01A13860
03-19-2003
DeeAnn Otis-Foster, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
DeeAnn Otis-Foster v. United States Postal Service
01A13860
03-19-03
.
DeeAnn Otis-Foster,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A13860
Agency No. 4J-606-0173-99
Hearing No. 210-99-6625X
DECISION
INTRODUCTION
On February 28, 2001, complainant initiated an appeal from the agency's
final order concerning her equal employment opportunity (EEO) complaint of
unlawful employment discrimination in violation of Title VII of the Civil
Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq.
The appeal is accepted pursuant to 29 C.F.R. � 1614.405.
ISSUE
The issue presented is whether the record adequately establishes that
the agency awarded complainant the correct amount of back pay and
interest due.
BACKGROUND
After a hearing, an EEOC Administrative Judge (AJ) found that complainant
was discriminated against based on retaliation, when (1) on April 12,
1997, an agency official questioned her about her EEO activity; and
(2) on May 7, 1999, the agency terminated her casual appointment.<1>
In his decision, the AJ stated that but for the retaliation of the
agency, complainant would have been rehired as a casual employee at the
subject facility in May 1999. As a result, the AJ ordered the agency,
in relevant part, to pay complainant �equal to the average of the pay
received by the three casual employees rehired by the agency at the
subject facility starting on or about May 1999 for the average duration
of their employment, with interest, and all benefits she would have
received had she been rehired as a casual employee.�
Although the AJ specifically indicated that May 1999 was the date
complainant would have been rehired, and would therefore be the date
to begin the back pay calculation, the check statement accompanying
complainant's back pay award shows that this award was calculated starting
November 1999 through October 2000.
The agency also found that complainant's retroactive gross pay during
the back pay period was $4,347.23. Its payment to her was based on
gross pay less $1,549.78 in retroactive contributions during the back
pay period for social security, medicare, and federal tax. The agency
issued a check to complainant in the amount of $2,797.45.
Complainant's sole argument on appeal is with regard to the number
of hours she was retroactively paid. The back pay award was based
on a total of 1436 base hours, with 916 night differential hours.
Complainant asserts that agency officials never made her aware that
her signature was required on any of the forms the agency sent her in
the process of calculating the back pay award in order to contest the
amount of hours on which the check was based. Upon inquiry with the
agency's Accounting Office for an explanation of deductions from her
back pay check, complainant was informed that an agency official should
have reviewed the back pay award amount with her and that complainant's
signature was a requirement as to whether she agreed with the amount
awarded. Complainant asserts this never transpired.
The record contains a twenty-page packet containing various documents
with titles including, �Back Pay Hours Tabulation� and �Back Pay
Decision/Settlement Worksheet� (Back Pay Worksheet). The remaining pages
contain �Notification of Personnel Action� of three other employees,
and various other brief and indecipherable computer generated Form
50s concerning these employees. The Back Pay Worksheet states �not
available� where complainant's signature was required. None of the forms
in this packet provide any explanation as to how complainant's hours
were calculated, whether her back pay award included interest, and how
much the three employees of record were paid individually or collectively.
ANALYSIS AND FINDINGS
Where discrimination is found, the injured party is to be placed, as
near as may be, in a situation she would have occupied if the wrong had
not been committed. Albemarle Paper Company v. Moody, 422 U.S. 405,
418-19 (1975). When the amount of back pay is in dispute the burden is
on the agency to produce documentary evidence of the hours complainant
would have worked and the rate of pay she should have received but for
the prohibited discrimination. Hart v. United States Postal Service,
EEOC Petition No. 04990023 (March 31, 2000).
The Commission finds that the record is inadequate to establish that the
agency has properly calculated the back pay or interest due complainant.
The calculations the agency has submitted are not sufficiently specific,
and do not allow a complete resolution of complainant'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
any cost of living or merit increases, interest, and the monetary value
of annual leave accrued during the back pay period, among other things,
all of which she may be entitled to.
Moreover, the agency's calculations do not reflect the pay figure or hours
worked by the three casual employees rehired by the agency at the subject
facility starting on or about May 1999 which would be a necessary step
in complying with the AJ's order that complainant receive an average
of the pay received by the other employees collectively.
In addition, the record shows that the back pay award was offset
by complainant's unemployment compensation. The check statement
accompanying complainant's back pay award showed that $4,420 in
unemployment compensation was deducted from the gross back pay award.
The agency may not deduct unemployment compensation from complainant's
back pay award. See Suzanne Morra-Morrison v. United States Postal
Service, EEOC Appeal No. 04980023 (June 2, 1998)(citing Scott v. United
States Postal Service, EEOC Appeal No. 01921641 (June 11, 1993).
Therefore, we find that the agency, having accepted the finding of
discrimination by the AJ, shall credit complainant's back pay award
for this improper unemployment compensation offset, as well as comply
with the Commission's Order below.
CONCLUSION
For the reasons set forth, the Commission finds that the record is
inadequate to determine whether the agency has awarded complainant the
correct amount of back pay, interest, and all other benefits due in
accordance with the AJ's decision. Accordingly, the agency will comply
with the Order below.
ORDER
Within thirty (30) days after this decision becomes final, the agency is
ORDERED to issue complainant a statement which specifically sets forth
the break down of how it arrived at its back pay figures. Specifically,
the calculation shall include documentation showing what it paid to
the three casual employees rehired by the agency at the facility on or
about May 1999, in accordance with the AJ's order. The calculation
shall include the average pay received by the three casual employees.
Furthermore, the calculations shall explicitly identify complainant's
gross salary payments, any cost-of-living or merit increases, the monetary
value of any retroactive benefits earned, such as annual leave, and all
deductions made. The agency shall also provide calculations regarding
interest payment, either separately or along with the above calculations.
Any codes used in the calculations shall be explained and identified,
so that an independent party can readily decipher the calculations.
Furthermore, the agency shall credit the improperly deducted unemployment
compensation from complainant's back pay award. A copy of the agency's
statement to complainant and a copy of the check must be sent the
Compliance Officer as referenced below.
Complainant shall cooperate in 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 and/or benefits, the agency shall issue
a check to the complainant for the undisputed amount within sixty (60)
calendar days of the date the agency determines the amount it believes
to be due. Complainant may petition for enforcement or clarification
of the amount in dispute. The petition for clarification or enforcement
must be filed with the Compliance Officer, at the address referenced in
the statement entitled "Implementation of the Commission's Decision."
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)
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 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 (M0701)
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), 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 19848,
Washington, D.C. 20036. 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 (S0900)
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 (Z1199)
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
___03-19-03_______________
Date
1The AJ found no discrimination based on race, sex, or retaliation with
regard to complainant's remaining seven (7) claims.