Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Southwest Area), Agency.

Equal Employment Opportunity Commission

Aug 14, 2015

01-2012-3462-0500 (E.E.O.C. Aug. 14, 2015)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

,
Complainant,

v.

Megan J. Brennan,
Postmaster General,
United States Postal Service
(Southwest Area),
Agency.

Appeal No. 0120123462

Hearing No. 450-2011-00029X

Agency No. 4G-752-0252-10

DECISION
Complainant filed an appeal on September 4, 2012, with this Commission alleging that the
Agency failed to comply with its Final Action dated October 11, 2011, pursuant to 29 C.F.R.
§ 1614.504. We find that the Agency has shown compliance with an Equal Employment
Opportunity Commission (EEOC) Administrative Judge’s (AJ) order for remedies following a
finding of reprisal discrimination. For the following reasons, we find that the Agency has
complied with its Final Action.

BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Sales, Service and
Distribution Associate (Window Clerk) at the Agency’s Northwest Station facility in Plano,
Texas. Complainant filed a complaint in which he alleged that the Agency discriminated
against him on the bases of race (Indian), national origin (India), sex (male), religion (Hindu),
color (brown), and in 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. In a decision
issued August 21, 2011, an AJ found that the Agency discriminated against Complainant on the
basis of reprisal when he was subjected to disparate treatment and harassment with respect to a
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series of events that occurred after May 2010. Those events included Complainant’s
separation from federal service.1

As for relief, the AJ ordered the Agency to do the following:

1. Pay back pay, including all additional benefits, from Complainant's last day of
in pay status, August 10, 2010, to the present. In addition to this amount, Complainant
is also entitled all benefits to which he would have been otherwise entitled pursuant to
the Backpay Act, 5 U.S.C. 5596, during this time period. The Agency is to complete
its calculations no later than sixty (60) calendar days after the date this decision or any
appellate decision becomes final, whichever is later. Complainant may petition for
enforcement or clarification of the amount in dispute as set forth in the Commission's
regulations.

2. The Agency should also remove all discipline issued after May 2010, including
Complainant's termination.

3. Pay Complainant an award of $30,000.00 in nonpecuniary damages.

4. Pay Complainant a total of $30,615.00 in attorney's fees and $134.00 in costs.

5. The Agency shall post a notice within thirty days of the date this Decision
becomes final, and shall remain posted for sixty consecutive days, in conspicuous
places, including all places where notices to employees are customarily posted. The
Agency shall take reasonable steps to ensure that said notices are not altered, defaced,
or covered by any other material.

On October 11, 2011, the Agency issued a Final Action which fully adopted the AJ’s findings
and order for remedial relief. By letter dated April 4, 2012, addressed to the Agency’s EEO
Manager in Dallas, Texas, Complainant notified the Agency that it failed to comply with its
Final Action.2

Specifically, Complainant stated that he returned to work on March 29, 2012,
but that the Agency failed to place him in the Plano Northwest Station bid position he held at
the time he was removed because of discrimination. Complainant stated that he was reinstated
to a different location (Coit Station, Plano, Texas), as an unassigned regular Clerk.
Additionally, Complainant claims the Agency did not complete all back pay calculations within
60 days of when the AJ’s Decision became final. Further, Complainant states that the Agency
failed to properly post the "Notice to Employees" ordered by the AJ.

1 Complainant states that he received a Notice of Removal dated July 8, 2010, and a Notice of
Personnel Action with an effective date of his removal of August 9, 2010.
2 The record does not indicate that the Agency’s EEO Manager (Dallas) or EEO Director
(Tampa) responded in writing to Complainant’s noncompliance assertions.
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Complainant adds that he has been subjected to an ongoing hostile work environment.3

Complainant stated that when he reported for duty at Coit Station, he was presented with two
pages of an Individual Training Report and directed to sign the training documents or face
discipline. In his letter to the EEO Manager, Complainant stated that he will not sign a
document indicating he received training he did not receive.
By letter dated April 28, 2012, addressed to the Agency’s EEO Director in Tampa, Florida,
Complainant alleged the same disputes with the Agency’s compliance, and adds additional
examples of alleged harassment following his reinstatement to federal service. Complainant
states that the EEO Director never responded to this letter.

By letter dated May 1, 2012, Complainant notified the Agency’s Back Pay Coordinator in
Dallas, Texas, that Complainant believed the Agency did not properly calculate his overtime
and holiday hours. Complainant states that the Agency improperly averaged the overtime and
holiday hours worked by clerks. Among the clerks whose overtime and holiday work were
averaged are identified clerks that Complainant claims did not work much overtime.
Additionally, Complainant claims that the Agency artificially suppressed and did not include
the actual number of available overtime hours by assigning clerk work to rural carriers and
management personnel.

Complainant also disputed the Agency’s deduction of union dues from his back pay award.
Complainant argued that he was separated from the Agency during the back pay period and did
not receive any services or representation from the union during his separation. In his letter to
the Back Pay Coordinator, Complainant confirms that he did receive the Agency’s checks for
damages and attorney’s fees as set forth in the AJ’s Decision.

By letter to Complainant dated May 4, 2012, the Back Pay Coordinator responded to
Complainant’s concerns over the calculations of the overtime hours and holiday pay,
concluding that Complainant is entitled to 229.62 hours overtime and 54 hours of holiday work
hours. The Coordinator declined to decide the issue of the union dues deduction, but informed
Complainant that the issue will be forwarded to other Agency officials.

Complainant contends on appeal that the Agency failed to complete all back pay and overtime
calculations within 60 days as the AJ ordered. Complainant also claims that the Agency failed
to place Complainant in the job he previously held at Northwest Station, Plano, Texas.
Complainant also claims that the Agency failed to compensate him for lost opportunities of
overtime hours and holiday work hours and failed to post the "Notice to Employees" as
ordered by the AJ.

3 We decline to consider for the first time on appeal, Complainant’s claims of harassment that
occurred after the issuance of the Agency’s Final Action in October 2011. Complainant is
reminded that he has the right to present new claims of harassment for EEO Counseling within
45 days of the time he reasonably suspects he has been subjected to discrimination.
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On appeal, the Agency states that it supplied evidence of its compliance with the AJ’s order for
remedies by sending documentation to the Commission.4

The Agency states that it has fully
complied with the AJ’s order for remedies and also states that Complainant’s appeal for
noncompliance should be dismissed as untimely.

EEOC Regulation 29 C.F.R. § 1614.504 provides that final action which has not been the
subject of an appeal or civil action shall be binding on the Agency, and that if Complainant
believes that the Agency has failed to comply with the terms thereof, Complainant shall notify
the EEO Director, in writing, of the alleged noncompliance within 30 days of when
Complainant knew or should have known of the alleged noncompliance. If, after 30 days from
the date of the Agency’s receipt of the Complainant’s written allegations of noncompliance,
Complainant is not satisfied with the Agency’s attempt to resolve the matter, Complainant may
appeal to the Commission for a determination as to whether the Agency has complied with the
terms of its decision. 29 C.F.R. § 1614.504(b).
ANALYSIS AND FINDINGS

In the instant case, we find Complainant’s appeal is timely filed. We find no evidence that
Complainant received a final decision regarding the Agency’s determination of compliance
with its own Final Action in response to Complainant’s letters of April 4, 2012 (to the Dallas
EEO Manager), or April 28, 2012 (to the Agency’s EEO Director). We find Complainant
properly filed his appeal after more than 30 days expired without receipt of any determination
from the Agency regarding his multiple allegations of noncompliance. Furthermore, we find
that Complainant timely raised his claims of noncompliance with the EEO Director.

Reinstatement

We find no dispute among the parties that as part of the relief to make Complainant whole,
following the AJ’s finding of discrimination, Complainant is entitled to reinstatement to the
position he held at the time of the discrimination, or a substantially equivalent position,
retroactive to the date Complainant's employment was terminated. Vonville v. U.S. Postal
Serv

., EEOC Appeal No. 0120080116 (Aug. 2, 2010). On appeal, Complainant argues that
the position to which he was reinstated is not substantially equivalent to the position he held at
the time he was subjected to discrimination. The record indicates that after Complainant was
terminated, his position was abolished. The Agency states on appeal that Complainant was
reinstated to a position that Complainant would likely have occupied, absent discrimination.
In the absence of any express language in the AJ’s order for remedies that may have aided the
parties in determining the Agency’s obligation to restore Complainant to an appropriate

4 In those cases where, as here, neither party files an appeal from the Agency’s Final Action,
the Commission neither requires nor maintains any record of the Agency’s compliance prior to
the time a complainant notifies the Commission of noncompliance by filing an appeal pursuant
to 29 C.F.R. § 1614.504(b), such as Complainant did in this case on September 4, 2012.
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position, we find the Agency has complied with the AJ’s implied order for reinstatement by
directing him to report to a position he likely would have occupied, absent discrimination. We
find that Complainant did not identify any vacant, funded position to which he could have been
reinstated that may have been more appropriate under the circumstances or that more closely
matched the position Complainant held at the time of his discriminatory separation in August
2010.

Back pay

Section 717(b) of Title VII, 42 U.S.C. 2000e-16(b) is the Commission’s jurisdictional base for
determining the Agency’s liability for back pay. This statutory provision authorizes the
Commission to enforce the provisions of Section 717 through an assortment of remedial relief
actions. Such relief, particularly an award of back pay, is designed to make the victim of
discrimination ‘whole’ by placing him/her as near to the position he/she would have occupied,
but for the discriminatory personnel action and to prevent the recurrences of similar actions in
the future. Albemarle Paper Co. v. Moody . , 422 U.S. 405, 418-419 (1975)

The Commission has held that the overtime component of a back pay award should be
calculated based upon the average amount of overtime worked by similarly situated employees.
See, e.g., Complainant v. U.S. Postal Serv., EEOC Appeal No. 0120111944 (Sept. 13, 2013);
Williams v. Dep't of Transportation

, EEOC Petition No. 04A60005 (Jan. 23, 2006).
We find that Complainant accepts the Agency’s calculation of his back pay award regarding
regular hours and confines his dispute to the calculation of overtime, holiday, and penalty
overtime hours. The Coordinator stated that he ultimately used an average of the hours
worked by 10 clerks on the overtime desired list. Complainant provides evidence of his
overtime earnings in the years prior to the discrimination and requests that the award be based
on his historical overtime/holiday earnings with the exception of a year in which Complainant
experienced personal issues that prevented him from earning comparable overtime.

By letter dated April 19, 2012, the Coordinator states that using an average of the overtime
hours for 10 clerks, Complainant is entitled to an award of 229.73 hours of overtime. In his
letter of May 1, 2012 to the Coordinator, Complainant requested 144 hours of holiday pay (for
which he agreed to accept a 100 hour lump sum payment). Complainant also requests 831.87
in regular overtime hours. By letter dated May 4, 2012, the Coordinator informed
Complainant that he determined that Complainant should receive 229.62 hours of overtime pay
and 54 hours of holiday pay.

We consider Complainant’s contention that some clerks, even if their names appear on the
overtime desired list, do not work overtime as often as other clerks. We also consider
Complainant’s historical overtime averages from which his request derives and find it provides
a less reasonable basis upon which to fashion an appropriate award given the greater factors
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impacting available overtime opportunities from year to year.5

We find that Complainant did
not present evidence that the Coordinator’s method of calculating an appropriate award was
unreasonable. Accordingly, we concur with the Coordinator that 229.62 hours of overtime
and 54 hours of holiday work hours represents an appropriate award under the circumstances.
We also find that the payment was issued in such a time as to constitute substantial compliance.
Union Dues

The Agency may properly deduct union dues if: 1) Complainant was a member of the union
before his removal; 2) it routinely deducts union dues from employees who were union
members; and, 3) union dues were routinely deducted from Complainant’s pay before he was
removed. See Vu v. U.S. Postal Service, EEOC Appeal No. 04950020 (February 16, 1994).
Complainant situation fits the criteria set forth in Vu

and we find that union dues were properly
deducted from the back pay award.
Posting Notice

Complainant states that the Agency failed to place the AJ’s notice of discrimination in all of the
places described in the AJ’s Decision. The record shows that two Agency officials submitted
affidavits describing the posting of the notice contained in the AJ’s Decision, and its
subsequent removal,. We find the Agency has complied with this aspect of the AJ’s order for
remedies.6

CONCLUSION
Based on a thorough review of the record, we AFFIRM the Agency’s finding that it has
substantially complied with the Agency’s October 11, 2011 Final Action.

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION

(M0610)
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:

5 We find Complainant’s total annual hours of overtime worked from 2005 – 2009 varied
significantly, but still exceeded the Agency’s overtime award.
6 We note that the notice of discrimination posted by the Agency appears to have been copied
directly from the AJ’s Decision, bearing at the time of its posting, the identity of Complainant.
We remind the Agency that EEO matters are confidential and that the Agency shall remove all
personal identification information from such notices prior to posting.
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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), at 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 77960, Washington, DC 20013. 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

(S0610)
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. 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 (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. Such requests do not alter the
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time limits for filing a civil action (please read the paragraph titled Complainants 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

August 14, 2015
Date