States

Postal Service, EEOC Appeal No. 01971935 (July 15, 1998). On August 18,

1998, the agency timely initiated a cross-request for reconsideration

on the same decision. EEOC Regulations provide that the Commissioners

may, in their discretion, reconsider any previous Commission decision.

29 C.F.R. �1614.407(a). The party requesting reconsideration must submit

written argument or evidence which tends to establish one or more of

the following three criteria: new and material evidence is available

that was not readily available when the previous decision was issued,

29 C.F.R. �1614.407(c)(1); the previous decision involved an erroneous

interpretation of law, regulation or material fact, or misapplication of

established policy, 29 C.F.R. �1614.407(c)(2); and the previous decision

is of such exceptional nature as to have substantial precedential

implications, 29 C.F.R. �1614.407(c)(3).

After a review of appellant's request for reconsideration, the agency's

cross-request for reconsideration, the previous decision, and the

entire record, the Commission finds the agency's request fails to

meet the criteria of 29 C.F.R. �1614.407(c), and it is the decision

of the Commission to deny the agency's request. The decision of the

Commission in Appeal No. 01971935 remains the Commission's final decision

in this matter. The agency is directed to comply with the order in

Appeal No. 01971935, as reproduced below. There is no further right

of administrative appeal from a decision of the Commission on a request

for reconsideration.

ORDER (D1092)

To the extent that it has not already done so, the agency is ORDERED to

take the following remedial action:

The agency shall determine the appropriate amount of OT due appellant for

the period at issue, with interest, pursuant to 29 C.F.R. � 1614.501,

no later than sixty (60) calendar days after the date that the agency

receives this decision. The appellant shall cooperate in the agency's

efforts to compute the amount of OT, and shall provide all relevant

information requested by the agency. If there is a dispute regarding the

exact amount of OT due appellant, the agency shall issue a check to the

appellant for the undisputed amount within sixty (60) calendar days of

the date the agency determines the amount it believes to be due. The

appellant 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 agency shall conduct training for the responsible management official

(M1) and the three customer services supervisors who were found to have

discriminated against appellant by denying him OT hours in retaliation

for his prior EEO activity. The training given to these individuals shall

address their responsibilities with respect to eliminating discrimination

in the workplace and all other supervisory and managerial responsibilities

under equal employment opportunity law.

The agency shall post at its River Street and Paterson, New Jersey

facilities, 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 insure 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.

If appellant has been represented by an attorney (as defined by

29 C.F.R. � 1614.501(e)(1)(iii)), he/she is entitled to an award of

reasonable attorney's fees incurred in the processing of the complaint. 29

C.F.R. � 1614.501(e). The award of attorney's fees shall be paid by the

agency. The attorney shall submit a verified statement of fees to the

agency-not to the Equal Employment Opportunity Commission, Office of

Federal Operations-within thirty (30) calendar days of this decision

becoming final. The agency shall then process the claim for attorney's

fees in accordance with 29 C.F.R. � 1614.501.

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 appellant,

including evidence that the corrective action has been implemented.

IMPLEMENTATION OF THE COMMISSION'S DECISION (K0595)

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 appellant. If the agency does not comply with the Commission's

order, the appellant may petition the Commission for enforcement of

the order. 29 C.F.R. �1614.503 (a). The appellant 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. �� 1614.408, 1614.409, and 1614.503 (g). Alternatively,

the appellant 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. �� 1614.408 and 1614.409. 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) (Supp. V 1993). If the

appellant files a civil action, the administrative processing of the

complaint, including any petition for enforcement, will be terminated.

See 29 C.F.R. �1614.410.

RIGHT TO FILE A CIVIL ACTION (R0993)

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. 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. 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 (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:

Oct. 14, 1999

_______________ ______________________________

Date Frances M. Hart

Executive Officer

Executive Secretariat