William J. Henderson, ) Request No. 05950523

Equal Employment Opportunity CommissionAug 5, 1999
04980005 (E.E.O.C. Aug. 5, 1999)

04980005

08-05-1999

William J. Henderson, ) Request No. 05950523


Loretta B. McKinney v. United States Postal Service

04980005

August 5, 1999

Loretta B. McKinney, )

Petitioner, )

)

v. )

) Petition No. 04980005

William J. Henderson, ) Request No. 05950523

Postmaster General, ) Appeal No. 01940021

United States Postal Service, ) Agency No. 2G-1176-92

Agency. )

)

GRANTING OF PETITION FOR ENFORCEMENT

The petitioner, by and through her attorney, submitted letters to

the Equal Employment Opportunity Commission (Commission) requesting

enforcement of the Commission's order in McKinney v. United States Postal

Service, EEOC Request No. 05950523 (August 15, 1996). The Commission

docketed the letters as a Petition for Enforcement in accordance with

29 C.F.R. �1614.503(a). The petition was properly filed.

ISSUE PRESENTED

Whether the agency complied with the Commission's order to provide the

petitioner with back pay, interest and all other benefits she would have

received absent discrimination.

BACKGROUND

The decision in EEOC Request No. 05950523 found that the petitioner was

discriminated against on the basis of her disabilities when the agency

terminated her limited duty assignment on November 7, 1991. She did not

return to work at the agency.

The above decision ordered the agency, in relevant part, to provide

the petitioner back pay, interest and all other benefits she would have

received absent discrimination from November 7, 1991 to the date on which

the agency proposed to reinstate the petitioner, and referred to pertinent

Office of Personnel Management Regulations. It also ordered that the

agency's report of compliance to the Commission include supporting

documentation of the agency's calculation of back pay, interest and

other benefits, and be copied to the petitioner.

Thereafter, the petitioner advised the agency that she did not wish

to be reinstated. The agency determined that the back pay period was

from November 7, 1991 through September 8, 1997, and the parties do not

contest the length of the back pay period.

The agency found that the petitioner's retroactive gross pay during

the back pay period was $228,620.77. Its payment to her was based on

gross pay less $67,638.58 it found the petitioner received in disability

retirement annuity payments during the back pay period, and less the

petitioner's retroactive contributions during the back pay period for

social security, retirement, Medicare, federal tax, health benefits and

state tax. The agency issued the petitioner a check for $74,034.71.

In her petition for enforcement, the petitioner argues that her gross

pay should have included any increases she would have received during

the back pay period, i.e., cost-of-living increases and merit increases.

She argues that the agency's determination of gross pay apparently did

not include these increases.

Next, the petitioner argues that back pay includes compensation for

retroactive "vacation pay" (presumably annual leave) and sick leave

earned. Further, the petitioner argues that back pay includes the value

of lost health and life insurance benefits.

She requests that the agency be ordered to exercise due diligence and

comply with the Commission's order, and that it be directed to send

her supporting documentation of the agency's calculation of back pay,

interest, and benefits.

A review of the record reveals that the Office of Personnel Management

(OPM) provided the agency calculations of retirement annuity payments

the petitioner received for the period of December 10, 1991 to September

8, 1997, which was during the back pay period. It indicated that the

petitioner received a total of $67,160.90 in annuity payments, but owed

$477.68 in life insurance premiums (for coverage during the back pay

period). Under the label of "annuity payments," the agency deducted the

sum of these two figures ($67,638.58). OPM also indicated it deducted

$6,459.01 in health and $1,116.59 in life insurance benefits from the

above annuity payment sum, and that the "net overpayment" was $60,062.98

($67,160.90 + 477.68 less $6,459.01 and less $1,116.59). Not taking into

account the amounts the petitioner paid in health and life insurance

premiums, the agency deducted the full annuity payment of $67,638.58.

The petitioner submitted a statement to the agency indicating that she

earned income from outside employer(s) during the back pay period, but it

was not clear which sums she listed referred to this income. The agency

does not explain how this figured into its calculations of back pay.

ANALYSIS AND FINDINGS

The Commission ordered that the agency's report of compliance include

supporting documentation of its calculation of back pay, interest and

other benefits. The calculations the agency has submitted, however,

are not sufficiently specific, and do not allow a complete resolution

of the petitioner's claim.

The agency's calculations do not show how it arrived at its gross pay

figure. We are unable to discern whether the gross pay figure included

cost-of-living and merit increases, interest, and the monetary value

of annual leave accrued during the back pay period, all things to which

she is entitled.

With regard to sick leave, the petitioner is not entitled to a lump-sum

monetary payment. Instead, it should be used in the computation of her

disability retirement annuity. 5 C.F.R. �630.407, Edwards v. Office

of Personnel Management, 31 MSPR 595 (October 31, 1986), Harrington

v. Tennessee Valley Authority, EEOC Petition Nos. 04900007, footnote 11

(December 27, 1990).

With regard to health insurance, an award of back pay should compensate a

prevailing complainant for loss of health insurance coverage by either:

(1) reimbursing her for health insurance premiums paid to continue in

an agency-sponsored insurance plan or to secure alternative coverage;

or (2) paying her for uninsured medical expenses incurred during the

relevant period up to the amount the agency would have contributed to his

health insurance premiums. Wrigley v. United States Postal Service, EEOC

Petition No. 04950005 (February 15, 1996). A complainant is not required

to pay twice for health insurance coverage during the back pay period.

An agency must reimburse a complainant for the amount that she spent in

procuring substitute health insurance. Id.

Via deductions by OPM from her disability retirement annuity, the

petitioner paid health insurance premiums during the back pay period in

the amount of $6,459.01. The agency, however, also deducted $2,267.10

in health insurance premiums the petitioner would have paid had she

been working. As the $2,267.10 would have been deducted had the

petitioner been working, the agency properly deducted this amount.

However, the agency must reimburse the petitioner in the amount of

$6,459.01, since she would not have paid this sum had she been working.

Further, the petitioner is entitled to interest on this latter amount.

Harrington v. Tennessee Valley Authority, EEOC Petition No. 04920010

(December 10, 1993).

Finally, with regard to life insurance, the OPM calculations indicated

that the petitioner continued her Federal Employees Group Life Insurance

Program (FEGLIP) during retirement. Specifically, from December

10, 1991 to June 30, 1992, the petitioner had in effect FEGLIP Basic,

Standard, Additional Optional, and Family life insurance. OPM wrote that

she canceled her standard and additional option coverage as of June 30,

1992, and that premiums in the amount of $477.68 for this coverage during

the above period were not collected. OPM's calculations indicate that

from December 10, 1991 to September 8, 1997, the petitioner had basic

and family life insurance, and paid via deductions from her annuity by

OPM $1,116.59 for this coverage. All the above dates were during the

back pay period.

The back pay award must put petitioner in the same financial position she

would have been in had the improper action never occurred. Petitioner

paid for life insurance coverage during her erroneous retirement.

These payments should be credited to her. However, the premiums for the

same type of coverage of life insurance are chargeable to petitioner as

an active employee. 64 Comp. Gen. 435 (1985). Therefore in computing the

award, the agency should consider the amount that petitioner paid during

her erroneous retirement period, as compared to the amount she would have

paid as an active employee. If petitioner paid more during her erroneous

retirement, the agency shall refund the difference with interest.

The petitioner argues that back pay includes the value of lost life

insurance benefits. Since she does not claim that she lost the collection

of any death benefits, her argument is not persuasive.

Accordingly, the agency shall comply with the order below.

CONCLUSION

Based on a review of the record, and for the foregoing reasons, the

Commission grants the Petition for Enforcement of the order in McKinney

v. United States Postal Service, EEOC Request No. 05950523 (August 15,

1996). The agency shall take the actions below.

ORDER

1. The agency shall submit a report of compliance to the Commission,

with a copy to the petitioner, that breaks down how it arrived at its

back pay figures. Specifically, the calculations shall, for the entire

back pay period, be broken down on a biweekly or monthly basis so as

to correspond with the payments the petitioner would have received had

she been working for the agency. The calculations shall explicitly

identify the petitioner's gross salary payments, any cost-of-living or

merit increases made, the monetary value of any retroactive benefits

earned, such as annual leave, and all deductions made. All these

figures shall then be individually totaled on a yearly basis, and then

totaled for the entire back pay period. The agency shall also provide

calculations regarding any interest payments made, either separately or

along with the above calculations. It shall identify which of the above

figures were included in the gross pay amount it previously found the

petitioner retroactively earned. Any codes used in the calculations

shall be explained and identified, so that an independent party can

readily decipher the calculations.

2. If it was not included in its payment of back pay to petitioner,

the agency is liable to petitioner for cost of living increases, merit

increases, and interest.

3. If it was not included in its payment of back pay to the petitioner,

the agency is liable to the petitioner for a lump-sum payment for the

cash value of the annual leave she earned during the back pay period,

with interest.

4. The agency is liable to the petitioner in the amount of $6,459.01

for health insurance premiums which she paid via deductions from her

annuity by OPM during the retirement period which corresponds to the

back pay period (erroneous retirement period), with interest.

5. In re-computing the back pay award, the agency shall refund the

petitioner all life insurance premiums which she paid via deductions from

her annuity by OPM during the erroneous retirement period. However,

the premiums for the same type of insurance were chargeable to the

petitioner as an active employee and may be deducted from her back

pay award. To the extent the life insurance premiums the petitioner

paid during her erroneous retirement period were greater than what she

would have paid for the same type of coverage as an active employee,

the agency shall pay interest on this amount.

6. The agency shall ask the petitioner to clarify which of the figures

she listed on her "Statement of Income for November 7, 1991 to Date

[September 12, 1996]" constituted earnings from employers (as opposed

to disability retirement income), and to update this statement through

the end of the back pay period. The petitioner shall cooperate with

this request. The agency may then deduct this amount from any back pay

obligation owed the petitioner.

7. After calculating the above liabilities and any deduction recited

above, the agency shall pay any additional sums to the petitioner which

it owes, if any.

The agency shall complete all the above actions within 90 days after it

receives this decision. It must submit a report of compliance to the

Compliance Officer, which shall include all the above calculations and

photocopies of any additional payments made to the petitioner, and copy

this report to the petitioner.

If the agency pays the petitioner additional sums, it shall notify her

attorney of the procedures for filing with the agency a petition for

attorneys fees and costs.

IMPLEMENTATION OF THE COMMISSION'S DECISION (K0595)

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 petitioner. If the agency does not comply with the Commission's

order, the petitioner may petition the Commission for enforcement

of the order. 29 C.F.R. �1614.503 (a). The petitioner 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. ��1614.408, 1614.409, and 1614.503 (g). Alternatively,

the petitioner 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. ��1614.408 and 1614.409. 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) (Supp. V 1993). If the

petitioner files a civil action, the administrative processing of the

complaint, including any petition for enforcement, will be terminated.

See 29 C.F.R. �1614.410.

RIGHT TO FILE A CIVIL ACTION (T0993)

This decision affirms the agency's final decision 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 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.

It is the position of the Commission that 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.

You should be aware, however, that courts in some jurisdictions have

interpreted the Civil Rights Act of 1991 in a manner suggesting that

a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the

date that you receive this decision. To ensure that your civil action

is considered timely, you are advised to file it WITHIN THIRTY (30)

CALENDAR DAYS from the date that you receive this decision or to consult

an attorney concerning the applicable time period in the jurisdiction

in which your action would be filed. 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 (Z1092)

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:

August 5, 1999

Date Frances M. Hart

Executive Officer

Executive Secretariat