0420070010
05-08-2007
Evan D. Ralph, Petitioner, v. Michael Chertoff, Secretary, Department of Homeland Security1, Agency.
Evan D. Ralph,
Petitioner,
v.
Michael Chertoff,
Secretary,
Department of Homeland Security1,
Agency.
Petition No. 0420070010
Petition No. 04A40008
Petition No. 04A30034
Request No. 05A10509
Appeal No. 01974175
Agency No. 1923116
DECISION ON A PETITION FOR ENFORCEMENT
On October 20, 2006, the Equal Employment Opportunity Commission
(EEOC or Commission) docketed a petition for enforcement to examine
the enforcement of an order set forth in Evan D. Ralph v. Department
of Homeland Security (Customs/Border), Appeal No. 01974175 (March 6,
2001), request for reconsideration denied, Request No. 05A10509 (January
2, 2003). This petition for enforcement is accepted by the Commission
pursuant to 29 C.F.R. � 1614.503.
At the time this matter originally arose, petitioner was an Aircraft
Pilot with the U.S. Customs Service, at the time a sub-agency of the
Department of the Treasury. He was removed from this position in
early 1992 for his refusal to fly Blackhawk helicopters. The removal
action was appealed to the Merit Systems Protection Board (MSPB).
A MSPB Administrative Judge reversed the agency's action and petitioner
was reinstated to his position as an Aircraft Pilot. During this time,
petitioner also had a pending EEO complaint against the agency, which he
had filed in 1991, alleging discrimination on the basis of disability.
The record also shows that after his reinstatement by the MSPB, he was
issued another notice of proposed removal.
On September 8, 1993, the agency and petitioner entered into a
settlement agreement (SA). In exchange for petitioner's withdrawal of
his EEO complaint, the agency agreed it would take several actions,
including processing his application for disability retirement and
removing references to disciplinary actions taken against petitioner.
Petitioner subsequently alleged that the agency breached the SA. When the
agency failed to respond to petitioner's allegations, he filed an appeal
with the Commission. In EEOC Appeal No. 01974175 (March 6, 2001), the
Commission found that the agency breached the SA. The decision noted
that the SA provided that in the event the agency failed to abide by the
terms of the agreement, the agency would reinstate him to his position.
Accordingly, the Commission in EEOC Appeal No. 01974175 ordered the
agency, among other things, to reinstate him to his position, to calculate
back pay, and to process an award of attorney's fees and costs.
The agency requested reconsideration on the matter which was addressed in
Evan D. Ralph v. Department of the Treasury, EEOC Request No. 05A10509
(January 2, 2003). In that decision, the Commission found that the
agency's request failed to meet the criteria for reconsideration.
Accordingly, the agency was again ordered to take the remedial steps
ordered in EEOC Appeal No. 01974175.
The matter was assigned to a Compliance Officer and docketed as
Compliance No. 06A30568. On May 16, 2003, petitioner submitted the
petition for enforcement which was docketed as Petition No. 04A30034.
Petitioner claimed that the agency had not reinstated him to his prior
position, tendered him back pay, or processed his attorney's claim
for fees and costs. The Commission agreed and found that the agency
was not in compliance with our orders in EEOC Petition No. 04A30034
(September 10, 2003). Specifically, the Commission ordered the agency
to reinstate petitioner to his position as an Aircraft Pilot; to tender
him back pay and benefits for the period from the date on which his
sick leave was exhausted (January 11, 1994) until either the date on
which he was reinstated to his former position or the date on which it
is determined that he is not suited for employment as an Aircraft Pilot;
and to process petitioner's claim for attorney's fees and costs.
On December 29, 2003, petitioner filed a second petition for enforcement
with the Commission regarding the same remedial steps ordered in EEOC
Appeal No. 01974175. The Commission dismissed petitioner's second
petition for enforcement finding that the parties had made progress
in their attempts to resolve the situation. Rather than stymie the
progress made by the parties, the Commission chose to administratively
close the petition for enforcement and provide petitioner the opportunity
to re-file a petition for enforcement if settlement attempts failed.
Ralph v. Department of Homeland Security, EEOC Petition No. 04A40008
(May 25, 2005).
Petitioner submitted the instant petition for enforcement, which was
docketed on February 16, 2007. Petitioner contends that the agency has
still failed to provide him with full back pay, including overtime,
holiday time, weekend time, and other benefits such as contributions
into the thrift savings program (TSP), and properly credit him for the
time he was reinstated for retirement purposes.
The agency issued its response to the petition for enforcement on March
19, 2007. The agency asserted that it continues to make progress in
complying with the Commission's orders. In addition, the agency asserted
that it was "actively engaged in reviewing and discussing the best way
to resolve the issues raised" in the instant petition.
Back Pay Award Period
Petitioner has provided information concerning the back pay the agency
has provided to him. The record indicates that the agency provided back
pay from January 11, 1994 through June 17, 1994, and from February 19,
2004 through January 8, 2005. In addition, petitioner was paid a lump
sum payment for leave. Petitioner was reinstated to his Aircraft Pilot
position on January 10, 2005. Petitioner asserts that the agency failed
to provide him with back pay from June 17, 1994 (the date his application
for disability retirement was approved) through February 19, 2004 (the
date the Office of Personnel Management determined he was no longer
entitled to disability retirement benefits). In essence, it appears
to be the agency's position, that complainant is not entitled to back
pay for the period he was qualified for disability retirement benefits.
The purpose of a back pay award is to restore petitioner to the position
he would have occupied. Albemarle Paper Co. v. Moody, 442 U.S. 405,
418-19 (1975); Davis v. United States Postal Serv., EEOC Petition
No. 04900010 (November 29, 1990). We note that petitioner has no
objection to repaying the disability retirement he received during
this timeframe. Otherwise, the receipt of disability retirement could
constitute mitigation of damages and could be taken into consideration
by the agency in its back pay calculation. See Ghannam v. Agency For
International Development, EEOC Petition No. 04A40007 (June 22, 2004).
However, we find that the agency cannot deny petitioner back pay based
on the receipt of disability retirement. Therefore, we order the agency
to calculate back pay with interest due petitioner for June 18, 1994
through February 18, 2004.
Other Benefits
Petitioner's counsel also asserts that the agency has not provided
petitioner with all of the other benefits to which he was entitled such
as TSP and premium pay for overtime, holidays, and Sundays. The agency
does not dispute this. Back pay should include all forms of compensation
and must reflect fluctuations in working time, overtime rates, penalty
overtime, Sunday premium and night work, changing rates of pay, transfers,
promotions, and privileges of employment to which the petitioner would
have been entitled but for the discrimination. Allen v. Department for the
Air Force, Petition No. 04940006 (May 31, 1996) (citing Williams v. United
States Postal Serv., EEOC Appeal No. 01933156 (May 4, 1994), request for
reconsideration denied, EEOC Request No. 05940680 (February 16, 1995)).
The Commission construes "benefits" broadly to include, inter alia,
annual leave, sick leave, health insurance, overtime and premium pay,
night differentials, and retirement contributions. Vereb v. Department
of Justice, Petition No. 04980008 (February 26, 1999). Therefore, we
find no persuasive argument to deny petitioner any other benefits to
which he was entitled from January 11, 1994 through January 8, 2005.
Retirement Credit
In addition, petitioner argues that "make whole" relief requires that he
be credited for retirement purposes as if he had been working continuously
for the agency from January 11, 2004 through January 8, 2005. Therefore,
the Commission concludes that complainant's service computation date
for determining both regular retirement and law enforcement retirement
("Retirement 6C Date") should be April 12, 1987, the date he first began
working for Customs as an aircraft pilot and should reflect continuous
service based on a reinstatement date of January 11, 1994.
In requesting this adjustment to his Retirement 6C Date, petitioner is
not asking that he receive retirement benefits for periods in which no
retirement contributions were made on his behalf. Rather, the agency
should make retroactive retirement contributions on his behalf to the
Federal Employees Retirement System (FERS) and deduct his retroactive
contributions from his back pay award so that his FERS retirement fund
is the same as it would have been had he been continuously working since
April 12, 1987.
Salary Increases
Finally, petitioner argues that the agency has not provided him with
the salary increases placing him in the grade level he would have been
based on the reinstatement date of January 11, 1994. The agency did not
respond. We order the agency to calculate petitioner's salary based on
the reinstatement date of January 11, 1994.
The Commission is concerned with the length of time it has been taking
the agency to comply with the Commission's previous orders in this case.
We note that if the agency does not comply with the orders below,
petitioner may file a petition for enforcement. We remind the agency
that the Commission may consider the regulatory alternatives pursuant
to 29 C.F.R. � 1614.503 to enforce its orders to provide petitioner with
appropriate relief.
CONCLUSION
Based upon the foregoing, the Petition for Enforcement is GRANTED, and
the agency is ORDERED to take further action as set forth in the Order
of the Commission which follows.
ORDER
The agency is ordered to take the following remedial action:
1. The agency shall determine the appropriate amount of back pay, with
interest, for the period of June 18, 1994 through February 18, 2004,
pursuant to 29 C.F.R. � 1614.501, no later than sixty (60) calendar
days after the date this decision becomes final. The petitioner 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 petitioner
for the undisputed amount within sixty (60) calendar days of the date
the agency determines the amount it believes to be due. The petitioner
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."
2. The agency shall within sixty calendar days calculate all other
benefits to which petitioner is entitled for the period of January
11, 1994 through January 8, 2005, including, but not limited to, TSP
contributions and premium pay for overtime, holidays, and Sundays.
3. The agency shall, within sixty calendar days, credit petitioner for the
purposes of retirement with a service computation date for determining
both regular retirement and law enforcement retirement ("Retirement 6C
Date") of April 12, 1987, the date he first began working for Customs
as an aircraft pilot, and should reflect continuous service based on the
reinstatement date of January 11, 1994. In making this adjustment to his
service computation date, the agency should make retroactive retirement
contributions on his behalf to the Federal Employees Retirement System
(FERS) and deduct his retroactive contributions from his back pay award
so that his FERS retirement fund is the same as it would have been had
he been continuously working since April 12, 1987.
4. The agency shall within sixty calendar days calculate petitioner's
salary based on the reinstatement date of January 11, 1994, including
appropriate step and grade salary increases that he would have normally
accrued.
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 backpay and other benefits due petitioner,
including evidence that the corrective action has been implemented.
ATTORNEY'S FEES (H0900)
If complainant has been represented by an attorney (as defined by
29 C.F.R. � 1614.501(e)(1)(iii)), he/she is entitled to an award of
reasonable attorney's fees incurred in the processing of the complaint.
29 C.F.R. � 1614.501(e). The award of attorney's fees shall be paid
by the agency. The attorney shall submit a verified statement of fees
to the agency -- not to the Equal Employment Opportunity Commission,
Office of Federal Operations -- within thirty (30) calendar days of this
decision becoming final. The agency shall then process the claim for
attorney's fees in accordance with 29 C.F.R. � 1614.501.
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
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. �� 1614.407, 1614.408, and 29 C.F.R. � 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. �� 1614.407 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 petitioner files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 29 C.F.R. � 1614.409.
PETITIONER'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
May 8, 2007
__________________
Date
1 This matter was initially captioned Evan D. Ralph v. Department of
the Treasury. Since the Commission's decision on appeal, the Department
of Treasury's Customs Service has been absorbed into the Department of
Homeland Security.
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0420070010
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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0420070010