01A30237_r
05-15-2003
Robert C. Treadway, Complainant, v. Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.
Robert C. Treadway v. Department of Veterans Affairs
01A30237
May 15, 2003
.
Robert C. Treadway,
Complainant,
v.
Anthony J. Principi,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01A30237
Agency No. 97-0708
Hearing No. 170-97-8391X
DECISION
Complainant alleged discrimination on the basis of disability when he was
not selected for a GS-083-05 Police Officer position, advertised under
Vacancy Announcement Number (VAN) OCA-05-96-07. An EEOC Administrative
Judge (AJ) conducted a hearing, and on August 24, 1999, found the agency
liable for disability discrimination in violation of Section 501 of
the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29
U.S.C. � 791 et seq. The AJ ordered the agency to provide, inter alia,
compensatory damages and back pay. In its October 5, 1999 final decision,
the agency adopted the AJ's finding of disability discrimination, refused
to provide complainant with compensatory damages, but informed complainant
it would compute complainant's back pay, and provide complainant a
separate opportunity to appeal their calculations to the Commission.
Complainant appealed the agency's denial of compensatory damages, but
the Commission affirmed the agency. Treadway v. Department of Veterans
Affairs, EEOC Appeal No. 01A01578 (Oct. 18, 2002).
Meanwhile, on November 5, 1999, the agency notified complainant of
its back pay calculations, and informed complainant he could challenge
their calculations. Complainant appealed in the instant matter, arguing
that the agency's back pay calculation made no reference to interest,
promotions complainant would have received if he had been selected,
or premium pay differentials. Complainant does not deny receipt of the
net back pay award.
In its November 5, 1999 letter, the agency awarded complainant $3,976.82
in back pay, reduced to a net award of $2,305.34 after taxes and
other normal deductions. The agency calculated complainant's back
pay from October 13, 1996, the date the selectee assumed the position
complainant was unlawfully denied, until complainant's retirement on
August 16, 1997. It assumed complainant would have worked the same
days and hours as the selectee. Therefore, it added premium pay for
all days the selectee worked nights, Sundays, holidays, and/or overtime.
To calculate its final back pay figure, the agency subtracted the wages
complainant earned as an agency Transfer Clerk from the salary he would
have received. Neither the agency's November 5, 1999 decision, nor its
attached calculations make any reference to the interest accrued on the
back pay award.
Where discrimination is found and back pay awarded, the back pay must
be calculated as prescribed in 5 C.F.R. � 550.805. See 29 C.F.R. �
1614.501(c)(1). Complainant contends that he was due additional premium
pay, but provides no evidence that the agency failed to calculate all of
the premium pay opportunities he would have received. He also contends
that he would have received a promotion in the position, but provides
no evidence that the selectee received a promotion, or that complainant
otherwise would have been entitled to a promotion. Therefore, the
Commission finds no error in the agency's calculation of $3,976.82 in
gross back pay.
The agency's calculation, however, is not complete. Interest on back pay
shall be included in the back pay computation where sovereign immunity
has been waived. Id. In the Civil Rights Act of 1991, Congress
amended Title VII to provide for �the same interest to compensate
for delay in payment . . . as in cases involving nonpublic parties.�
42 U.S.C. � 2000(e)-16(d); Trout v. Secretary of the Navy, 317 F.3d
286, 289-290 (D.C. Cir. 2003), reh'g den., 2003 U.S. App. LEXIS 6063
(D.C.Cir. Mar. 28, 2003), reh'g en banc den., 2003 U.S. App. LEXIS
6058 (D.C.Cir Mar. 28, 2003) (finding although interest available
for claims occurring after Civil Rights Act of 1991 enacted, did not
apply retroactively); Brown v. Secretary of the Army, 78 F.3d 645, 647
(D.C. Cir. 1996), cert. den. sub nom., Brown v. West, 519 U.S. 1040
(1996). Although the Rehabilitation Act does not provide for interest,
�it expressly incorporates the �remedies, procedures and rights'�
accorded Title VII complainants. Arneson v. Callahan, 128 F.3d 1243,
1246 (8th Cir. 1997), cert. den. sub nom., Arneson v. Apfel, 524 U.S. 926
(1998); Estate of Reynolds v. Martin, 985 F.2d 470, 472 (9th Cir. 1993),
reh'g en banc den., 994 F.2d 690 (9th Cir. 1993).
In the Civil Rights Act of 1991, Congress waived the government's
sovereign immunity with respect to interest on back pay awards
in Rehabilitation Act employment discrimination cases. Cf. Mason
v. Department of Defense, EEOC Appeal No. 01944837 (Mar. 14, 1995)
(citations omitted) (finding interest on back pay available to Title VII
complainant due to Congress's waiver of sovereign immunity in 1987 Back
Pay amendments). Therefore, complainant is entitled to interest on his
back pay award in the present case. Neither the agency's calculations
nor its �Record of Salary Payment� include any interest calculations.
Complainant contends, without contradiction, that the agency never
calculated interest. Therefore, we conclude that by failing to show
that it has paid complainant interest on the back pay award, the agency
has failed to comply with the agency's October 5, 1999 decision awarding
complainant back pay. On remand, the agency must calculate the interest
complainant is entitled to receive on the back pay award.
CONCLUSION
Accordingly, we find that the agency has failed to comply with the
interest on the back pay award provided in the agency's October 5,
1999 decision. The matter is REMANDED to the agency for appropriate
calculations and payment.
ORDER
The agency shall calculate the interest complainant is due on the back pay
award he appears to have received. This calculation must be conducted
in accordance with the provisions of the Back Pay Act, and applicable
regulations. The calculations must be completed, and payment made, within
30 calendar days of the date this decision becomes final. A copy of
the agency's interest calculations, and proof of payment to complainant,
must be forwarded to the Compliance Officer as referenced below.
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 (R0900)
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 (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
May 15, 2003
__________________
Date