01995935_r
07-27-2001
Larry Marsa, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Larry Marsa v. United States Postal Service
01995935
July 27, 2001
.
Larry Marsa,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01995935
Agency Nos. 4F-945-0042-99
4F-945-0089-96
Hearing No. 370-97-X2008
DECISION
The record reveals that in a previous complaint filed by complainant
(Agency No. 4F-945-0089-96), an EEOC Administrative Judge (AJ)
found that the agency had discriminated against complainant on the
basis of disability (lumbar strain) when he was terminated from his
Distribution Clerk position. The AJ also found that complainant had
not been discriminated against on the basis of disability (depression).
As corrective action, the AJ recommended that complainant be reinstated
to his Distribution Clerk position with back pay, interest, and benefits.
The AJ also recommended that reasonable costs and attorney's fees be
awarded. The AJ recommended that all managers at the Berkeley Post
Office receive training on the need to make an appropriate evaluation of
an employee's risk of future harm, and also that the agency post a notice.
In its decision dated January 12, 1998, the agency adopted the AJ's
findings with regard to the issue of discrimination. With regard to
relief, the agency modified the AJ's decision. The agency determined that
complainant would be reinstated to the position of Distribution Clerk
with back pay, interest, and benefits. The agency stated that back pay
would be reduced by any other earnings that complainant received since
his termination in December 1995. The agency stated that the appropriate
notice would be posted and that training regarding the Rehabilitation
Act would be provided to all managers at the Berkeley Post Office.
The agency also stated that complainant's legal representative should
submit a verified statement of costs and attorney's fees.
On December 28, 1998, complainant filed the instant complaint (Agency
No. 4F-945-0042-99) wherein he claimed that he had been subjected to
discriminatory harassment on the bases of his disability (�psychological�)
and in reprisal for his previous EEO activity under the Rehabilitation
Act when management failed to correct his employment history to ensure
a timely conversion to full-time status, and also failed to provide
him with copies of documentation showing calculations for back pay,
overtime, and interest. The complaint was accepted for investigation.
Subsequent to completion of the investigation, complainant requested
a hearing before an EEOC Administrative Judge. The AJ ruled that the
instant matter involves the agency's compliance with its remedy awarded
in the previous complaint, and that it should not have been processed as
a separate complaint. The AJ returned the instant matter to the agency
with the recommendation that the agency should dismiss the complaint
because it concerns the remedy ordered in the previous matter.
In its decision dated June 25, 1999, the agency dismissed the instant
complaint pursuant to 29 C.F.R. �1614.107(a)(1), on the grounds that
it states the same claim that is pending before or has been decided by
the agency or the Commission. The agency determined that complainant
claimed discrimination with regard to the implementation of the remedies
awarded him in the prior complaint.
On appeal, complainant contends that the instant complaint should not have
been dismissed and he also seeks enforcement of the agency's decision in
the prior complaint. With regard to the instant complaint, complainant
maintains that the agency has harassed him by failing to contact the
pay center; by failing to provide its calculations for his back pay,
overtime, and interest; and by failing to provide such information
despite numerous requests. Complainant stated that the agency did
not provide information about implementation of the agency decision,
including information concerning his step increases, cost of living
increases, lump sum awards under the union contract, and the restoration
of his retirement and Thrift Savings Plan accounts with interest to make
him whole. Complainant argues that he is entitled to be informed of
the agency's method and amount of its financial calculations in order
to assess whether he has been made whole. Complainant states that the
agency has made some payments, but that it has not explained its method
of calculation. Complainant argues that the agency improperly deducted
his unemployment insurance benefits from his back pay award.
Upon review of the record, we note that in a letter dated September 28,
1998, complainant's attorney notified the agency that complainant had
received back pay of $41,622.16 in gross pay and $22,119.96 in net pay.
Complainant's counsel stated that she could not figure out how the agency
arrived at those amounts, and she requested a copy of the agency's
calculations for back pay and deductions. By letter dated November
14, 1998, complainant's attorney informed the agency that the back pay
appeared to have been paid at the part-time flexible rate rather than the
full-time rate. According to complainant's counsel, complainant should
have been made a full-time regular during the time that he was off work.
A request was made again for the agency's back pay calculations.
The investigative record contains a copy of a check dated April 5, 1999,
in the amount of $5,595.89 made payable to complainant as interest on
his back pay award. The investigative record also contains information
pertaining to how the agency calculated complainant's back pay award.
Complainant argues that he was not provided with this information.
There is no indication in the record that complainant received information
about how the agency calculated his back pay award. In Antonio Vereb
v. Department of Justice, EEOC Petition No. 04980008 (February 26, 1999),
the Commission stated that in order to fully assess whether petitioner
was made whole, petitioner was entitled to be informed of the agency's
method and amount of its financial calculations, including gross wages
and amounts off set. Therefore, in the instant matter, we find that if
the agency has not already done so, it is directed to provide complainant
a full explanation of its back pay calculations, all employment benefits,
including retirement benefits, and interest.
The agency should also provide complainant with documentation indicating
when his employment was changed to a full-time status.
The agency is reminded that gross back pay includes all forms
of compensation such as wages, bonuses, and all other elements of
reimbursement and fringe benefits such as pension and health insurance.
We construe �benefits� broadly to include annual leave, sick leave,
health, overtime and premium pay, night differentials, and retirement
contributions. Vereb, supra.
Complainant is advised that should he disagree with the agency's
calculations, he then has thirty days, pursuant to 29 C.F.R. �1614.504(a),
in which to inform the agency of its failure to comply with its January
12, 1998 decision. Pursuant to 29 C.F.R. �1614.504(b), if complainant is
not satisfied with the agency's attempt to resolve the matter, complainant
may appeal to the Commission for a determination as to whether the agency
has complied with its decision.
Complainant claims in Agency No. 4F-945-0042-99 that the agency subjected
him to discriminatory harassment by not responding to his requests
for information about its calculations. We find that this claim is
inextricably intertwined with complainant's request that the agency
implement its remedy for Agency No. 4F-945-0089-96, and that it does
not state a separate claim.
The agency's dismissal of Agency No. 4F-945-0042-99 was proper and
is AFFIRMED. The agency is directed to comply with the ORDER set forth
herein with regard to Agency No. 4F-945-1089-96. This matter is hereby
REMANDED for further processing pursuant to the ORDER below.
ORDER
Within thirty (30) days of the date this decision becomes final, the
agency shall provide complainant with, in writing, a full explanation of
its back pay calculations, all employment benefits, including retirement
benefits, and interest. The agency shall also provide complainant with
documentation reflecting when his employment was changed to a full-time
status. A copy of the information sent to complainant shall be sent to
the Compliance Officer referenced herein.
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 RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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), 9-18 (November 9, 1999). All requests
and arguments must be submitted to the Director, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. 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 (T0900)
This decision affirms the agency's final decision/action 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 within ninety (90) calendar
days from the date that you receive this decision 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. 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 your appeal with the Commission, until
such time as the agency issues its final decision on your complaint.
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
July 27, 2001
__________________
Date