Ricky T. Young v. United States Postal Service 04A50024 September 28, 2005 . Ricky T. Young, Petitioner, v. John E. Potter, Postmaster General, United States Postal Service, Agency. Petition No. 04A50024 Appeal No. 07A40051 Agency No. 4E-995–0004-00 Hearing No. 380a-08190x DECISION ON A PETITION FOR ENFORCEMENT On July 5, 2005, the Equal Employment Opportunity Commission (EEOC or Commission) docketed a petition for enforcement to examine the compliance with an order set forth in Ricky T. Young v. United States Postal Service, EEOC Appeal No. 07A40051 (July 15, 2004).<1> The petitioner alleged that the agency failed to fully comply with the Commission's order in Ricky T. Young v. United States Postal Service, EEOC Appeal No. 07A40051 (July 15, 2004). This petition for enforcement is accepted by the Commission pursuant to 29 C.F.R. § 1614.503. For the following reasons, the Commission grants the Petition for Enforcement. As background, this case has been the subject of a number of appeals. The petitioner filed a complaint in which he alleged that the agency discriminated against him on the bases of race (African-American) when the agency did not select him for promotion. That matter was heard by an Administrative Judge who ruled for the petitioner. The agency disagreed with the earlier AJ order and issued a decision, finding no discrimination. In EEOC Appeal No. 07A40051 (July 15, 2004), the Commission reversed the agency and directed the agency to: 1) offer the petitioner appointment to a Tour 3 Supervisor position or a substantially equivalent one; 2) provide appropriate back pay and benefits, including attorney's fees; and 3) provide training to the responsible management officials and to the petitioner. The Commission's order provided that if the agency did not comply with the Commission's order, the complainant could petition the Commission for enforcement of the order. On July 7, 2005, the Commission docketed a petition for enforcement to examine the compliance with the order. The petitioner alleged that the agency failed to fully comply with the Commission's order to appoint the complainant to a Tour 3 Supervisor position or a substantially equivalent position, with retroactive back pay and benefits. The complainant also contends that the agency failed to comply with the order to provide the complainant with all training and job enhancing benefits to which he was entitled from September 15, 1999. The petitioner notes that similarly situated supervisors have been provided with substantial amounts of formal Associate Supervisor Training that have not been provided to the petitioner. He also seeks an explanation of the breakdown of back pay and questions the agency's assertion that its payment which included his regular pay as part of a lump sum payment award. The agency contends that it has fully complied with the EEOC order. For the following reasons, we grant the Petition for Enforcement. We note that the record before us on this petition includes the compliance record and EEOC file. The matter was assigned to a Compliance Officer and docketed as Compliance No. 06A40964 on July 15, 2004. Based on this record, we conclude that the agency has partially complied with the Order.<2> We will address each of the remaining Order provisions and our concerns. Back Pay and Interest In his petition for enforcement, the petitioner argued that the agency has not paid all of the back pay and interest due to him. In his submission dated July 26, 2004, the petitioner, through counsel, conceded that certain payments had been made subsequent to his filing the petition for enforcement. Documentation submitted by the agency to the Compliance Officer provides information on the calculation of back pay and interest. However, it is not clear whether the agency's calculations included the period September 15, 1999 through December 21, 2000. Thus, the Commission directs the agency to either provide documentation clarifying how the back pay and interest already paid to the petitioner cover the period September 15, 1999 to December 21, 2000 or to make payment to the petitioner for the outstanding back pay and interest for said period. Enhancement of Skills Training The order provided that the agency shall provide the complainant with all formal, informal, and other training and job enhancing benefits he would have received absent the discrimination. The petitioner argues that he has not received training comparable to that given other supervisors. In particular, the petitioner points to other supervisors attending formal training under the Associate Supervisor Program in a classroom setting. His ASP training was informal, on-the-job training. The Commission finds that the agency has not fully complied. Attorney's Fees The Commission's decision provided for the award of reasonable attorney's fees under Title VII. In addition, Title VII and the Commission's regulations authorize the award of reasonable attorney's fees and costs to a prevailing complainant under 29 C.F.R. § 1614.501(e). The petitioner is entitled to seek attorney's fees in connection with this petition for enforcement. Accordingly, we find that the petitioner is also entitled to any fees in connection with the filing of this petition. Other Benefits Our records show that the petitioner has been granted the merit increase that he lost when he was not promoted up until the time he was placed in the first supervisory position. We note that on appeal, the petitioner argues that he is entitled to receipt of the national pay increase of 3% and a further increase of 3.5% for the local component for the Fiscal Year 2005. The petitioner appears to be raising new issues on appeal. This matter was not the subject of the prior FAD. The petitioner is advised that if he wishes to pursue, through the EEO process, the additional reprisal claims for incidents subsequent to the filing of the complaint, he shall initiate contact with an EEO Counselor within 15 days after he receives this decision. The Commission advises the agency that if the petitioner seeks EEO counseling regarding the new claims within the above 15-day period, the date petitioner filed the appeal statement in which he raised these claims with the agency shall be deemed to be the date of the initial EEO contact, unless he previously contacted a counselor regarding these matters, in which case the earlier date would serve as the EEO Counselor contact date. Therefore, based upon our review of the record on this petition for enforcement, the decision of the Commission is to grant the petition for enforcement as it pertains to back pay, the interest, training for the petitioner and attorney's fees. ORDER (C0900) To the extent that the agency has not done so already, the agency is ordered to take the following remedial action: 1. Within thirty (30) calendar days after receipt of this decision, the agency shall either provide documentation to the petitioner and the Commission's Compliance Officer clarifying how the back pay and interest already paid to the petitioner cover the period September 15, 1999 through December 21, 2000 or make payment to the petitioner for the outstanding back pay and interest for said period. If it has not already done so, the agency shall pay the appropriate amount of interest on the back pay, and other benefits (such as cost of living adjustments) due the petitioner, pursuant to 29 C.F.R. § 1614.501, no later than sixty (60) calendar days after the date this decision becomes final. The 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 the petitioner for the amount claimed or the undisputed amount within sixty (60) calendar days of the date the agency determines the amount it believes to be due. The petitioner does not have to petition for enforcement or clarification of the amount in dispute, because the Commission will be monitoring for enforcement of the order herein. Within a reasonable amount of time, the agency shall identify any training that was provided to other supervisors but which has not been provided to the petitioner. The agency is also ordered to provide the petitioner with all formal, informal and other training and other job enhancing benefits he would have received from September 15, 1999 to the present date, and which has been provided by the agency to other supervisors in the Fairbanks General Mail Facility. The agency shall use the training that was provided to other supervisors as a benchmark. Within sixty (60) days from the date of this decision which is the final decision, the agency shall pay the petitioner reasonable attorneys' fees and costs in connection with efforts after July 15, 2004 or as a result of prosecuting this petition for enforcement. 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 verifying that the corrective action has been implemented. 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 (P0900) This decision of the Commission is final, and there is no further right of administrative appeal from this Commission's decision. 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. 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 September 28, 2005 ________________ Date 1 The agency did not submit a request for reconsideration. 2Based on the record before us, which includes the compliance record, we find that the agency has complied with the order of relief, as follows: The agency has appointed the complainant to the position of Tour 3 Supervisor or a substantially equivalent position. The agency has paid the complainant non-pecuniary damages in the amount of $2,500. The agency has met the requirement for consideration of disciplinary action against the agency personnel responsible for the discriminatory action at issue in this case and did report its decision The agency has complied with the order to provide EEO training on the rights and responsibilities under Title VII of the Civil Rights Act to the agency personnel responsible for the non-selection of the complainant; and The agency has posted the Notice to Employees.