05970441
03-18-1999
John R. Wagner, Appellant, v. Agency No. 3-S-0217-88 William J. Henderson, Postmaster General, United States Postal Service, Agency.
John R. Wagner, )
Appellant, )
)
v. ) Request No. 05970441
) Appeal No. 01945457 )
Agency No. 3-S-0217-88
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
______________________________)
DENIAL OF REQUEST FOR RECONSIDERATION
On January 28, 1997, John R. Wagner (hereinafter referred to as appellant)
initiated a request to the Equal Employment Opportunity Commission (EEOC)
to reconsider the decision in John R. Wagner v. U.S. Postal Service,
EEOC Appeal No. 01945457 (January 15, 1997). 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).
Appellant's request is denied.
The lengthy and complicated procedural history of this case was adequately
set forth in Appeal No. 01945457 and will not be restated again in its
entirety. However, we note the following salient facts. On July 25,
1989, the parties entered into a Settlement Agreement (SA-1) in which it
was agreed that appellant would be placed in the �next EAS-13 or EAS-15
Officer in Charge (OIC) position (whichever occurs first)� in the agency's
339 area.� On March 7, 1991, the parties entered into another settlement
agreement (SA-2) to settle another EEO complaint filed by appellant.
SA-2 provided that appellant would be �offered an OIC assignment at the
next Post Office, Level EAS-13 or 15 in the 339 Zip Code area� but that
the provisions of SA-2 did not negate or satisfy the requirements of SA-1.
In February 1990, appellant first alleged that SA-1 was breached and
the agency was ultimately ordered by the Commission to retroactively
grant appellant the Level 13 or 15 OIC position and to grant appellant
�backpay for the period from the agency's initial breach until the
present.� See EEOC Appeal No. 01912484 (August 22, 1991). The record
shows that appellant was placed in a temporary OIC position from June
21, 1991 until late July 1991 and that on December 20, 1991, appellant
was awarded $4,469.96 to cover backpay for the period of August 18,
1989 until June 21, 1991. .
After July 1991, appellant realleged that the agency failed to comply
with the provisions of SA-1 because he: (1) should have been granted an
EAS-15 Postmaster position; (2) deserved additional backpay; (3) should
be granted compensatory and punitive damages; and, (4) should receive
a letter of apology from the agency. After some procedural delays,
the agency, on August 12, 1994, issued a final decision which found
that it had complied with SA-1 and appellant appealed this decision to
the Commission.
On January 15, 1997, the Commission issued the previous decision in
Appeal No. 01945457, which is at issue herein. The previous decision
found that the agency failed to show that appellant had been placed
into an OIC assignment in fulfillment of SA-1. The previous decision
concluded that appellant's temporary placement in an OIC position from
June 21, 1991 until July, 1991 settled SA-2 but did not satisfy SA-1.
The previous decision ordered the agency to comply with the July 25,
1989 SA by placing appellant into an OIC assignment with appropriate
pay and benefits in satisfaction of SA-1. Further, the previous decision
determined that the agency had complied with the backpay order in Appeal
No. 01912484 decision because it had provided appellant with backpay for
the period of August 18 1989 until June 21, 1991; therefore, appellant
was not presently due any additional backpay under SA-1.
In addition, the previous decision found that: (1) appellant was not
entitled to an EAS-15 Postmaster position because SA-1 did not provide
for such; (2) he should not be entitled to compensatory damages because
they are generally not an available remedy upon a finding of breach;
and, (3) he was not entitled to punitive damages because they are not
available in the federal EEO process.
In his request for reconsideration, appellant essentially argues
that he is entitled to backpay from the date of breach until the
present. According to appellant, the backpay payment for the period until
June 21, 1991 only constituted part of the backpay due him. Appellant
requests that he receive backpay from June 21, 1991 until January 15,
1997 or until the agency is in full compliance with SA-1. Finally,
appellant requests that the agency again be ordered to
place appellant in the appropriate OIC position. The agency submits no
response to appellant's request for reconsideration.
After careful review and for the reasons stated in the previous decision,
we agree that appellant is not entitled to an EAS-15 Postmaster position,
compensatory damages, or punitive damages. Appellant has submitted no
new evidence which would change the outcome of the previous decision in
these respects. We also agree that the agency failed to show that it
had complied with SA-1 by placing appellant in an EAS-13 or EAS-15 OIC
position. Consequently, we find that the agency shall comply with this
aspect of SA-1 as ordered in the previous decision. In addition, we agree
with the previous decision that the agency complied with its obligations
with respect to backpay by providing appellant with backpay from the time
of the breach until the �next� OIC assignment. Appellant has submitted
no additional arguments or evidence which would change the outcome of
the previous decision with respect to appellant's backpay award.
Accordingly, after a review of appellant's request for reconsideration,
the previous decision and the entire record, the Commission finds that
appellant'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 appellant's request for
reconsideration. The decision of the Commission in Appeal No. 01945457
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
Within thirty (30) days of the date this decision becomes final the
agency shall provide appellant with an OIC assignment in satisfaction of
the July 25, 1989 settlement agreement. The agency shall supplement the
record with evidence showing that it has provided appellant with an OIC
assignment in satisfaction of the July 25, 1989 settlement agreement. A
copy of the documentation relating to this OIC assignment shall be sent
to the Compliance Officer as referenced below.
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
March 18, 1999
DATE
Frances
M.
Hart
Executive
Officer
Executive Secretariat