0520150187
05-22-2015
Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Western Area), Agency.
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Western Area),
Agency.
Request No. 0520150187
Appeal No. 0120122965
Hearing No. 443-2010-00013X
Agency No. 4-E-500-0029-09
DECISION ON REQUEST FOR RECONSIDERATION
On December 18, 2014, Complainant timely requested reconsideration of the decision in Complainant v. U.S. Postal Service, EEOC Appeal No. 0120122965 (November 13, 2014). EEOC Regulations provide that the Equal Employment Opportunity Commission (EEOC or Commission) may, in its discretion, grant a request to reconsider any previous Commission decision where the requesting party demonstrates 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. See 29 C.F.R. � 1614.405(c).
In his prior appeal, Complainant argued that the Agency did not comply with its final order, which adopted and implemented an Equal Employment Opportunity Commission Administrative Judge's (AJ) decision finding, in relevant part, that she was discriminated against based on her age and sex when on March 24, 2009, the Agency notified her that she would be permanently reassigned.
As remedy, the AJ ordered, in relevant part, that Complainant be paid back pay, if any, and other benefits due pursuant to 29 C.F.R. � 1614.501, from May 12, 2009, until her retirement on January 1, 2010. The AJ found that absent discrimination, Complainant would have returned to suitable employment during this period, and subsequently would have received all career ladder promotions to which an employee who performed in a fully successful manner was entitled, until her retirement date of January 1, 2010. The AJ found that Complainant was entitled to the restoration of annual and sick leave she used between May 12, 2009, and her retirement date of January 1, 2010, as a result of being off work per doctor's orders.
In our previous decision we found, in relevant part, that the Agency restored the proper amount of sick leave - 1096 hours, and annual leave - 192 hours, which was based on clock rings. Regarding the sick leave, we found that while the Office of Personnel Management (OPM) already made a determination on Complainant's retirement benefits, the Agency must notify OPM of the 1096 hours of restored sick leave so it could recalculate her service credit and retirement benefits.
In her prior appeal, Complainant requested attorney fees. We found that if Complainant was requesting attorney fees incurred in the processing of the appeal before us, this was premature because she had not yet shown she was a prevailing party in that she had not yet demonstrated the Agency failed to comply with the AJ's decision and final order. We also found that the normal procedure for requesting such fees was to submit a verified statement of fees to the Agency, not to the Commission.
In our previous decision we ordered, in relevant part, that the Agency ensure that Complainant's personnel records reflect the restoration of 1096 hours of sick leave and 192 hours of annual leave, and notify OPM of the restoration of 1096 hours of sick leave for the purpose of recalculating Complainant's service credit and retirement benefits.1
In her request for reconsideration, Complainant argues that during the back pay period she incurred 120 hours of leave without pay (LWOP), and should be reimbursed for this amount in the form of back pay. She argues that in addition to the 1096 hours of restored sick leave, the Agency should notify OPM of the 192 hours of restored annual leave and the 120 hours of LWOP so her retirement can be recalculated, and the Agency should pay her a lump sum for her reduced retirement from January 1, 2010, to the present. Finally, Complainant argues that while she agrees that the payment of attorney fees at this stage is premature, she is a prevailing party because OPM must recalculate her retirement benefits.
In the previous decision, the EEOC accurately recounted that Complainant contended that she used 40 hours of LWOP during the back pay period of May 12, 2009 to January 1, 2010. She based this on her paystubs. Complainant's paystubs for the last three pay periods up to January 1, 2010, indicated she was charged 120 hours of LWOP over the three pay periods, but reflected a total cumulative amount of 40 hours for that period. In our previous decision we noted in a chart that Complainant's pay stubs indicated she used 120 hours of LWOP during the back pay period. In its opposition to Complainant's prior appeal, the Agency countered that clock rings (which were pulled in September 2011) showed Complainant was not charged any LWOP during the back pay period.
In our previous decision we found that when there are uncertainties over the determination of back pay, we should resolve them in favor of Complainant. We found that the Agency's clock ring figures were more favorable to Complainant than the figures derived from her pay stubs: 1096 hours of sick leave (as opposed to 1080 hours based on her pay stubs), and 192 hours of annual leave (as opposed to 112 hours based on her pay stubs). We find that the clock ring figures were still more favorable to Complainant overall, even taking into account the 40 hours of LWOP on appeal she contended she took during the back pay period. Complainant has not shown that in our previous decision we made a clearly erroneous interpretation of material fact or law in crediting clock rings over pay stubs and not awarding her back pay for 40 hours of LWOP.
Complainant argues that the Agency should notify OPM of the 192 hours of restored annual leave so her retirement can be recalculated. We disagree. Annual leave is not used to adjust service credit for retirement purposes or to calculate retirement benefits.
We need not address whether Complainant is a prevailing party at this point. If further processing shows that the Agency did not fully comply with its final order which adopted and implemented the AJ's decision, and this results in some benefit to Complainant, she should apply for attorney fees with the Agency at that time.
After reviewing the previous decision and the entire record, the Commission finds that the request fails to meet the criteria of 29 C.F.R. � 1614.405(c), and it is the decision of the Commission to deny the request. The decision in EEOC Appeal No. 0120122965 remains the Commission's decision. There is no further right of administrative appeal on the decision of the Commission on this request. The Agency shall comply with the Order below.
ORDER
The Agency is ordered to take the following actions, within one hundred and twenty (120) calendar days of this decision becoming final:
1. The Agency shall complete a supplemental investigation to obtain information on whether Complainant is entitled to an annual performance award of $2,500.00, as part of a back pay determination. Relevant information may include, but is not limited to, financial or personnel records indicating previous instances and amounts in which Complainant has received performance awards; the performance awards received by similarly situated managerial employees during the relevant time period. The Agency shall provide Complainant a copy of the supplemental investigative file.
2. The Agency shall then issue a final decision, with appropriate appeal rights, determining whether it is in compliance with its decision finding discrimination and awarding back pay and other benefits (specifically making a determination on Complainant's entitlement to the annual performance award). If the Agency determines that Complainant is entitled to an annual performance award, the Agency shall calculate and pay Complainant back pay (with interest) and all other benefits due pursuant to 29 C.F.R. �1614.501. Specifically, the Agency shall include in its payment the annual performance award that Complainant would have earned in 2009 performing at the fully successful level. The back pay calculation shall include appropriate offsets to account for the Agency's prior payment of back pay to Complainant. Complainant shall cooperate with the Agency's efforts to compute the amount of back pay and benefits due, and shall provide all relevant information requested by the Agency. If there is a dispute regarding the exact amount of back pay, the Agency shall issue a check to Complainant for the undisputed amount, and Complainant may contest the Agency's back pay award in accordance with the appellate procedures.
3. After the Agency has calculated and paid Complainant's back pay award. Complainant shall have sixty (60) calendar days following the end of the tax year in which the final payment is received to calculate the adverse tax consequences of any lump sum back pay awards, if any, and notify the Agency. Following receipt of Complainant's calculations, the Agency shall have sixty (60) days to issue Complainant a check compensating her for any adverse tax consequences established, with a written explanation for any amount claimed but not paid.
4. The Agency shall ensure that Complainant's personnel records reflect the restoration of 1096 hours of sick leave and 192 hours of annual leave. Then the Agency shall officially notify the U.S. Office of Personnel Management of the restoration of 1096 hours of sick leave, for the purpose of recalculating Complainant's service credit and retirement benefits.
The Agency is directed to submit a copy of the Agency's supplemental investigative file and a report of compliance to the Compliance Officer, as provided in the statement entitled "Implementation of the Commission's Decision." The report of compliance shall include supporting documentation of the Agency's calculation of back pay and other benefits due Complainant, if applicable, along with documentation indicating it has officially notified the U.S. Office of Personnel Management about the adjustment of Complainant's sick leave balance, for the purpose of recalculating Complainant's service credit and retirement benefits. The Agency shall send a copy of the supplemental investigative file, report of compliance, and all of its enclosures to Complainant.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0610)
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 77960, Washington, DC 20013. 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.
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 (Z0610)
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 from the Court that the Court appoint an attorney to represent you and that the Court also 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
with the Court 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 22, 2015
__________________
Date
1 The EEOC ordered other relief, such as determining whether Complainant was entitled to a performance award of $2,500.
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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