[Redacted], Wilburn M., 1 Petitioner,v.Pete Buttigieg, Secretary, Department of Transportation (Federal Aviation Administration), Agency.

Equal Employment Opportunity Commission

Feb 22, 2023

Appeal No. 2019005806 (E.E.O.C. Feb. 22, 2023)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Wilburn M.,1 Petitioner, v. Pete Buttigieg, Secretary, Department of Transportation (Federal Aviation Administration), Agency. Petition No. 2022004962 Request No. 2020002907 Appeal No. 2019005806 Agency No. 2011-23844-FAA-02 DECISION ON A PETITION FOR ENFORCEMENT On September 20, 2022, the Equal Employment Opportunity Commission (EEOC or Commission) docketed a petition for enforcement to examine the enforcement of an Order set forth in EEOC Request No. 2020002907 (April 28, 2021). The Commission accepts this petition for enforcement pursuant to 29 C.F.R. § 1614.503. BACKGROUND During the relevant time, Petitioner was an applicant for employment with the Agency, having applied for a vacancy in Fort Worth, Texas for the position of Airway Transportation Systems Specialist, FV-2101-J. Believing that his non-selection was discriminatory, Petitioner filed a formal EEO complaint based on race (African-American), sex (male), color (Brown), disability, age (y.o.b. 1947), and reprisal for prior protected EEO activity in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq., Section 501 of the Rehabilitation Act of 1973 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. 2022004962 2 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. On August 9, 2019, an EEOC Administrative Judge (AJ) issued a decision finding discrimination. The AJ determined that Petitioner established a prima facie case of discrimination. While the Agency proffered a legitimate reason - that the Selecting Official believed the Selectee was better qualified and Petitioner’s resume did not make it clear he had the required knowledge and skills - the AJ found the reasons were “not worthy of belief” because the Agency had prematurely destroyed the selection packages. Moreover, it was not the first time the Agency had failed to retain relevant records following notice that a complaint was filed. Applying an adverse inference, the AJ found that Petitioner was the superior applicant who should have been selected. Among other remedies, the Agency was ordered to retroactively place Petitioner in the position in question and provide back pay. On September 18, 2019, the Agency issued a final order rejecting the AJ’s decision and concurrently filed an appeal with the Commission. On appeal, the Agency challenged the AJ’s finding of discrimination and Petitioner disputed the denial of compensatory damages and reduced attorney’s fees. In EEOC Appeal No. 2019005806 (Feb. 25, 2020), the Commission upheld the finding of discrimination and ordered several remedies, including the retroactive placement of Petitioner in the Airway Transportation Systems Specialist position, and backpay. The Agency filed a Request for Reconsideration, which was denied, and the underlying order was reiterated. See EEOC Request No. 2020002907 (April 28, 2021). The Commission ordered, in relevant part, that the Agency: 1) With sixty (60) calendar days from the date this decision is issued, the Agency shall place Complainant into the position of Airway Transportation Systems Specialist, FV-2101-J (or substantially similar position), in Fort Worth, Texas, retroactive to February 19, 2011. The Agency shall also retroactively promote Complainant to the next step and/or grade, if appropriate under Agency policy, on the one-year anniversary of his placement and then on an annual basis or according to the Agency policy. (2) The Agency shall determine the appropriate amount of benefits (with interest and offsets) if applicable, due Complainant effective February 19, 2011 to the date of his placement in the position or the date he declines the position. Complainant shall cooperate in the Agency’s efforts to compute the amount of benefits due and shall provide all relevant information requested by the Agency. If there is a dispute regarding the exact amount of benefits, the Agency shall issue a check to Complainant for the undisputed amount within sixty (60) calendar days of the date the Agency determines the amount it believes to be due. Complainant may petition for enforcement or clarification of the amount in dispute. The petition for clarification or enforcement must be filed with the Compliance Officer at the Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, D.C. 2022004962 3 The matter was assigned to a Compliance Officer and docketed as Compliance No. 2021003111 on May 5, 2021. On November 4, 2021, Petitioner submitted the instant petition for enforcement. ANALYSIS AND FINDINGS EEOC Regulation 29 C.F.R. § 1614.503(a) provides that an aggrieved person may petition for enforcement of an order issued by the Commission under its appellate jurisdiction. In this case, Petitioner alleges that the Agency is not in compliance with the Commission's order in EEOC Appeal No. 2020002907. The issues identified to be determined in the instant action are: 1) the starting salary for the Airway Transportation Systems Specialist position offered to Petitioner, and 2) the offsets applied to the back pay award.2 On August 12, 2021, the Agency presented Petitioner with the job offer, with a salary of $121,919. Petitioner accepted the offer, but contends that the original August 31, 2011 vacancy announcement set his starting salary at $141,735. Additionally, he argues that his service computation date is incorrect. Regarding back pay, Petitioner’s attorney argues that the AJ’s award did not include offsets for Department of Labor benefits and, alternatively, the Agency is barred from now litigating such point. We shall address each in turn. Job Starting Salary The instant record contains a copy of Vacancy Announcement # AWA-AJE-10-JM78588- 124396 for the Airway Transportation Systems Specialist, FV-2101-J, open from August 31, 2010 through September 24, 2010. The announcement plainly states that the salary range for the position is $73,600 - $114,100 per year. Additionally, the position includes a “fixed location payment of $27,000.” Petitioner asserts in his petition that the AJ ordered his placement in the position at a starting salary of $141,735. This assertion, however, is not supported by the record. The AJ’s order, restated in the Commission’s decision and noted above, does not identify a specific salary amount. According to the record, in an August 12, 2021 written job offer, the Agency set Complainant’s starting salary at $121,919 (including locality pay), as well as a single payment of $27,000 for the permanent change in station (PCS).3 This starting salary was well within the range identified in the job announcement. To the extent that Complainant argues that his service computation date is incorrect, he has not described how the purported error impacts any of the remedies. If he is asserting that he is not a new hire, the pay rate assigned to him does not reflect that he was treated as such. Petitioner has not provided evidence showing that he is in fact entitled to a higher starting salary and the Agency’s calculations and payments were erroneous. 2 The Agency has provided documentation showing implementation of the remaining corrective actions are completed and not in dispute. 3 Complainant signed the offer and accepted the position on August 25, 2021. 2022004962 4 Back Pay Offsets The purpose of a back pay award is to restore Petitioner to the position he would have occupied, but for the discrimination. See Albemarle Paper Company v. Moody, 442 U.S. 405, 418-19 (1975); Davis v. United States Postal Service, EEOC Petition No. 04900010 (Nov. 29, 1990). It is well-settled Commission precedent that workers' compensation awards do not preclude recoveries for discrimination, such as back pay, where such awards do not result in a double recovery. See Sands v. Department of Defense, EEOC Petition No. 04990001 (Feb. 25, 2001). The Commission notes that 5 U.S.C. § 550.805(e), provides that in computing the “net amount of back pay payable,” the agency must make certain offsets and deductions from the gross back pay award, in a specified order, which must first include outside earnings (such as OWCP payments), followed by the usual payroll deductions for retirement contributions, taxes, etc. Cox v. United States Postal Service, EEOC 01A42102 (Sept. 21, 2004). Likewise, Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), 11-4 (Nov. 9, 1999) provides that “[a]ny portion of a FECA award attributable to lost wages during the backpay period in a discrimination finding will be deducted.”4 Therefore, in the instant case, we find that the Agency properly offset OWCP benefits and other deductions (including medical and life insurance premiums) from the total gross pay in determining the amount of back pay owed to Petitioner. The record contains Leave and Earnings Statements reflecting the total gross pay and deductions for OWCP benefits, covering the back pay period. Additionally, the Agency has provided an affidavit from an official from the OWCP who, having reviewed the payment history, attested that the OWCP payments made to Petitioner (between February 13, 2011 and July 17, 2021) were properly deducted. Attorney’s Fees In his petition Petitioner also seeks $7,000 in attorney’s fees for hours purportedly spent on the Agency’s request for reconsideration and the instant petition. In EEOC Request No. 2020002907, Petitioner was advised that he was entitled to reasonable attorney’s fees and to “submit a verified statement of fees to the Agency . . . within thirty (30) calendar days of the date this decision was issued.” The Agency argues that the request should be denied because Petitioner’s request was submitted months after the thirty-day time limit. Alternatively, the Agency requests a reduction in fees due to the inadequate statement provided in support. Petitioner was required to provide the Agency with a verified statement of fees by May 28, 2021. The record reflects, however, that Petitioner’s attorney did not do so until October 13, 2021. In the October 13, 2021 email, Petitioner’s attorney attached an earlier email to Petitioner containing a “Statement of Account”. The statement that followed simply stated: 4 The Agency maintains that “the OWCP benefits Complainant received were not for physical injury . . . [but for] lost wages.” 2022004962 5 November 2019 $5,000 for appellee briefs March 2020 $2,500 opposition for reconsideration $7,500 We note that the Agency filed its request for reconsideration on March 26, 2020, revealing the work done in November 2019 was unrelated.5 As for the $2,500 requested for “opposition for reconsideration”, the Statement of Account also noted: April 1 to April 10, 2020 - Review Motion, Legal Research, draft, review and revise response. Conference with client online. 10 hours @ $250/hr. We agree with the Agency that the request for fees is lacking. Additionally, we note the effort to obtain double payment for work preceding the Agency’s request for reconsideration. The Commission has previously denied fees where Petitioner’s request is untimely. See Lazaro G. v. Dep’t of Commerce (Patent & Trademark Office), EEOC Appeal No. 0120181501 (Feb. 21, 2020). The record reflects that Petitioner’s request was more than four months after the expiration of the time limit. Therefore, we find that he is not entitled to such fees. CONCLUSION After a review of the record, we find that Petitioner has failed to show the Agency is not in compliance with the order in EEOC Request No. 2020002907. Therefore, the Commission DENIES Petitioner’s petition. There is no right of administrative appeal from this denial. COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (P0610) This decision of the Commission is final, and there is no further right of administrative appeal from the 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 (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. 5 We note that the Agency has been found to have complied with our prior Order to provide payment for attorney’s fees for work done through the decision on appeal. 2022004962 6 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 February 22, 2023 Date