Geraldine G.v.U.S. Postal Serv.

Equal Employment Opportunity Commission

May 4, 2017

EEOC Appeal No. 0420170001 (E.E.O.C. May. 4, 2017)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Geraldine G.,1
Petitioner,

v.

Megan J. Brennan,
Postmaster General,
United States Postal Service
(Headquarters),
Agency.

Petition No. 0420170001

Appeal No. 0720140039

Agency No. 66-000-0014-12

DECISION ON PETITION FOR ENFORCEMENT

On August 11, 2016, the Equal Employment Opportunity Commission (EEOC or Commission)
docketed a petition for enforcement to examine the enforcement of an Order set forth in EEOC
Appeal No. 0720140039 (June 3, 2016). The Commission accepts this petition for enforcement
pursuant to 29 C.F.R. § 1614.503. For the reasons that follow, the petition is GRANTED.

BACKGROUND

At the time of events giving rise to this complaint, Petitioner worked as a Postal Inspector at the
Agency’s Processing & Distribution Center in Des Moines, Iowa. On August 11, 2012,
Petitioner filed a complaint in which she alleged that the Agency discriminated against her on the
basis of age (50) in violation of the Age Discrimination in Employment Act of 1967 (ADEA), as
amended, 29 U.S.C. § 621 et seq. when on April 10, 2012, she interviewed for the position of
Postal Inspector Team Leader, Level 14, and during the interview she was questioned regarding
her years of eligibility and retirement. Subsequently, on April 12, 2012, she learned she was not
awarded the position.
At the conclusion of the investigation, the Agency provided Petitioner with a copy of the report
of investigation and notice of her right to request a hearing before an Equal Employment

1 This case has been randomly assigned a pseudonym which will replace Petitioner’s name when
the decision is published to non-parties and the Commission’s website.
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Opportunity Commission Administrative Judge (AJ). Petitioner timely requested a hearing. The
AJ held a hearing on June 18, 2013, and thereafter issued a decision on August 6, 2014, finding
that the Agency discriminated against Petitioner based on her age. The AJ ordered the Agency
to promote Petitioner to the position of Postal Inspector Team Leader, Level 14, in the St. Paul,
Minnesota facility or some substantially equivalent position/location within 30 days.
Additionally, the AJ ordered the Agency to determine and pay Petitioner back pay and other
benefits.

The Agency subsequently issued a final order rejecting the AJ’s decision and the relief ordered.
Additionally, the Agency filed an appeal with the Commission. In Geraldine G. v. U.S. Postal
Serv., EEOC Appeal No. 0720140039 (June 3, 2016), the Commission reversed the final order,
finding that there was substantial record evidence supporting the AJ’s finding that the Agency
discriminated against Petitioner. The Commission ordered the Agency to offer Petitioner a
position as a Postal Inspector Team Leader, Level 14, in St. Paul, Minnesota, or a substantially
equivalent position at a mutually agreed upon Agency location; determine and pay the
appropriate amount of back pay; provide training to the management officials in the Denver
Division of the Postal Inspection Service; consider taking appropriate disciplinary action against
all responsible management officials still employed by the Agency; and to post a notice. The
matter was assigned to a Compliance Officer and docketed as Compliance No. 0620160643 on
June 3, 2016.

On August 11, 2016, Petitioner, through her attorney, submitted the petition for enforcement at
issue. Petitioner contends that the Agency failed to determine and pay her back pay with
benefits; offer her the Postal Inspector Team Leader, Level 14 position or a substantially
equivalent position; or to post the required notice electronically. Petitioner noted that the
Commission’s order erroneously included a statement awarding her attorney’s fees despite the
unavailability of attorney’s fees in a complaint alleging discrimination under the ADEA.
Nonetheless, Petitioner believes that she is entitled to attorney’s fees in light of the Agency’s
“frivolous positions in this compliance matter.”

On September 13, 2016, the Agency responded that it had complied with the relief ordered in the
Commission’s decision. The Agency first noted that it could not begin to calculate the amount
of back pay owed until it was notified by Petitioner if she intended to accept or decline its June
29, 2016 offer. Petitioner did not advise the Agency that she was declining the Agency’s offer
until July 26, 2016. The Agency asserts that on August 29, 2016, it sent Petitioner the required
form to complete and sign so that its accounting service could determine and process the
appropriate amount of back pay due. Petitioner returned the form, but signed “Under Protest”
because she disagreed with the Agency’s preliminary back pay calculation. The Agency claims
that it then sent the form to its accounting service for processing.

Additionally, the Agency explained that it could not offer Petitioner a Team Leader Level 14
position in St. Paul because no such position was available to be offered at that location as
positions were allocated and staffed in accordance with complement, budgetary, workload, and
other considerations. The Agency stated that because it could not offer Petitioner a Level 14
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Team Leader position in St. Paul, it offered Petitioner positions in New York, Philadelphia,
Cleveland, Newark, and Miami. Additionally, the Agency offered Petitioner positions at its
Headquarters in Washington, D.C.; however, Petitioner declined the Agency’s offers. The
Agency acknowledged that these positions were not within a reasonable commuting distance
from St. Paul; however, the Agency noted that Petitioner did not now and did not at the time of
her non-selection live in St. Paul, Minnesota. Instead, Petitioner resided and worked in the Des
Moines, Iowa area. Thus, the Agency contended that even if it were able to offer Petitioner a
Team Leader Level 14 position in St. Paul, she would have needed to move from Des Moines at
the Agency’s expense just like if she had accepted one of the six offered Team Leader Level 14
positions in the other cities.

Finally, the Agency argued that it has acted in good faith and Petitioner’s request for attorney’s
fees is baseless as attorney’s fees are not available under the ADEA. Accordingly, the Agency
requests that the Commission deny the Petition for Enforcement.

ANALYSIS AND FINDINGS

Promotion or Placement in a “Substantially Equivalent” Position

The Agency was required to offer Petitioner a position as a Postal Inspector Team Leader, Level
14, in St. Paul, Minnesota, or “a substantially equivalent position.” The Commission has
consistently held that a substantially equivalent position is one that is similar in duties,
responsibilities, and location (reasonable commuting distance) to the position for which the
complainant originally applied. See, e.g., Monroig v. U.S. Comm’n on Civil Rights, EEOC
Petition No. 04A40029 (Sept. 29, 2005); Spicer v. Dep't of the Interior, EEOC Petition No.
04980007 (Sept. 24, 1998); Patterson v. Dep't of Agriculture, EEOC Request No. 05940079
(Oct. 21, 1994). The burden is on the Agency to establish that the position offered to
complainant in fact is substantially equivalent to the position lost. See Rai v. Dep't of the
Interior, EEOC Appeal No. 01901186 (May 17, 1990).

The Agency contended that it could not offer Petitioner the Team Leader Level 14 position in St.
Paul because no such position was available. Instead, the Agency offered Petitioner six Team
Leader Level 14 positions and two Program Manager Level 14 positions located in various areas
throughout the country. The Commission finds the positions offered were not substantially
equivalent to the Team Leader position denied to Petitioner. Specifically, the positions offered
were not in geographic/commuting locations remotely close to the position that Petitioner was
discriminatorily denied. Therefore, the Commission finds that the Agency is not in compliance
with the previous Order. See Carroll v. Dep't of the Air Force, EEOC Petition No. 0420070018
(Feb. 29, 2008) (position offered in another geographic location not substantially equivalent to
position denied to petitioner).

The Commission further notes that 29 C.F.R. § 1614.501 expressly provides for an unconditional
offer of placement in the position the victim of discrimination would have occupied absent
discrimination or in a “substantially equivalent” position. The Agency maintained that it is
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unable to offer Petitioner the St. Paul position because it is no longer vacant and is currently
occupied by an incumbent employee who apparently was selected over Petitioner.

Although there may be some disagreement among the Federal circuits, case law from federal
courts and the Commission recognizes the bumping of an incumbent employee as a possible
remedy for discrimination. Padilla, Jr. v. Dep't of Housing and Urban Dev., EEOC Petition No.
04A20031 (Sept. 30, 2003); Sheth v. Dep't of Agric., EEOC Petition No. 04A10011(Mar. 8,
2001); Myers v. U.S. Postal Serv., EEOC Appeal No. 04950028 (May 2, 1996); Banks v. Dep't
of the Interior, EEOC Request No. 05920680 (Mar. 4, 1994) at n. 5; Mitchell v. U.S. Postal
Serv., EEOC Petition No. 04910005 (Aug. 1, 1991); Bruno v. City of Crown Point, Indiana, 950
F.2d 355, 360 (7th Cir. 1991); cert. denied, 505 U.S. 1207 (1992); Lander v. Lujan, 888 F.2d
153, 156-58 (D.C. Cir. 1989) (“[B]umping in this case accords with the broad guidelines that the
Supreme Court has provided on the proper scope of Title VII remedies.”)

In addition, the Commission has previously held that the bumping of an incumbent is a
permissible remedy when, in the absence of bumping, the petitioner's relief would be unjustly
inadequate. Padilla, Jr., EEOC Petition No. 04A20031 (citing Kerschner, Jr. v. Dep't of Labor,
EEOC Appeal No. 01933023 (Mar. 15, 1994)); Harness v. U.S. Postal Serv., EEOC Appeal No.
01920294 (June 16, 1992) (citing Lujan, 88 F. 2d, at 156-58). If there is no position available
that is substantially equivalent to the positions petitioner was discriminatorily denied, bumping
of an incumbent may be the only adequate remedy. Padilla, Jr., EEOC Petition No. 04A20031.

Here, there is apparently no substantially equivalent position in terms of commuting distance
with regard to the St. Paul position, a position which Petitioner was discriminatorily denied. The
Agency’s offering of positions in completely different geographical locations throughout the
country is plainly an unjustly inadequate remedy. As there is no substantially equivalent position
to the Team Leader, Level 14 position at the St. Paul, Minnesota location, the Commission finds
that bumping the incumbent employee is the only remedy that would make Petitioner whole
under the circumstances. See e.g., Franks v. Bowman Transpor. Co., Inc., 424 U.S. 747, 764
(1976); Albemarle Paper Co. v. Moody, 422 U.S. 405, 418-19 (1975).

Accordingly, Petitioner is entitled to be placed in the St. Paul Team Leader, Level 14 position,
even if it means bumping the individual who was selected over her. See Sheth, EEOC Petition
No. 04A10011 (petitioner entitled to be placed in the original position for which he was not
selected, even if it means removing one of the original selectees); Padilla, Jr. EEOC Petition No.
04A20031 (petitioner discriminatorily not selected to multiple geographic locations entitled to
the location of his choice and to bump an incumbent employee selected over him when no
substantially similar position was available).
Back Pay

Petitioner contends that the Agency has not complied with the Commission’s order to determine
and pay her back pay with benefits. The Agency argues that any delay in calculating the
appropriate amount of back pay was due to Petitioner’s failure to timely accept or decline its
offer of position placement. In addition, once the Agency submitted its calculation worksheet to
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Petitioner, she signed and returned it on September 8, 2016, stating it was “Under Protest.”
Nonetheless, the Agency claimed that it sent the calculations form to its accounting service for
processing. The Commission notes that the Agency has provided a copy of its back pay
calculations worksheet; however, it has not submitted any evidence demonstrating that any
amounts have been paid to Petitioner. Additionally, given the Commission’s determination that
Petitioner should be placed in Team Leader, Level 14 position in St. Paul, the Commission
orders the Agency to re-calculate and pay Petitioner the appropriate amount of back pay.2

Training and Discipline for Management Officials

The Commission ordered the Agency to provide training to the management officials of the
Denver Division of the Postal Inspection Service regarding their responsibilities under EEO laws
and regulations. Petitioner did not challenge the Agency’s compliance, and the Agency provided
evidence showing that the training was completed as ordered. Likewise, the Agency submitted
evidence establishing that the responsible management official retired from the Agency prior to
the Commission’s decision. Accordingly, the Commission finds that the Agency has complied
with the Commission’s order regarding discipline and training for the responsible management
officials.

Notice in Hard Copy and Electronic Format

The Agency was ordered to post at its St. Paul, Minnesota facility copies of the “Notice to
Employees” in both hard copy and electronic format. The Agency submitted evidence that the
notice was posted in the facility; however, it failed to show that the notice was also posted
electronically. As a result, the Commission finds that the Agency has not fully complied with
that portion of the order.

Attorney’s Fees

Finally, as to Petitioner’s request for attorney’s fees, the Commission notes that the previous
decision erroneously included a provision stating that if Petitioner had been represented by an
attorney, she was entitled to an award of reasonable attorney’s fees incurred in the processing of
the complaint. The previous decision found discrimination based solely in violation of the
ADEA. Thus, the Commission takes this opportunity to clarify that attorney’s fees are not
available for claims brought under the ADEA. See Tellez v. Dep’t of the Army, EEOC Request
No. 05A41133 (Mar. 18, 2005). Accordingly, the Commission finds that Petitioner is not
entitled to an award of attorney’s fees.

CONCLUSION

2 The Commission notes that it has consistently recognized that interest on an award of back pay
is not available as a remedy under the ADEA. Ryan v. Dep’t of Def., EEOC Petition No.
04960005 (Nov. 7, 1996).
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Accordingly, the Commission finds that the Agency has not fully complied with our previous
order set forth in Geraldine G. v. U.S. Postal Serv., EEOC Appeal No. 0720140039 (June 3,
2016). Therefore, the petition for enforcement is GRANTED. The Agency must now take
additional steps to achieve full compliance. The Commission REMANDS this matter to the
Agency to comply with our order below.

ORDER

Within sixty (60) calendar days of the date this decision is issued, the Agency is ordered to take
the following remedial action to the extent that it has not already done so:

1. Within sixty (60) days of receipt of this decision, the Agency shall offer Petitioner a
position as a Postal Inspector Team Leader, Level 14, in St. Paul, Minnesota, retroactive
to April 12, 2012. Petitioner must be offered the St. Paul Postal Inspector Team Leader,
Level 14 position, even if this involves bumping an incumbent. Petitioner shall be given
a minimum of fifteen (15) calendar days from receipt of the offer within which to accept
or decline the offer. Failure to accept the offer within the time period set by the Agency
will be considered a rejection of the offer, unless Petitioner can show that circumstances
beyond her control prevented a response within the time limit.

2. The Agency shall determine the appropriate amount of back pay and other benefits due
Petitioner, pursuant to 29 C.F.R. § 1614.501. 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. 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.”

3. The Agency shall provide proof that it posted the “Notice to Employees” at its St. Paul,
Minnesota facility in electronic format for the 60 consecutive days as specified in the
Posting Order contained in EEOC Appeal No. 0720140039.
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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 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 (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 (Z0815)

If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may
request permission from the court to proceed with the civil action without paying these fees or
costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may
request the court to appoint an attorney for you. You must submit the requests for waiver of
court costs or appointment of an attorney directly to the court, not the Commission. The
court has the sole discretion to grant or deny these types of requests. Such requests do not alter
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the time limits for filing a civil action (please read the paragraph titled Petitioner’s Right to File a
Civil Action for the specific time limits).

FOR THE COMMISSION:

______________________________ Carlton M. Hadden’s signature
Carlton M. Hadden, Director
Office of Federal Operations

May 4, 2017
Date