04A30010
03-03-2004
Yolanda Scruggs, Petitioner, v. John E. Potter, Postmaster General, United States Postal Service, (Southeast Area), Agency.
Yolanda Scruggs v. United States Postal Service
04A30010
March 3, 2004
.
Yolanda Scruggs,
Petitioner,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Southeast Area),
Agency.
Petition No. 04A30010
Appeal No. 01982023
Agency No. 4-H-350-1099-95
Hearing No. 130-96-8137X
DECISION ON A PETITION FOR ENFORCEMENT
On October 24, 2002, the Equal Employment Opportunity Commission (EEOC
or Commission) docketed a petition for enforcement (PFE) to examine
the enforcement of an order set forth in Yolanda Scruggs v. United
States Postal Service, EEOC Appeal No. 01982023 (March 29, 2001).
This petition for enforcement is accepted by the Commission pursuant to
29 C.F.R. � 1614.503.
Petitioner filed her formal complaint with the agency in which she
alleged that she was discriminated against on the bases of race (Black)
and sex (female), in violation of Title VII of the Civil Rights Act
of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq., when, on
or about October 23, 1994, her appointment as a Transitional Employee
(TE) Letter Carrier, PS-05, was not renewed. Following a hearing, an
EEOC Administrative Judge (AJ) issued a decision finding discrimination.
Specifically, the AJ concluded that there was no evidence that petitioner
would not have been reappointed in the absence of discrimination, that the
agency's articulated legitimate, nondiscriminatory reasons were pretext
for race and sex discrimination, and therefore, the agency discriminated
against petitioner when it failed to rehire her. The agency rejected
the AJ's finding of discrimination; however, the Commission found
that the preponderance of the evidence supported the AJ's conclusion.
The Commission reversed the agency's finding of no discrimination,
and ordered the agency to take the following remedial actions:
Within thirty (30) days of the agency's receipt of this decision, the
agency shall expunge from any and all of its personnel or other records
any reference to [petitioner's] non-reappointment to a Transitional
Employee Letter Carrier position on or about October 23, 1994;<1>
Within thirty (30) days of the agency's receipt of this decision,
the agency shall issue the appropriate personnel form showing that
[petitioner] served in the Transitional Employee Letter Carrier position
from October 23, 1994, through the end of such a temporary appointment
period;
The agency shall determine the appropriate amount of back pay from
October 23, 1994 through the end of the temporary appointment period
(with interest, if applicable) and other benefits due [petitioner],
pursuant to 29 C.F.R. � 1614.501, no later than sixty (60) calendar
days after the date this decision becomes final. [Petitioner] 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 [petitioner]
for the undisputed amount within sixty (60) calendar days of the date
the agency determines the amount it believes to be due. [Petitioner]
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;�
Within sixty (60) days of the receipt of this decision, the agency shall
afford [petitioner] the opportunity to be considered for any Transitional
Employee appointment which she could have applied for subsequent to
her non-reappointment in October of 1994, with the expunged record; and,
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 [petitioner],
including evidence that the corrective action had been implemented.
The Commission ordered the agency to submit the compliance report,
identified in remedial order five (5), to the Commission, within thirty
(30) calendar days of the completion of all ordered corrective action.
We also required the agency to include supporting documentation with its
report, and to send a copy of all submissions to petitioner. The matter
was assigned to a Compliance Officer at the Commission, and docketed
as Compliance No. 06A10999 on April 2, 2001. On July 31, 2001, the
agency submitted its initial compliance report to the Commission, and,
on October 25, 2001, the agency submitted its final compliance report to
the Commission in which the agency stated that it had complied with all
orders issued in Appeal No. 01982023. On February 19, 2002, petitioner
filed a petition for enforcement with the Commission, which was docketed
as Petition No. 04A30010. Petitioner contends that the agency has not
complied with the Commission's order in Appeal No. 01982023. The agency
has not responded to the PFE.
Order 1 of the Commission's decision in Appeal No. 01982023 directed
the agency to expunge from its records any reference to petitioner's
non-reappointment to a TE Letter Carrier position. The petitioner
states that she believes that this order has been carried out, but
that she has never been officially informed by the agency. The Notice
of Personnel Action contained in the record indicates that this order
likely has been carried out by the agency, but because no statement or
letter to that effect has been issued by the agency, like petitioner,
the Commission cannot be certain that the ordered expungement has taken
place. The Commission thus directs the agency to provide documentation
to the Compliance Officer indicating whether the ordered expungement has
been executed, and if it has not been executed, to do so as directed in
Order 1.
Order 2 directed the agency to issue the appropriate personnel form
showing that petitioner served in the TE Letter Carrier position from
October 23, 1994, through the end of the temporary appointment period.
Petitioner contends that the appointment period does not end until the
agency makes petitioner a job offer in writing. Petitioner states that
she has not yet received such an offer. A review of the record indicates,
however, that transitional employee appointments are for 359 days.
Therefore, the agency properly determined that the ordered appointment
period that began on October 30, 1994 (which takes into account the
mandatory six day break in service before transitional employees can be
reappointed), would end on October 23, 1995. The Commission finds that
the Notification of Personnel Action contained in the record correctly
indicates that petitioner served in the TE Letter Carrier position from
October 30, 1994, through October 23, 1995.
Order 3 directed the agency to determine the appropriate amount of back
pay from October 23, 1994, through the end of the temporary appointment
period. Petitioner continues to argue that she is entitled to back
pay extending from October 23, 1994, until the agency makes her a job
offer in writing. She further argues that because a similarly situated
employee was converted from a TE to a career status employee on July 18,
1998, that she should be paid at the rate of a TE until July 18, 1998,
and that from July 18, 1998 to the present, she should be paid as a
regular career status employee. She further contends that she did not
receive the back pay within the sixty (60) day time period as ordered
by the Commission, and that she did not receive the interest owed.
There is no indication that the employee identified by petitioner was a
similarly situated employee. The employee identified by petitioner in
her May 18, 2001 letter to the Compliance Officer is not
the employee named by the AJ or the Commission in either of their
decisions.<2> Furthermore, the Commission ordered the agency to award
petitioner back pay to cover the period from October 23, 1994, until
the end of the temporary appointment period. As explained above,
the temporary appointment period actually began on October 30, 1994,
taking into account the mandated six day break in service, and ended on
October 23, 1995. Therefore, we find that the agency properly awarded
petitioner back pay for the period October 30, 1994, through October 23,
1995, in the amount of $12,547.48. Additionally, the Remittance Advice,
dated September 19, 2001, indicates that petitioner received interest
owed in the amount of $13,030.43.
Order 4 instructed the agency to afford petitioner the opportunity to
be considered for any TE appointment which she could have applied for
subsequent to her non-reappointment in October 1994, with the expunged
record. In correspondence between the agency and the Compliance
Officer, the agency states that the TE Letter Carrier positions were
phased out several years ago, and the agency no longer employees them.
Petitioner suggests that Order 4 instructs the agency to place her in
a new position, as the agency did for the former TE described above,
who on July 18, 1998, was hired as a career status employee.
The Commission thus clarifies the meaning of Order 4. If
complainant/petitioner reapplies for any position at the agency, the
agency must consider her application in light of her expunged record.
We note that petitioner has not claimed that she has reapplied to the
agency. Additionally, the Commission has never ordered the agency to
hire complainant into a new position. Furthermore, even assuming that
the TE hired as a career status employee on July 18, 1998, was similarly
situated to petitioner, we find too speculative petitioner's contention
that had she not been discriminatorily denied reappointment to the TE
position through October 23, 1995, she would have been re-appointed
through July 18, 1998, and then selected for a career status position.
See Ritchie v. United States Postal Service, EEOC Request No. 05980501
(February 11, 1999) (citing Ramirez v. United States Postal Service,
EEOC Petition No. 04950024 (February 8, 1996)).
The Commission GRANTS petitioner's Petition for Enforcement, and directs
the agency to take the actions set forth in the Order below.
ORDER
Within sixty (60) calendar days of the date this decision becomes final,
the agency shall:
If the agency has not done so already, expunge from any and all of its
personnel or other records any reference to petitioner's non-reappointment
to a Transitional Employee Letter Carrier position on or about October 23,
1994, and, provide documentation indicating that the ordered expungement
has been completed;
If petitioner reapplies to the agency, in any position, the agency must
consider petitioner's application in light of the expunged record, and
treat the application as if complainant had served as a Transitional
Employee Letter Carrier from October 30, 1994, through October 23,
1995; and,
ATTORNEY'S FEES (H0900)
If complainant 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.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)
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 (S0900)
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 (Z1199)
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
March 3, 2004
__________________
Date
1The Commission notes that the
Order in EEOC Appeal No. 01982023 refers to the position as a �Temporary
Employee Letter Carrier position.� The position is a Transitional
Employee Letter Carrier position, but such position is appropriately
characterized as temporary, as the appointment only lasts 359 days.
2The employee who was named as a similarly situated employee by the
Commission in Appeal No. 01982023, E2, was converted to a part-time
flexible (PTF) status and continues to work at the agency; however, there
is no evidence that he had attendance problems or mail delivery problems.
Therefore, this employee was not similarly situated to petitioner,
and was erroneously used as a comparative employee when evaluating
whether complainant established a prima facie case of discrimination.
Nevertheless, we still find that E1 was similarly situated to complainant
and was a proper comparative employee.