Evan D. Ralph, Petitioner,v.Michael Chertoff, Secretary, Department of Homeland Security1, Agency.

Equal Employment Opportunity CommissionMay 8, 2007
0420070010 (E.E.O.C. May. 8, 2007)

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