Elliott Haines, III v. United States Postal Service 04A50018 11-22-05 . Elliott Haines, III, Petitioner, v. John E. Potter, Postmaster General, United States Postal Service, Agency. Petition No. 04A50018 Request No. 05A40105 Agency No. 4K-210-0132-98 Hearing No. 120-A0-3642X DECISION ON A PETITION FOR CLARIFICATION On May 9, 2005, the Equal Employment Opportunity Commission (EEOC or Commission) docketed a petition for clarification to examine the enforcement of an order set forth in Elliott Haines, III v. United States Postal Service, EEOC Request No. 05A40105 (December 8, 2003). This petition for clarification is accepted by the Commission pursuant to 29 C.F.R. § 1614.503. Petitioner seeks clarification on the issue of his entitlement to overtime. In EEOC Appeal No. 01A14096 (September 5, 2003), the Commission found that the agency discriminated against petitioner based on a perceived disability when, in June 1998, he was found medically unsuitable for the positions of Mail Handler and Flat Sorter Machine Operator (FSMO). Petitioner filed a request to reconsider certain aspects of the initial decision on October 10, 2003. Petitioner's request, however, was denied in EEOC Request No. 05A40105 (December 8, 2003). Among other things, the agency was ordered, in pertinent part, to: [D]etermine the appropriate amount of back pay, and other benefits due complainant, pursuant to 29 C.F.R. § 1614.501, no later than sixty (60) calendar days after the date this decision becomes final. On November 9, 2005, petitioner submitted this petition for clarification. Petitioner requests, as a clarification, that the Commission direct the agency to pay petitioner the overtime compensation that he would have earned from the time of his actual hire through the date when his seniority date was adjusted sometime in early 2004. ANALYSIS AND FINDINGS The Commission's regulations provide that the Office of Federal Operations may, on its own motion or in response to a petition for enforcement or in connection with a timely request for reconsideration, issue a clarification of a prior decision. A clarification cannot change the result of a prior decision or enlarge or diminish the relief ordered, but may further explain the meaning and intent of the prior decision. 29 C.F.R. § 1614.503(c). The Commission grants the instant petition for clarification. In the present matter, we find that if the agency ascertains that overtime was a benefit that petitioner would have been entitled to had he not been discriminated against then, pursuant to the order set forth in EEOC Request No. 05A40105 and repeated below, he would be entitled to reimbursement for any overtime that he had not been provided. For example, if other Mail Handlers or FSMOs who were hired at approximately the same time as complainant (or instead of complainant) who were similarly situated received overtime during the back pay period, then it is arguable that complainant would also be so entitled. The agency shall make this determination, provide evidence to complainant in support of it, and allow complainant to respond to the determination prior to making a final decision on the issue of complainant's entitlement to overtime pay. CONCLUSION Based upon a review of the record and the submissions of the parties, and for the foregoing reasons, the Commission grants the petition for clarification. ORDER The agency shall determine the appropriate amount of back pay, and other benefits due complainant, pursuant to 29 C.F.R. § 1614.501, no later than sixty (60) calendar days after the date this decision becomes final. The complainant 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 the complainant for the undisputed amount within sixty (60) calendar days of the date the agency determines the amount it believes to be due. The complainant 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." 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. STATEMENT OF PETITIONER'S RIGHTS - ON PETITION FOR ENFORCEMENT 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 _______11-22-05_______________________ Date