[Redacted], Gerard K., 1 Petitioner,v.Louis DeJoy, Postmaster General, United States Postal Service (Capital Metro Area), Agency.

Equal Employment Opportunity Commission

Nov 5, 2020

Appeal No. 0120170464 (E.E.O.C. Nov. 5, 2020)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Gerard K.,1 Petitioner, v. Louis DeJoy, Postmaster General, United States Postal Service (Capital Metro Area), Agency. Petition No. 2020001724 Appeal No. 0120170464 Hearing Nos. 531-2011-00122X, 531-2012-00029X Agency Nos. 1K-204-0009-10, 1K-204-0009-11 DECISION ON A PETITION FOR ENFORCEMENT The Equal Employment Opportunity Commission (EEOC or Commission) docketed a petition for enforcement on its own motion to examine the enforcement of an Order set forth in EEOC Appeal No. 0120170464 (February 8, 2017). See 29 C.F.R. § 1614.503. BACKGROUND At the time of events giving rise to this complaint, Petitioner worked as a Supervisor of Maintenance Operations, EAS-17, at the Agency's Southern Maryland Processing and Distribution Center (P&DC) in Capital Heights, Maryland. On March 26, 2010, and May 4, 2011, Petitioner filed EEO complaints alleging that the Agency discriminated against him on the bases of race (African-American), sex (male), age (over 40), and reprisal for prior protected EEO activity when he was not selected for any of 21 positions. Following the Agency's investigations, Petitioner requested a hearing before an EEOC Administrative Judge (AJ). 1 This case has been randomly assigned a pseudonym which will replace Petitioner’s name when the decision is published to non-parties and the Commission’s website. 2020001724 2 The AJ assigned to the case issued judgment in Petitioner's favor on April 15, 2016, finding that the Agency was in default for failing to comply with discovery orders and for failing to retain documentation related to some of the non-selections at issue. As a result of entering a default judgment, the AJ ordered the Agency to promote Petitioner into the position of Manager In-Plant Support (MIPS), EAS-25, with back pay and interest. The AJ also ordered the Agency to award Petitioner $23,000 in non-pecuniary compensatory damages and provide Petitioner with attorney's fees and costs. On June 8, 2016, the Agency issued its final order fully implementing the AJ's decision in Petitioner's favor. The Agency thereafter tendered two checks to Petitioner in the amounts of $23,000 and $70,639.61 for compensatory damages, and attorney's fees and costs, respectively. A Compliance Officer with the Agency then notified Petitioner, indicating that the SF-50 documenting Petitioner's promotion showed an effective date of July 23, 2016, retroactive to 2010. The Agency's Counsel however notified Petitioner that he was not entitled to back pay because he received more as an EAS-17, with overtime and premiums, than he would have received if he were promoted to the EAS-25 level, as a MIPS. Petitioner, through his attorney, thereafter filed an appeal with the Commission, asserting that the Agency failed to calculate the appropriate amount of salary and back pay for him. Petitioner also contended that the Agency had not taken steps to make the appropriate contributions to his Thrift Savings Plan (TSP) based on the change to his base pay due to his retroactive promotion. The Agency responded that the TSP employer contributions could not be made until it completed the processing of Petitioner's retroactive promotion. The Agency stated that it completed the calculations of Petitioner's TSP earnings, but Petitioner had not yet signed administrative Form 8039, “Back Pay Decision/Settlement Worksheet.” In Appeal No. 0120170464, the Commission found that Petitioner did not establish that the Agency’s back pay calculations were incorrect. In so finding, the Commission noted that Petitioner did not show that he would have earned more during the pack pay period as an EAS- 25 than he did as an EAS-17. With regard to TSP contributions, the Commission remanded the matter to the Agency for it to provide documentation showing that it had credited the appropriate amount to Petitioner’s TSP account. The Commission therefore ordered the Agency to: [P]rovide Petitioner with a detailed statement of its calculations and payments made regarding his TSP account. Specifically, the Agency will clearly document its calculations for all Agency TSP contributions and for lost earnings on Petitioner's TSP account. The Agency will provide documentation showing that it has tendered the appropriate payment for back-contributions and lost earnings. The Commission further directed the Agency to submit a report of compliance, verifying that the corrective action had been implemented. The matter was docketed for compliance monitoring on February 14, 2019, as Compliance No. 2019001735. Thereafter, based on the Agency's failure to respond to requests for documentation concerning compliance with this order, the Commission docketed the instant petition for enforcement on January 10, 2020. 2020001724 3 ANALYSIS AND FINDINGS EEOC Regulations 29 C.F.R. § 1614.502(a) and § 1614.503 provide that relief ordered in a final EEOC decision is “mandatory and binding” on the agency. The regulations also provide that, on behalf of the Commission, its Office of Federal Operations (OFO) “shall take all necessary action to ascertain whether the agency is implementing the decision of the Commission.” Finally, the regulations provide that failure to implement EEOC orders will subject the agency to a variety of enforcement actions, including the issuance of a notice to show cause to the head of the agency, a referral to the Office of Special Counsel, and/or judicial enforcement. Here, the Agency has stated that it completed the calculations of Petitioner's TSP earnings, but Petitioner had not yet signed administrative Form 8039. Nevertheless, to date, the Agency has not provided documentation to the Commission showing that it actually implemented the ordered corrective action. Based on the Agency's failure to provide evidence of its compliance with the Commission’s order in Appeal No. 0120170464, the Commission directs the Agency to immediately take action consistent with the Order below. ORDER Within thirty (30) calendar days of the date this decision is issued, the Agency shall provide the Commission with a compliance report containing adequate evidence that it has fully complied with the following Order set forth in Appeal No. 0120170464: The Agency will provide Petitioner with a detailed statement of its calculations and payments made regarding his TSP account. Specifically, the Agency will clearly document its calculations for all Agency TSP contributions and for lost earnings on Petitioner's TSP account. The Agency will provide documentation showing that it has tendered the appropriate payment for back- contributions and lost earnings. Petitioner must cooperate in the Agency's efforts to resolve this matter. IMPLEMENTATION OF THE COMMISSION’S DECISION (K0719) Under 29 C.F.R. § 1614.405(c) and §1614.502, compliance with the Commission’s corrective action is mandatory. Within seven (7) calendar days of the completion of each ordered corrective action, the Agency shall submit via the Federal Sector EEO Portal (FedSEP) supporting documents in the digital format required by the Commission, referencing the compliance docket number under which compliance was being monitored. Once all compliance is complete, the Agency shall submit via FedSEP a final compliance report in the digital format required by the Commission. See 29 C.F.R. § 1614.403(g). The Agency’s final report must contain supporting documentation when previously not uploaded, and the Agency must send a copy of all submissions to the Petitioner and his/her representative. 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). 2020001724 4 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. Failure by an agency to either file a compliance report or implement any of the orders set forth in this decision, without good cause shown, may result in the referral of this matter to the Office of Special Counsel pursuant to 29 C.F.R. § 1614.503(f) for enforcement by that agency. 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. 2020001724 5 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 November 5, 2020 Date