0120081355
10-28-2010
Dan A. Olson, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Western Area), Agency.
Dan A. Olson,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Western Area),
Agency.
Appeal No. 0120081355
Hearing No. 403-2006-00047X
Agency No. 1E-501-0007-03
DECISION
Complainant filed an appeal with the Commission on January 22, 2008, seeking a determination whether the Agency has fully complied with its notice of final decision. For the following reasons, the Commission VACATES the Agency's December 28, 2007, decision.
BACKGROUND
The record reveals that Complainant began working at the Agency on June 18, 1985, as a Mail Handler at the Des Moines Processing and Distribution Center (P&DC). Report of Investigation (ROI), Exhibit 1. Complainant was injured at work and filed a workers' compensation claim which was accepted by OWCP. In May 1999, Complainant had surgery to repair a torn rotator cuff and returned to work in a light duty assignment in July 1999. ROI, Affidavit A at 1.
On June 28, 2002, the Agency offered Complainant a permanent limited duty rehabilitation job on Tour 3. ROI, Affidavit A, at 13. On July 2, 2002, the job offer was modified. Id. at 14. On July 5, 2002, Complainant accepted the job offer. Id. at 15.
Complainant wanted to change to Tour 2 for personal convenience. Complainant noticed less senior employees working on Tour 2 and he asked to transfer from Tour 3 to Tour 2. ROI, Affidavit A, at 16. On July 25, 2002, Complainant requested a change to Tour 2 and his request was denied. Id. at 18. Complainant was subsequently allowed a change to Tour 2.
On December 16, 2002, the Plant Manager notified Complainant that effective January 4, 2003, he would be returned to Tour 3, his original permanent job offer due to staffing needs. ROI, Affidavit A, at 19. On January 4, 2003, Complainant returned to Tour 3. Thereafter, on February 3, 2007, the Agency returned Complainant to Tour 2.
Complainant filed an EEO complaint dated April 3, 2007, alleging that the Agency discriminated against him on the basis of disability (lifting and repetitive motion limitations) when:
1. Complainant was removed from his Tour 2 assignment in December 2002; and
2. Beginning on December 16, 2002, Complainant's requests for Tour 2 assignments were denied.1
Complainant's case was accepted for investigation and consolidated for joint processing with Agency No. 1E-501-0008-03 which was filed by Complainant 2. At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of his right to request a hearing before an EEOC Administrative Judge (AJ). Complainant requested a hearing and the AJ held a hearing on May 15, 2007. The AJ issued a decision on September 30, 2007, finding Complainant was subjected to discrimination when: (1) he was removed from his Tour 2 assignment in December 2002; and (2) beginning on December 16, 2002, Complainant's requests for Tour 2 assignments were denied. The Agency subsequently issued a notice of final action dated November 19, 2007, fully implementing the AJ's finding that Complainant proved that the Agency subjected him to discrimination as alleged.2
The Agency fully implemented the AJ's Order which required the Agency to:
1. Determine and pay Complainant back pay, if any, (with interest, if applicable) and other benefits due Complainant pursuant to 29 C.F.R. � 1614.502, no later than sixty calendar days after the date this decision becomes final. The Agency's determination shall be based on the fact that, absent discrimination, Complainant would have remained on Tour 2 from December 2002, through the date he finally received his Tour 2 assignment on January 17, 2007.3
2. Pay Complainant $5,000 in non-pecuniary damages.
The record reveals that on December 17, 2007, the Agency sent Complainant check number 0102687915 in the amount of $5,000 as payment for non-pecuniary damages. The record reveals Complainant received this check on January 4, 2008.
On December 28, 2007, the Agency issued a letter to Complainant informing him that it determined that because he suffered no loss of earnings as a result of the Agency's action in this case, no back pay is due to him.
The Agency noted that up until February 3, 2007, when Complainant assumed his assignment on Tour 2, his regular assignment was on Tour 3. The Agency stated that employees assigned to Tour 3 receive a 10% night differential for the time worked during the hours of 6:00 p.m. to 6:00 a.m. The Agency noted that employees assigned to Tour 2 are not entitled to receive night differential because Tour 2 work hours are not within the 6:00 p.m. to 6:00 a.m. time period. The Agency noted that during the time Complainant worked on Tour 3, his earnings were higher than the earnings he would have made on Tour 2 had the Agency granted his request for assignment to Tour 2. The Agency determined because Complainant's earnings were higher on Tour 3 than they would have been on Tour 2, he suffered no loss of earnings.
The Agency also found Complainant was not entitled to out of schedule pay. The Agency noted Complainant was regularly assigned to Tour 3 and was granted a temporary schedule change to Tour 2 for personal convenience, but was later moved back to his regular assignment on Tour 3 in January 2003. The Agency noted thereafter Complainant requested to be returned to Tour 2, and these requests were denied until February 3, 2007. The Agency stated it did not require Complainant to work outside of his regularly assigned schedule and found out of schedule pay was not warranted since it would put him in a better position than he was otherwise entitled to and is not part of "make whole" relief in this case.
Complainant filed the present appeal on January 22, 2008. On appeal, in response to the Agency's position that his wages were higher on Tour 3 than they would have been on Tour 2, Complainant requests a mathematical calculation of this assertion. Additionally, Complainant states that the Agency has not provided him with calculations of out-of-schedule pay, forced holiday pay, forced day off pay, or differential pay.
In response to Complainant's appeal, the Agency argues it complied with the AJ's order. Specifically, with regard to back pay the Agency notes it determined that because Complainant's earnings were higher on Tour 3 than they would have been on Tour 2, he suffered no loss of earnings and no award of back pay was due.
Additionally, the Agency claims Complainant is not entitled to out-of-schedule pay since the Agency did not require Complainant to work outside his regularly assigned schedule. The Agency claims that the time period of March, 2002 to January 4, 2003, when Complainant worked on Tour 2, he was not entitled to out-of-schedule pay because this was a temporary schedule change for personal convenience. The Agency states that during the time period of January 4, 2003 until February 3, 2007, when Complainant returned to Tour 3, he was not entitled to out-of-schedule pay because he was working his regularly assigned schedule. The Agency argues that if Complainant were to receive out-of-schedule pay as part of the award in this case, he would be in a better position than he would have been absent the discrimination.
ANALYSIS AND FINDINGS
As an initial matter, we note that the Agency does not dispute the AJ's finding of discrimination and we note that Complainant has not appealed the remedy awarded by the AJ.
Pursuant to the notice of final action, the Agency was required to determine and pay Complainant back pay, if any, (with interest, if applicable) and other benefits due Complainant pursuant to 29 C.F.R. � 1614.502. The notice of final action stated that the Agency's determination shall be based on the fact that, absent discrimination, Complainant would have remained on Tour 2 from December 2002, through the date he finally received his Tour 2 assignment on February 3, 2007. Although the Agency claimed that no back pay was due, based on the fact that during this time Complainant worked on Tour 3, and received higher pay than he would have made on Tour 2, the Agency provides no documentation to support this assertion. We find implicit in the AJ's Order, the requirement that the Agency provide calculations to support its back pay determination. Moreover, we note the Agency has not addressed Complainant's assertion that he was entitled to forced holiday pay, forced day off pay, or differential pay. Thus, we will remand this issue to the Agency for a supplemental investigation.
Additionally, Complainant claims that he is entitled to out-of-schedule pay as a result of the Agency's discrimination in removing him from his Tour 2 assignment in December 2002, and then denying his requests for Tour 2 assignments. Out-of-schedule pay is a form of premium pay due to employees who are required to work outside of their regularly assigned schedule. Sansosti v. U.S. Postal Service, EEOC Petition No. 04990004 (June 17, 1999). In the present case, Complainant was working an assignment on Tour 2, for at least five months prior to receiving the December 16, 2002 letter informing him that he would be returning to Tour 3 effective January 4, 2003. AJ's decision at 8; Hearing Transcript at 182. The AJ's decision found the Agency liable for discrimination when it removed Complainant from his Tour 2 assignment on December 16, 2002. The Agency acknowledges that the Tour 2 work hours are not within the 6:00 p.m. to 6:00 a.m. time period of the Tour 3 work hours. Complainant is alleging that he was made to work Tour 3 night hours as opposed to Tour 2 day hours beginning January 4, 2003, as a result of the unlawful discrimination. We find Complainant is entitled to out-of schedule pay since the Agency's actions resulted in a change to Complainant's reporting time. See Espinosa v. U.S. Postal Service, EEOC Request No. 05960098 (April 3, 1998) (finding discrimination and awarding out-of-schedule pay where agency re-posted complainant's job and thereby changed his principle assignment area, pay location, reporting time, and scheduled days off); Arnold v. U.S. Postal Service, EEOC Appeal No. 07A20087 (June 25, 2003) (finding discrimination and awarding out-of-schedule pay where agency posted the complainant's position for bid resulting in a change in his starting time and duty location). Thus, we will remand this issue of out-of-schedule pay to the Agency for a supplemental investigation. If the sum of out-of-schedule pay, forced holiday pay, forced day off pay, and differential pay (other than night differential pay) that is due Complainant is less than any 10% night differential pay Complainant may have been receiving as a result of being on Tour 3, then the Agency will not owe Complainant any more payments, provided documentation is presented to support this determination.
CONCLUSION
Accordingly, the Agency's final decision is VACATED and the matter is REMANDED to the Agency for further processing in accordance with this decision and the Order herein.
ORDER
To the extent it has not already done so, the Agency shall within 60 days of the date this decision becomes final:
1. Determine and pay Complainant back pay, if any, (with interest, if applicable) and other benefits due Complainant pursuant to 29 C.F.R. � 1614.502, no later than sixty calendar days after the date this decision becomes final. The Agency's determination shall be based on the fact that, absent discrimination, Complainant would have remained on Tour 2 from December 2002, through the date he finally received his Tour 2 assignment on February 3, 2007.
2. Determine the appropriate amount of out-of-schedule pay due Complainant.
The Agency is further directed to submit a report of compliance, as provided in the statement entitled "Implementation of the Commission's Decision." The report shall include supporting documentation of the Agency's calculation of back pay, out-of-schedule pay, and other benefits due Complainant, including evidence that the corrective action has been implemented.
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.
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:
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 (R0610)
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 (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
10/28/10
__________________
Date
1 Complainant originally included sex as a basis for his complaint; however, he subsequently withdrew his claim of sex discrimination.
2 The AJ also found Complainant 2 in Agency No. 1E-501-0008-03 was subjected to discrimination. Complainant 2 filed an appeal following receipt of the Agency's final order which was docketed under EEOC Appeal No. 0120081060. The Commission will address the appeal by Complainant 2 under EEOC Appeal No. 0120081060.
3 The record shows that the effective date Complainant received the Tour 2 assignment was February 3, 2007. Hearing Transcript at pp. 160 - 161; Hearing Ex. 11. Both parties reference the February 3, 2007 date on appeal. Therefore, we shall alter the order of relief to reflect that the date Complainant received the Tour 2 assignment was February 3, 2007.
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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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