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