05990263x
02-15-2000
Bobby M. Brawley, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Bobby M. Brawley, )
Appellant, )
)
v. ) Request No. 05990263
) Appeal No. 01972255
) Agency No. 4D-280-1092-95
William J. Henderson, ) Hearing No. 140-95-8161X
Postmaster General, )
United States Postal Service, )
Agency. )
______________________________)
DENIAL OF REQUEST FOR RECONSIDERATION
On December 29, 1998, the United States Postal Service (hereinafter
referred to as the agency) initiated a request to the Equal Employment
Opportunity Commission (EEOC) to reconsider the decision in Brawley
v. United States Postal Service, EEOC Appeal No. 01972255 (November
25, 1998).<1> EEOC regulations provide that the Commissioners may,
in their discretion, reconsider any previous decision where the party
demonstrates that: (1) the previous decision involved clearly erroneous
interpretation of material fact or law; or (2) the decision will have a
substantial impact on the policies, practices or operation of the agency.
64 Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. �1614.405(b)). The agency's request is denied.
The Commission notes that the previous decision remanded the issues of
compensatory damages and attorney's fees to the agency. The Commission
finds it is more appropriate that such matters be remanded to the
Administrative Judge.
After a review of the agency's request for reconsideration, the previous
decision and the entire record, the Commission finds that the agency's
request does not meet the criteria of 29 C.F.R. � 1614.407(b), and it is
the decision of the Commission to deny the agency's request. The decision
of the Commission in Appeal No. 01972255 remains the Commission's final
decision. There is no further right of administrative appeal from the
decision of the Commission on this request for reconsideration.
ORDER
The agency is ORDERED to take the following remedial actions:
1. The agency shall, within thirty (30) calendar days of the date
this decision becomes final, reinstate appellant to the position
of Part-time Flexible City Carrier, PS-5, or a comparable position
effective January 6, 1995.
2. The agency shall determine the appropriate amount of backpay,
with interest, and other benefits due appellant pursuant to 29
C.F.R. �1614.501, no later than sixty (60) calendar days after the
date this decision becomes final. The appellant shall cooperate
in the agency's efforts to compute the amount of backpay and
benefits due, and shall provide all relevant information requested
by the agency. If there is a dispute regarding the exact amount
of backpay and/or benefits, this 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
referenced in the statement entitled �Implementation of the
Commission's Decision.�
3. The issues of compensatory damages and attorney's fees and
costs are REMANDED to the Hearings Unit of the appropriate EEOC
field office. Thereafter, the administrative judge shall issue a
decision on these issues in accordance with 29 C.F.R. � 1614.109,
and the agency shall issue a final action in accordance with
29 C.F.R. �1614.110 within forty (40) days of receipt of the
administrative judge's decision.. The agency shall submit copies
of the decision of the Administrative Judge and the final agency
action to the Compliance Officer at the address set forth below.
POSTING ORDER (G1092)
The agency is ORDERED to post at its General Mail Facility, Concord, North
Carolina facility 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 ensure 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.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K1199)
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 64
Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter
referred to as 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)(Supp. V 1993). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 64 Fed. Reg. 37,644, 37,659 (1999)
(to be codified and hereinafter referred to as 29 C.F.R. � 1614.409).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION
(R1199)
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 WITHIN NINETY (90) CALENDAR DAYS from the date
that you receive this decision. 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 (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:
Feb. 15, 2000
______________ ______________________
DATE Frances M. Hart
Executive Officer
Executive Secretariat
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
Date
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
An Agency of the United States Government
This Notice is posted pursuant to an Order by the United States Equal
Employment Opportunity Commission dated which found
that a violation of the Title VII of the Civil Rights Act of 1964,
as amended, 42 U.S.C. � 2000e et seq. has occurred at this facility.
Federal law requires that there be no discrimination against any
employee or applicant for employment because of the person's RACE, COLOR,
RELIGION, SEX, NATIONAL ORIGIN, AGE, or PHYSICAL or MENTAL DISABILITY
with respect to hiring, firing, promotion, compensation, or other terms,
conditions or privileges of employment. The General Mail Facility,
Concord, North Carolina, reaffirms its commitment to comply with these
statutory provisions.
The General Mail Facility, Concord, North Carolina, supports and will
comply with such Federal law and will not take action against individuals
because they have exercised their rights under law.
The General Mail Facility, Concord, North Carolina, was found to have
discriminated on the basis of race when it terminated an employee
during his probationary year. The General Mail Facility, Concord,
North Carolina, was ordered to take corrective action in the form of
(1) reinstating the aggrieved individual; and (2) awarding back pay,
interest and other benefits. The General Mail Facility, Concord, North
Carolina, will ensure that officials responsible for personnel decisions
and terms and conditions of employment will abide by the requirements
of all Federal equal employment opportunity laws and will not retaliate
against employees who file EEO complaints.
The General Mail Facility, Concord, North Carolina, will not in any
manner restrain, interfere, coerce, or retaliate against any individual
who exercises his or her right to oppose practices made unlawful by,
or who participates in proceedings pursuant to, Federal equal employment
opportunity law.
_______________________________
Date Posted: ____________________
Posting Expires: ________________
1 On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply to all
Federal sector EEO complaints pending at any stage in the administrative
process. Consequently, the Commission will apply the revised regulations
found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at WWW.EEOC.GOV.