0520160465
08-30-2016
Derrick T.,1 Complainant, v. Ray Mabus, Secretary, Department of the Navy, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Derrick T.,1
Complainant,
v.
Ray Mabus,
Secretary,
Department of the Navy,
Agency.
Request No. 0520160465
Appeal No. 0120151040
Hearing No. 430-2016-00213X
Agency No. 126141403017
DECISION ON REQUEST FOR RECONSIDERATION
Complainant requested that the Equal Employment Opportunity Commission (EEOC or Commission) reconsider the decision in EEOC Appeal No. 0120151040 (May 13, 2015). EEOC regulations provide that the EEOC may, in its discretion, grant a request to reconsider any previous decision where the requesting party demonstrates that: (1) the appellate decision involved a clearly erroneous interpretation of material fact or law; or (2) the appellate decision will have a substantial impact on the policies, practices, or operations of the agency. See 29 C.F.R. � 1614.405(c).
After reconsidering the previous decision and the entire record, it is the decision of the EEOC to VACATE the previous decision in EEOC Appeal No 0120151040.
BACKGROUND
Complainant was employed by the Agency as a Police Officer, GS-0083-05, at the Regional Public Safety Program, Security in Yorktown, Virginia.
Complainant filed an EEO complaint alleging discrimination based on religion (Muslim) and race (African-American) when:
(1) From October 2011, he was subjected to a hostile work environment. In support of his claim, Complainant alleged that the following events occurred:
a. On November 18, 2011, Complainant informed his supervisor (Supervisor) that two of his coworkers were verbally abusive to him. After Complainant informed the Supervisor of the harassment, he told Complainant that he would inform the Supervisor Police Officer and Complainant was not to discuss the issues with anyone. However, the management officials did not rectify the matter;2
b. On February 21, 2012, Complainant informed the Supervisor of continuous harassment and escalating hostilities from his coworkers;
c. On July 6, 2012, the Supervisor told Complainant he discussed Complainant's concerns of harassment and discrimination with the Commander, but he did not want to "rock the boat" so the Supervisor told Complainant he would address his concerns with the Major;
d. On July 6, 2012, the Supervisor informed Complainant that he completed the terms of his probation and successfully reached his full performance level; and throughout Complainant's periodic performance evaluations. Complainant was told he was doing an outstanding job; and
e. On July 9, 2012, the Supervisor told Complainant he "never saw a probationary police officer referred for a supervisory position and it must be nice to have a fellow Muslim brother in the White House" and then the Supervisor laughed and stated he was kidding.
(2) In July 2012, Complainant was not selected for a Supervisory Police Officer, GS-0083-06, GS-07 position, vacancy announcement number EA20083-07-678725MJ340152 located at Northwest Annex, Naval Weapons Stations Yorktown.
(3) On August 10, 2012, Complainant was terminated during his probationary period for failure to fully demonstrate his qualifications for continued employment.
The complaint was accepted by the Agency for investigation. When the Agency failed to conclude the investigation within the regulatory timeframe, Complainant requested a hearing before an EEOC Administrative Judge (AJ). On April 23, 2013, the AJ issued an order for the Agency to produce the investigative report and complaint file within 15 calendar days. The Agency provided the investigative report to the AJ on June 10, 2013.
The AJ issued a default judgment against the Agency as a sanction. The AJ noted that the Agency did not actually begin the investigation until April 23, 2013, well beyond the 180-day deadline for completing the investigation, and did not provide the investigative record to the AJ until June 10, 2013, well beyond the 15-day requirement indicated in the April 23, 2013 order. The AJ concluded that the Agency failed to provide sufficient cause for its failure to conduct a timely investigation. Therefore, the AJ issued a default judgment against the Agency as a sanction.
In addition, the AJ noted that the record was sufficient to satisfy Complainant's entitlement to remedies. The AJ held that Complainant had provided sufficient evidence to establish a prima facie case of harassment and unlawful termination based on his religion and race. The AJ determined that Complainant did not establish a prima facie case based on the non-selection for the Supervisory Police Officer position.
In order to remedy Complainant for the discrimination, the AJ ordered Complainant to be reinstated to his position with the Agency back pay, interest, and other benefits for the period of August 2012 through the date of reinstatement. The AJ provided that the back pay award was to be reduced by the amount of workers' compensation benefits received by Complainant during the relevant period. The AJ also provided a procedure for Complainant to notify and be compensated any adverse tax consequences related to receiving the lump sum payment for back pay. Finally, the AJ ordered the Agency to pay compensatory damages, to provide attorney's fees and costs, and to provide EEO training to Agency management.
The Agency issued its final order on August 4, 2014, adopting the AJ's decision. On January 22, 2015, Complainant filed an appeal with the Commission. The appeal was docketed as EEOC Appeal No. 0120151040. On May 13, 2015, this appeal was dismissed as untimely finding that Complainant filed his appeal of the Agency's final order several months after the Agency issued its decision.
Upon review of the prior record in EEOC Appeal No. 0120151040, we find that the appeal was improperly characterized as an appeal of the Agency's final order. A closer reading of that appeal reveals that Complainant was instead asserting that the Agency had failed to comply with the AJ's remedial orders, which had been adopted by the Agency in its final order. As such, Complainant filed his appeal pursuant to 29 C.F.R. � 1614.504. Therefore, we vacate our previous decision finding the appeal untimely. Because we are vacating our previous decision, we will now consider the merits of the underlying case, as well as arguments the parties originally submitted on appeal below.
ANALYSIS AND FINDINGS
Under EEOC regulation 29 C.F.R. 1614.504, a complainant who is not satisfied with the agency's attempt to resolve a final action that has not been the subject of an appeal or civil action, may appeal to the Commission for a determination as to whether the agency has complied with the terms of the decision.
The record shows that Complainant was reinstated to his former position effective October 6, 2014. The Agency has also paid Complainant $40,000 in non-pecuniary compensatory damages and $27,123.19 in attorney's fees and costs. Therefore, it appears that the controversy over the Agency's compliance with its August 4, 2014 final action centers on the issue of the amount of back pay due Complainant for the period between August 2012 and his reinstatement to employment.
The purpose of a back pay award is to restore to Complainant the income he would have otherwise earned, but for the discrimination. See Albemarle Paper Co. v. Moody, 422 U.S. 405 (1975); Davis v. U.S. Postal Serv., EEOC Petition No. 04900010 (Nov. 29. 1990). Back pay should include all forms of compensation and must reflect fluctuations in working time, overtime rates, penalty overtime, Sunday premium and night work, changing rate of pay, transfers, promotions, and privileges of employment to which Complainant would have been entitled but for the discrimination. See Ulloa v. U.S. Postal Serv., EEOC Petition No. 04A30025 (Aug. 3, 2004) (citing Allen v. Dep't. of the Air Force, EEOC Petition No. 04940006 (May 31, 1996)); Perez v. U.S. Postal Serv., EEOC Petition No. 04A40041 (Mar. 3, 2005).
The Commission realizes that precise measurement cannot always be used to remedy the wrong inflicted and that the computation of back pay awards inherently involves some speculation. Harms v. U.S. Postal Serv., EEOC Petition No. 04960030 (Sept. 18, 1997). Nonetheless, uncertainties involved in a back pay determination should be resolved against the Agency, which has already been found to have committed the acts of discrimination. Id.; see Kloockv. U.S. Postal Serv., EEOC Petition No. 04A40012 (June 16, 2004).
The record shows that, in November 2014, the Agency made a partial payment of the back pay award in the amount of $36,546.81 (gross) reflecting pay for the period from October 6, 2013 to the date of his reinstatement in October 2014.3 The Agency then requested certain documentation related to alternative employment and workers' compensation payments from Complainant in order to determine any offsets to the final back pay award.
Complainant has argued to that he has not been paid the correct amount of back pay, benefits and interests for the period of August 2012 through his reinstatement in October 2014. Complainant asserts that the Agency has refused to provide him with the calculations utilized to determine the appropriate amount of back pay (with interest) and other related benefits including overtime, night differentials, step increases, cost of living adjustments, and bonuses commensurate with comparable coworkers. Because the Agency has not provided Complainant with the information regarding the back pay calculations, he argues that he has not been able to show any adverse tax consequences related to the lump sum payment. Complainant also request that he be provided with annual and sick leave balances that he would have accrued over the period between his termination and reinstatement.
The Agency responds by stating that it has already paid Complainant a partial payment of $36,546.81 (gross pay), which it seems to claim includes two step increases on August 25, 2013 and August 24, 2014. The Agency asserts that it has also paid Complainant a uniform allowance of $852.00 and night differential pay of $1,173.00. The Agency argues that it was delayed in calculating the final amount due in back pay because of Complainant's failure to provide it the offset information it requested, including Complainant's W-2 forms reflecting his alternative employment with the Department of Corrections and information related to his benefits received through the Office of Workers' Compensation Programs (OWCP).
In the instant case, we find that the record is inadequately developed for us to determine whether the Agency has complied with the AJ's order regarding back pay. We note that the Agency has indicated that Complainant has now provided all the documents the Agency sought in order to calculate any offsets to his back pay. However, while the record shows the Agency made a partial payment to Complainant reflecting a one-year period, the Agency has not provided evidence of its final payment to Complainant reflecting the entire period from his August 10, 2012 termination date to his reinstatement in October 2014. For all payments, the Agency has not provided any detail to indicate what amounts have been withheld from the gross and what offsets have been applied. Moreover, the Agency has not provided any detailed information on how it calculated the back pay award, including the methodology and accounting for determining overtime, night differentials, step increases, bonuses, and cost of living increases. Finally, the Agency has not indicated what, if anything, it has done to address Complainant's request for restoration of his leave balances.
CONCLUSION
After reconsidering the previous decision and the entire record, it is the decision of the Commission to VACATE our previous decision dismissing the appeal as untimely and REMAND the matter for further action in accordance with the following Order.
Because the propriety of Complainant's claim of non-compliance with the Agency's final order has been addressed herein for the first time, the parties will be given reconsideration rights.
ORDER
The Agency is ordered to take the following remedial action:
I. Within 60 days of the date this decision becomes final, and taking into consideration the findings in this decision, the Agency shall re-determine the appropriate amount of back pay due Complainant with interest, including all other benefits due Complainant, pursuant to 29 C.F.R. �1614.501, and shall issue Complainant a check for any amounts due.
At the same time, the Agency shall provide Complainant and his attorney with a detailed accounting of the Agency's calculations, with an appropriate explanation regarding the sources from which specific figures were derived and formulas used to calculate the amounts reflected in payments made to Complainant. The Agency's explanation shall specifically address the amounts of overtime paid as it relates to similarly-situated Police Officers during the subject time period. All amounts withheld (taxes, social security, TSP, etc.) and/or offset from the gross back pay due Complainant shall be explained and documented.
II. After the Agency has provided Complainant with the final back pay award, Complainant will provide the Agency with any additional information needed to indicate any tax consequence he experiences based on the lump sum payments he has received.
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 (H0610)
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 (K0610)
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 77960, Washington, DC 20013. 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 RIGHTS - ON APPEAL
RECONSIDERATION (M0416)
The Commission may, in its discretion, reconsider the decision in this case if the Complainant or the Agency submits a written request containing arguments or evidence which tend to establish that:
1. The appellate decision involved a clearly erroneous interpretation of material fact or law; or
2. The appellate decision will have a substantial impact on the policies, practices, or operations of the Agency.
Requests to reconsider, with supporting statement or brief, must be filed with the Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision or within twenty (20) calendar days of receipt of another party's timely request for reconsideration. See 29 C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9 � VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. The requests may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, the request to reconsider shall be deemed timely filed if it is received by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. � 1614.604. The request or opposition must also include proof of service on the other party.
Failure to file within the time period will result in dismissal of your request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted with your request for reconsideration. The Commission will consider requests for reconsideration filed after the deadline only in very limited circumstances. See 29 C.F.R. � 1614.604(c).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (R0610)
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 (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant's Right to File a Civil Action for the specific time limits).
FOR THE COMMISSION:
______________________________ Carlton M. Hadden's signature
Carlton M. Hadden, Director
Office of Federal Operations
August 30, 2016
__________________
Date
1 This case has been randomly assigned a pseudonym which will replace Complainant's name when the decision is published to non-parties and the Commission's website.
2 Complainant provided the following examples of the coworkers' harassment: Complainant was told by other officers that they "hated Muslims and Arabs who pretended to be Americans." In addition, Complainant was accused of being the ''uni-bomber" and referred to as a "nigger Muslim."
3 The Agency claimed that it made the payment for only one year of the back pay period while it was waiting for further documentation from Complainant so that he did not incur an overpayment.
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