0120103498
06-20-2012
Anna K. Harrison, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Eastern Area), Agency.
Anna K. Harrison,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Eastern Area),
Agency.
Appeal No. 0120103498
Hearing No. 470-2007-00110X
Agency No. 1C-401-0035-06
DECISION
On August 23, 2010, Complainant filed an appeal from the Agency's August 20, 2010, final decision concerning her equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq. For the following reasons, the Commission AFFIRMS the Agency's final decision.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as an Air Mail Facility (AMF) Manager in Louisville, Kentucky. However, during the relevant time, Complainant's job assignment was Tour II Manager of Distribution Operations (MDO). Complainant also performed administrative functions for the AMF.
Complainant filed an EEO complaint dated October 19, 2006, alleging that the Agency discriminated against her on the bases of race (Caucasian), sex (female), and (for claim (2) only) in reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 when:
1. On July 19, 2006, the Agency removed Complainant from her job and placed her on administrative leave and subsequently charged her with vacation time.
2. After Complainant informed the Agency that she was not released by her doctor and would continue on sick leave, the Agency placed her on leave without pay and later paid her at a rate of sixty percent of her normal rate.
At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an EEOC Administrative Judge (AJ). Complainant timely requested a hearing and the AJ held a hearing on December 19 - 20, 2007, and January 22, 2008. On August 11, 2009, the AJ issued a decision finding Complainant established that she was subjected to discrimination based on her race and sex with regard to issue (1) and finding Complainant failed to prove that she was subjected to discrimination with regard to issue (2). By final action dated September 21, 2009, the Agency fully implemented the AJ's decision.
The Agency implemented the AJ's order which required the Agency, in pertinent part, to:
1. determine the appropriate amount of back pay with interest and other benefits due Complainant for the period from July 21, 2006, pursuant to 29 C.F.R. � 1614.502, and tender that amount to Complainant. In calculating the appropriate back pay, the Agency shall pay Complainant at the level she was being paid prior to July 21, 2006, including any additional and appropriate step increases and locality pay. The Agency shall continue to pay Complainant at the calculated rate, unless Complainant rejects an offer to return to work as outlined in paragraph three below. The Agency shall tender the amount of back pay to Complainant no later than thirty calendar days after the Agency issues or should have issued the "Final Action" within the meaning of 29 C.F.R. � 1614.110;
2. credit Complainant with all sick leave and annual leave that she has used since July 21, 2006. The Agency shall credit Complainant with the appropriate leave no later than thirty calendar days after the Agency issues or should have issued the "Final Action" within the meaning of 29 C.F.R. � 1614.110; and
3. offer Complainant a position equivalent to the position she held prior to July 21, 2006. In the event that Complainant rejects the position offered pursuant to this paragraph, the Agency shall place her in an unpaid leave status until such time as she notifies the Agency that she is able to return to work. At that time, the Agency shall offer Complainant a position equivalent to the position she held prior to July 21, 2006. The Agency shall make the offer of a position to Complainant no later than thirty calendar days after the Agency issues or should have issued the "Final Action" within the meaning of 29 C.F.R. � 1614.110.1
On November 24, 2009, Complainant filed an appeal with the Commission. In her appeal, Complainant stated that by letter dated October 28, 2009, the Agency informed her that she was not going to be paid back pay, have her leave restored, or be offered a position. Complainant did not submit a copy of the purported letter.
In response to Complainant's appeal, the Agency submitted the complaint file which contained documentation up through the date of its final action, but did not include evidence of what occurred after that time.
In EEOC Appeal No. 0120100642 (May 18, 2010), the Commission remanded the matter to the Agency for further processing. The Agency was ordered to process Complainant's non-compliance claim and to issue a final decision on the compliance matter.
On August 20, 2010, the Agency issued a final decision on Complainant's clam of non-compliance. The Agency noted that it paid Complainant compensatory damages, paid attorney's fees, trained the responsible management official, and posted the requisite notice. The Agency stated that there were no documents to expunge in Complainant's personnel records.
With regard to the AJ's order of back pay and leave restoration, the Agency determined that no back pay or leave restoration was required. The Agency noted that Complainant was on administrative leave from July 21, 2006, through August 8, 2006, and used no sick or annual leave during this period. The Agency also stated that Complainant was offered three opportunities to return to work on August 8, 2006, May 10, 2007, and in April 2008; however, Complainant stated she was medically unable to return and did not return to work. The Agency noted that Complainant retired via a discontinued service annuity effective September 12, 2008.
ANALYSIS AND FINDINGS
As a result of the finding of discrimination with regard to issue (1), the Agency was required to determine the appropriate amount of back pay with interest and other benefits due Complainant beginning July 21, 2006. The Order specified that the Agency was to continue paying Complainant at the calculated rate unless Complainant rejects an offer to return to work.
The Agency noted that Complainant was placed on administrative leave from July 21, 2006, through August 8, 2006. In a statement attached to her November 24, 2009 appeal, Complainant acknowledged that she was on administrative leave from July 21, 2006, through August 8, 2006, and that she was not owed any back pay for those days.
The Agency stated that at an August 8, 2006 meeting, Complainant was instructed to return to her job; however, she provided medical documentation which placed her on a non-duty status for medical reasons. In her December 27, 2006 affidavit, Complainant admitted that she was told she could go back to her prior position starting August 9, 2006.
Upon review, we find Complainant has not shown that she was due any back pay for the period of July 21, 2006, through August 8, 2006, the dates she was placed on administrative leave while she was being investigated. The Agency noted that Complainant was paid her normal salary while she was placed on administrative leave and Complainant does not dispute this on appeal. Moreover, we find Complainant has not shown that she was due any additional back pay after August 8, 2006, when the Agency offered her an opportunity to return to work in the position she was working in as of July 21, 2006.
Similarly, we find Complainant failed to show that the Agency was in non-compliance with the Order to credit her with all sick and annual leave that she has used since July 21, 2006. As Complainant was placed on administrative leave from July 21, 2006, through August 8, 2006, we note that she could not have used any sick or annual leave during this time. Moreover, we find that once Complainant rejected the August 8, 2006 offer to return to work in her previously held position, the Agency was no longer required to credit her with any more leave used after this date.
Finally, we find Complainant has not shown the Agency failed to comply with the Order to offer her a position equivalent to the position she held prior to July 21, 2006. The record shows that on August 8, 2006, the Agency offered Complainant the opportunity to return to the position she was previously working in as of July 21, 2006. We note that on appeal, Complainant does not dispute that on August 8, 2006, she was offered the opportunity to return to the position she had been previously working in as of July 21, 2006.2
CONCLUSION
Accordingly, the Agency's final decision is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
The Commission may, in its discretion, reconsider the decision in this case if the Complainant or the Agency submits a written request containing arguments or evidence which tend to establish 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.
Requests to reconsider, with supporting statement or brief, must be filed with the Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision or within twenty (20) calendar days of receipt of another party's timely request for reconsideration. See 29 C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at 9-18 (November 9, 1999). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. In the absence of a legible postmark, the request to reconsider shall be deemed timely filed if it is received by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. � 1614.604. The request or opposition must also include proof of service on the other party.
Failure to file within the time period will result in dismissal of your request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted with your request for reconsideration. The Commission will consider requests for reconsideration filed after the deadline only in very limited circumstances. See 29 C.F.R. � 1614.604(c).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S0610)
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 (Z0610)
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 from the Court that the Court appoint an attorney to represent you and that the Court also 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 with the Court 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
June 20, 2012
__________________
Date
1 The AJ ordered other relief, such as compensatory damages ($30,000.00), training of the responsible management official, posting a notice to employees of the non-discriminatory policy, amending any personnel records it maintains with regard to Complainant to expunge all references to this complaint and the reason for its initiation, and attorney's fees ($20,375.00) and costs ($215.67).
2 There is no indication that Complainant filed a claim of constructive discharge and no constructive discharge claim was pending before the AJ at the time of the hearing. Moreover, we note the AJ did not find Complainant was entitled to front pay.
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01-2010-3498
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120103498