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