Sharon McNeil, Petitioner, v. William J. Henderson, Postmaster General, United States Postal Service, Agency. Request No. 05960436 Petition No. 04990007 Petition No. 04990007 Agency No. 1 GRANTING OF PETITION FOR ENFORCEMENT The petitioner, by and through her attorney, filed a petition for enforcement with the Equal Employment Opportunity Commission (Commission) requesting enforcement of the Commission's order in McNeil v. United States Postal Service, EEOC Request No. 05960436 (July 28, 1998).1 On October 28, 1998, the Commission docketed the, Petition for Enforcement in accordance with 29 C.F.R. §1614.503(a). The petition was properly filed. ISSUES PRESENTED Whether the agency complied with the Commission's order to (1) provide the petitioner with back pay, interest thereon, and all other benefits she would have received absent discrimination from the date she was removed to the entrance on duty date the agency offered her, and (2) if the petitioner accepted the reinstatement offer, to take steps with her prior to her entering on duty to eliminate her exposure to tobacco smoke in the work place. BACKGROUND The petitioner was employed with the agency as a full-time letter carrier with the New Brunswick Carrier Annex in New Jersey. She was removed effective December 28, 1992 for failure to be regular in attendance. In EEOC Request No. 05960436, the Commission found that the petitioner was discriminated against on the bases of physical disability (intermittent debilitating migraine headaches) when she was removed. In reaching this conclusion, the Commission found that the agency failed to reasonably accommodate the petitioner's disability when (1) it used leave to support disciplinary action that the petitioner took for her migraine headaches, and (2) it did not take effective or sufficient measures to reduce or eliminate the petitioner's exposure to tobacco smoke in the workplace. The decision noted that the smoke was a factor in triggering the petitioner's migraine headaches. The Commission found that the agency did not show that reasonably accommodating the petitioner would impose an undue hardship on its program. The Commission, in relevant part, ordered the agency to take the actions recounted in the above 'ISSUE PRESENTED' paragraph. ANALYSIS AND FINDINGS ALLEGATION 1--BACK PAY, INTEREST THEREON, AND OTHER BENEFITS Pursuant to the order in EEOC Request No. 05960436, the agency offered the petitioner the position of unassigned full-time city carrier at its New Brunswick, New Jersey Post Office. The petitioner received the offer by mail on August 12, 1998, which was effective upon receipt, and subsequently returned to work. As it would be unreasonable to expect that the petitioner could return to work the day she got the offer, we construe the offer to be effective August 13, 1998. The agency, however, only paid back pay, and interest thereon, for the period of December 29, 1992 through November 11, 1993. it reasoned that the petitioner declined a prior offer of reinstatement it made on November 11, 1993. While the agency does not articulate its legal reasoning, we surmise it is based on the principle that a back pay claimant has a duty to mitigate her losses. A back pay claimant under Title VII generally has a duty to mitigate damages. Specifically, §706(g) of Title VII, 42 U.S.C. §2000e-5(g) provides that 'interim earnings or amounts earnable with reasonable diligence by the person or persons discriminated against shall operate to reduce the back pay otherwise allowable.' This provision also applies to the Rehabilitation Act. See §505 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. §794a. The burden is on the agency, however, to establish that the employee failed in her duty to mitigate. The Commission has generally held that an agency must satisfy a two-prong test to carry its burden of proof; this test requires the agency to show: 1) that petitioner failed to use reasonable care and diligence in seeking a suitable position, and 2) that there were suitable positions available which Simmons v. United States Postal Service, EEOC Petition No. 04930005 (December 10, 1993). Generally, the victim of discrimination must receive back pay equal to what she would have would have earned in the employment lost through discrimination, less interim earnings in other employment. Back pay should include all forms of compensation. Allen v. Department of the Air Force, EEOC Petition No. 04940006 (May 31, 1996). With regard to the agency's claim, the record reflects that the petitioner, or the union on her behalf, filed a grievance contesting the removal. The agency and the union, without the agreement of the petitioner, settled the grievance on September 1, 1993. The resolution provided that the removal would be modified to a last chance opportunity for the petitioner to be a dependable and reliable employee. It stated she must provide administratively acceptable documentation for all unscheduled absences due to illness, improve her attendance, and that any repetition of infraction or failure to comply with the conditions of the agreement would provide just cause for removal. Pursuant to the resolution, and pending completion of a fitness for duty exam on November 11, 1993, the agency instructed the petitioner to report to duty on November 11, 1993. The petitioner explains that she did not return to work because the settlement provided no back pay or reasonable accommodation. With regard to lack of reasonable accommodation, the petitioner stated that she would have been forced to return to the same smoke filled environment and be subject to the conditions of the last chance opportunity under which the agency would use her migraine caused absences as a basis for disciplining her. While the lack of back pay does not constitute a proper reason for the petitioner to reject the opportunity to mitigate losses by returning to work with the agency, the lack of reasonable accommodation presents a different situation. The petitioner was previously removed for failure to be regular in attendance based on disability related absences that were partly due to workplace tobacco smoke. The duty to mitigate losses did not require her to return to the agency when her disability was not going to be accommodated by reducing or eliminating tobacco smoke and the agency was going to use disability related absences to support further discipline. As the last chance opportunity made abundantly clear, the agency would promptly use future absences to remove the petitioner. As back pay liability did not cut-off on November 11, 1993, this leaves the question of when it should have stopped. The petitioner argues that pursuant to the order in EEOC Request No. 05960436, back pay liability should continue through the entrance on duty date the agency offered her, i.e., August 13, 1998. While the petitioner's duty to mitigate losses did not require her to return to work at the agency in November 1993, she still had a duty to mitigate. The record reflects that after the Commission ordered the agency to offer the petitioner reinstatement with back pay, the agency sent her a questionnaire to elicit information on mitigation efforts. In her September 1998 response, the petitioner wrote that she did not work during the back pay period, but sought employment. She explained that during the first 'couple of years' after being removed, she made numerous attempts to gain employment at many local businesses, but each time a prospective employer learned that she had been removed by the agency, the negative reaction was 'palpable.' She wrote that for the past several years, albeit she did not own a car, she continued to contact local businesses by telephone, but was unsuccessful because being removed resulted in her being labeled as an unfit worker to these prospective employers. The agency did not ask the petitioner any follow up questions, nor provide any other evidence that she failed in her duty to mitigate losses. Accordingly, the agency failed to meet either prong of its burden to establish that the petitioner failed to mitigate her losses. Hence, the agency's back pay liability runs from December 29, 1992, the effective date of her removal, to August 13, 1998, the date the agency offered the petitioner entrance on duty. Further, the agency must pay interest on back pay it has not already paid the petitioner. In EEOC Request No. 05960436, the Commission also ordered the agency to award the petitioner all other benefits she would have received absent discrimination from the date she was removed to the entrance on duty date she was offered by the agency. The petitioner states that like back pay, the agency cut-off accretions in her seniority effective November 11, 1993. This was improper since, as found herein, the petitioner properly did not report back to work with the agency in November 1993. Accordingly, the agency must restore accretions in the petitioner's seniority for the entire back pay period of December 29, 1992 to August 13, 1998. The petitioner argues that she is entitled to her uniform allowance retroactive to the date of her removal. We disagree. Since the petitioner was not working for the agency during the back pay period there was no need for a uniform during this period, and hence she is not entitled to a retroactive uniform allowance. We note that in the petitioner's June 14, 1999, submission on petition for enforcement, she wrote that she was not paid interest ALLEGATION 2--TOBACCO SMOKE The postmaster of the facility where the petitioner returned to work stated that the only designated smoking area is outside at the end of the ramp, and that a no smoking policy has been enforced. He stated that smoke detectors were installed in the locker rooms and bathrooms, and the loading dock area has been clear of smokers. The petitioner states, however, that the tobacco smoking ban has not been enforced, and smoking still occurs on the loading dock, which wafts into her work areas as well as in restrooms immediately adjacent to her work area. The petitioner states that she complained several times to agency officials who assured her that they would enforce the ban, but who in fact allowed smoking to continue. The petitioner also states that the smoke detectors do not detect cigarette smoke. EEOC Request No. 05960436 ordered that if the petitioner accepted the agency's offer of reinstatement, it must, prior to her entrance on duty date, take steps in consultation with the petitioner to reduce or eliminate her exposure to tobacco smoke in the workplace. Implicit in this order was that the steps be effective. In light of the petitioner's specific contentions, the Postmaster's general statement that the loading dock has been cleared of smokers and the no smoking policy has been enforced is not persuasive. The Postmaster does not detail how the no smoking policy has been enforced. For example, signs and/or written dissemination of the no smoking policy alone, without orally reminding violators to smoke only in the designated area or further out beyond the building would be insufficient. As the petitioner is most familiar with the environment of her work areas, she should be consulted on tolerable limits of tobacco smoke and how to reduce or eliminate tobacco smoke. This could include moving the designated smoking area, improved enforcement of the no smoking policy, ventilation, fans, and so forth. The order below will address this matter. With regard to attempts by the petitioner to secure enforcement by the agency of the Commission's decision in EEOC Request No. 05960436, including this petition for enforcement and related correspondence, the petitioner is a prevailing party and entitled to attorney fees and costs. Instructions on how to apply for these fees are set forth below. CONCLUSION Based on a review of the record, and for the foregoing reasons, the Commission grants, in part, the petitioner's Petition for Enforcement of the order in McNeil v. United States Postal Service, EEOC Request No. 05960436. The agency shall take the actions below. ORDER 1. The agency is ordered, upon its receipt of this decision, to consult face-to-face with the petitioner regarding ways to reduce or eliminate tobacco smoke in her workplace to tolerable limits. Ideas include, to the extent necessary, moving the designated smoking area, improved procedures for implementing the no smoking policy and better enforcement thereof, ventilation, fans, and so forth. Within 15 calendar days of receiving this decision, the agency shall appoint an official as a point of contact for the petitioner. The point of contact must be readily available to the petitioner regarding continued problems with tobacco smoke in her workplace and have authority to take all necessary measures to reduce or eliminate tobacco smoke. The agency shall maintain a point of contact for at least two years after its receipt of this decision. 2. Within 60 calendar days of its receipt of this decision, the agency shall write a memo indicating the identities of those who met with the petitioner in the face-to-face consultation ordered above, what specific measures were agreed to, and what specific actions were taken to reduce or eliminate tobacco smoke in the petitioner's workplace and the identities of those who took the measures. The memo shall also include the identity of the above point of contact, and be provided to the petitioner upon being issued.2 3. The agency is ordered, within 90 calendar days of its receipt of this decision, to award the petitioner back pay, interest thereon, and all other benefits she would have received absent discrimination from December 29, 1992 through August 12, 1998. This shall not include back pay, interest thereon, and other benefits already paid the petitioner for this period. If there is a dispute about the amount of back pay, interest thereon, and/or other benefits, the agency is ORDERED to issue a check to the petitioner for the undisputed amount within 90 calendar days of the agency's receipt of this decision. The agency shall provide the petitioner with a copy of the above calculations. 4. The agency is ordered, within 30 days of its receipt of this decision, to adjust the petitioner's seniority to reflect what it The petitioner may petition for enforcement or clarification of this order with the Compliance Officer, at the address referenced in the statement entitled 'Implementation of the Commission's Decision.' The agency must submit a report of compliance to the Compliance Officer. The report shall include documentation that the ordered actions have been taken, and include the memo mentioned in paragraph 2 or this order, calculations of back pay, and documentation that the petitioner's seniority has been adjusted. The agency shall copy this report, with all enclosures, to the petitioner. 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). ATTORNEY'S FEES (H1092) If petitioner 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. See 64 Fed. Reg. 37,644, 37,659-60 (1999). 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. RIGHT TO FILE A CIVIL ACTION (Q0993) This decision affirms the agency's final decision in part, but it also requires the agency to continue its administrative processing of a portion of your complaint. You have the right to file a civil action in an appropriate United States District Court on both that portion of your complaint which the Commission has affirmed AND that portion of the complaint which has been remanded for continued administrative processing. 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 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: Frances M. Hart Executive Officer Executive Secretariat December 09, 1999 CERTIFICATE OF MAILING For timelines purpose, the Commission will presume that this decision was received within five (5) calendar days of mailing. I certify that the decision was mailed to petitioner, petitioner's representative (if applicable), and the agency on: ____________________ DEC 10 1999 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. 2. This decision does not enlarge the relief ordered in EEOC Request No. 05960436. Rather, it clarifies steps the agency must take to reduce or eliminate tobacco smoke in the petitioner's workplace.