0420140021
10-30-2015
Irwin W.,1 Petitioner, v. Carolyn W. Colvin, Acting Commissioner, Social Security Administration, Agency.
Irwin W.,1
Petitioner,
v.
Carolyn W. Colvin,
Acting Commissioner,
Social Security Administration,
Agency.
Petition No. 0420140021
Appeal No. 0720110030
Agency No. CHI-08-0405-SSA
DECISION ON A PETITION FOR ENFORCEMENT
On August 14, 2014, the Equal Employment Opportunity Commission (EEOC or Commission) docketed a Petition for Enforcement to examine the enforcement of an Order set forth in Appeal No. 0720110030 (November 4, 2013). The Commission accepts the petition pursuant to 29 C.F.R. � 1614.503.
BACKGROUND
Petitioner filed a formal EEO complaint alleging that the Agency discriminated against him on the basis of disability when it denied his reasonable-accommodation request for a transfer, subjected him to harassment and a hostile work environment, and terminated his employment effective July 22, 2008. At the conclusion of the investigation, Petitioner requested a hearing before an EEOC Administrative Judge (AJ). The AJ held a hearing and subsequently issued a decision finding that the Agency had discriminated against Petitioner on the basis of disability in violation of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.
To remedy the discrimination, the AJ ordered the Agency, among other things, to offer Petitioner the position of Claims Representative or an equivalent position, to engage in the interactive process with Petitioner regarding reasonable accommodation to enable him to perform the essential functions of that position, and to provide back pay from the date of the termination of Petitioner's employment (July 22, 2008) to the date of his acceptance or rejection of the new position. The AJ noted that Petitioner had fifteen days within which to accept or reject the job offer. In addition, the AJ ordered the Agency to provide interim relief in accordance with 29 C.F.R. � 1614.505.
On February 28, 2011, the Agency issued a final order rejecting the AJ's finding that Petitioner proved that the Agency subjected him to discrimination on the basis of disability as alleged. The Agency simultaneously appealed the matter to this Commission. Pending the outcome of the appeal, the Agency's final order offered Petitioner interim relief in the form of a temporary position as a Claims Representative. The Agency noted that "[t]his offer is for temporary reinstatement only, pending the outcome of the appeal."
By letter dated April 4, 2011, an Agency attorney (A1) notified Petitioner that the Agency was prepared to begin Petitioner's interim appointment to the Claims Representative position on April 11, 2011. Noting that Petitioner had stated that he might not be able to begin the appointment until June 2011 because of personal reasons, A1 stated that the appointment could begin on June 6 or 20, 2011. A1 also stated that, if Petitioner chose to begin work after April 11, 2011, then the Agency might seek to offset the salary and benefits that Petitioner would have earned from that date. A1 asked Petitioner to let the Agency know when he would like to start the appointment.
In a June 18, 2011, e-mail to A1, an Agency District Manager stated that Petitioner called him "yesterday." According to the District Manager, Petitioner stated that "he would not be reporting for work in June, and probably not at all," and that "he had some unfinished business 'out of town.'"
In a decision dated November 4, 2013, the Commission reversed the Agency's final order and found that the AJ correctly determined that the Agency had discriminated against Petitioner. EEOC Appeal No. 0720110030 (Nov. 4, 2013). The Commission ordered the Agency to take corrective actions, including the following:
To the extent it has not already done so, within sixty (60) days of the date this decision becomes final:
1. The Agency shall offer [Petitioner] reinstatement to his position at the Agency, or to a substantially equivalent position. [Petitioner] has fifteen (15) days to accept or decline the Agency's offer of reinstatement. Upon acceptance, the Agency shall engage in the interactive process with [Petitioner] to determine what accommodations may be necessary and effective, if [Petitioner] should require a reasonable accommodation. If [Petitioner] should decline the Agency's offer of reinstatement, the date of his declination shall be the end date for any back pay due [Petitioner].
2. The Agency shall determine the appropriate amount of back pay, with interest, and other benefits due [Petitioner] since July 22, 2008, 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."
On January 16, 2014, the Agency filed a Petition for Clarification of the Commission's Order in EEOC Appeal No. 0720110030. The Agency sought clarification of the provision ordering the Agency to offer Petitioner reinstatement to his position. Noting that it had offered Petitioner reinstatement on April 4, 2011, and that the Order required the Agency to take action "[t]o the extent it has not already done so," the Agency sought confirmation that it did not have to re-offer the position to Petitioner. The Agency noted that Petitioner orally informed the Agency on June 17, 2011, that he would not be reporting for work. The Agency submitted copies of the April 4, 2011, letter from A1 to Petitioner and the June 18, 2011, e-mail from the District Manager to A1.
In a February 20, 2014, e-mail to the Commission's Office of Federal Operations, Petitioner alleged that the Agency failed to comply with the Order regarding disciplinary actions and the disclosure of back-pay computations. The Commission treated the communication as a Petition for Enforcement of the Order.
On April 9, 2014, Petitioner, through his attorney, filed a Response to the Agency's Petition for Clarification. Petitioner stated that he "does not contest the Agency's Petition for Clarification regarding the reinstatement issue, but does contest the end date of April 19, 2011, used by the Agency as the back pay calculation end date." He argued that June 17, 2011, is the appropriate end date for the calculation of back pay.
In our Decision on Petitions for Clarification and Enforcement, EEOC Petition No. 0420140008 (July 11, 2014), we found that the Agency was not required to discipline management officials who had retired from the Agency, nor a Technical Expert. To remind the Agency of its obligation to consider disciplinary action against responsible management officials who are still employed by the Agency, we reiterated the provisions of Paragraph 5 of the Order in EEOC Appeal No. 0720110030. We further found that the Agency had complied with Paragraph 1 of the Order when it offered Petitioner an interim appointment to a Claims Representative position on April 4, 2011, and that the Agency need not re-offer the position to Petitioner. We concluded that April 19, 2011, was the correct end date for the calculation of back pay. We amended Paragraph 2 of the Order to include the back-pay end date.
ANALYSIS AND FINDINGS
The Commission's regulations provide that the Office of Federal Operations may, on its own motion or in response to a petition for enforcement or in connection with a timely request for reconsideration, issue a clarification of a prior decision. A clarification cannot change the result of a prior decision or enlarge or diminish the relief ordered, but may further explain the meaning and intent of the prior decision. 29 C.F.R. � 1614.503(c).
Offer of Reinstatement
Upon review, we find that the decision in EEOC Petition No. 0420140008 inadvertently diminished the relief ordered in EEOC Appeal No. 0720110030. In that regard, we find that the decision in EEOC Petition No. 0420140008 erroneously stated that the Agency need not re-offer reinstatement to Complainant. Accordingly, we now clarify the Order in EEOC Appeal No. 0720110030.
When discrimination is found, an agency must provide a complainant with a remedy that constitutes full, make-whole relief to restore the complainant as nearly as possible to the position she or he would have occupied absent the discrimination. See, e.g., Franks v. Bowman Transp. Co., 424 U.S. 747, 764 (1976); Albemarle Paper Co. v. Moody, 422 U.S. 405, 418-19 (1975). Make-whole relief includes an unconditional offer of placement in the position the complainant would have occupied but for the discrimination. 29 C.F.R. � 1614.501(a)(3). Further, Commission regulations provide:
When the agency appeals and the case involves removal, separation, or suspension continuing beyond the date of the appeal, and when the administrative judge's decision orders retroactive restoration, the agency shall comply with the decision to the extent of the temporary or conditional restoration of the employee to duty status in the position specified in the decision, pending the outcome of the agency appeal. The employee may decline the offer of interim relief.
Id. � 1614.505(a)(1).
In this case, the Agency offered Complainant temporary reinstatement to a Claims Representative position, pending the outcome of the Agency's appeal. That offer, made pursuant to 29 C.F.R. � 1614.505(a)(1), was an offer of interim relief; it was not an unconditional offer of placement in the position that Complainant would have occupied absent the discrimination. Therefore, the offer was not in compliance with Paragraph 1 of the Order in EEOC Appeal No. 0720110030. To clarify that the Agency must offer Complainant reinstatement to a Claims Representative position, or to a substantially equivalent position, we will reiterate Paragraph 1 in the Order below.
Back Pay
Because we erred when we stated that the Agency need not re-offer reinstatement to Complainant, we also erred when we concluded that April 19, 2011, was the correct end date for the calculation of back pay. The back-pay period runs from the date of the discrimination until the date that Complainant accepts or declines the Agency's unconditional offer of reinstatement. Complainant has fifteen days to accept or decline the offer. Failure to accept the offer within fifteen days shall be considered a declination, unless Complainant can show that circumstances beyond his control prevented a response within the time limit.
We remind the parties that a back-pay claimant generally has a duty to mitigate damages. See Takahashi v. U.S. Postal Serv., EEOC Petition No. 0420100011 (Apr. 11, 2012). Specifically, � 706(g) of Title VII, 42 U.S.C. � 2000e-5(g), provides that "interim earnings or amounts earnable with reasonable diligence by the person or persons discriminated against shall operate to reduce the back pay otherwise allowable." This provision also applies to the Rehabilitation Act. See � 505 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. � 794a. The burden is on the agency to establish that the employee failed in his or her duty to mitigate damages. The Commission has generally held that an agency must satisfy a two-prong test to carry its burden of proof; this test requires the agency to show (1) that complainant failed to use reasonable care and diligence in seeking a suitable position, and (2) that there were suitable positions available which complainant could have discovered and for which he or she was qualified. Where a complainant does not make an effort to mitigate damages and does not explain the lack of effort, the agency does not have to meet the second prong. See Simmons v. U.S. Postal Serv., EEOC Petition No. 04930005 (Dec. 10, 1993). This decision makes no findings regarding whether Petitioner has mitigated damages.
This decision clarifies Paragraphs 1 and 2 of the Order in EEOC Appeal No. 0720110030. The Agency must offer Complainant reinstatement to a Claims Representative position, and the back-period runs from the date of the discrimination until the date that Complainant accepts or declines the Agency's unconditional offer. Further, this decision reiterates the provisions of Paragraph 5 of the Order.
CONCLUSION
Based on the foregoing, the Commission MODIFIES the decision in EEOC Petition No. 0420140008. The Agency is directed to comply with the ORDER below.
ORDER
To the extent it has not already done so, within sixty (60) days of the date this decision becomes final:
1. The Agency shall offer Petitioner reinstatement to his position at the Agency, or to a substantially equivalent position. Petitioner has fifteen (15) days to accept or decline the Agency's offer of reinstatement. Upon acceptance, the Agency shall engage in the interactive process with Petitioner to determine what accommodations may be necessary and effective, if Petitioner should require a reasonable accommodation. If Petitioner should decline the Agency's offer of reinstatement, the date of his declination shall be the end date for any back pay due Petitioner.
2. The Agency shall determine the appropriate amount of back pay, with interest, and other benefits due Petitioner since July 22, 2008, pursuant to 29 C.F.R. � 1614.501, no later than sixty (60) calendar days after the date this decision becomes final. 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 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 consider taking appropriate disciplinary action against all responsible management officials still employed by the Agency. The Commission does not consider training to be disciplinary action. The Agency shall report its decision to the Compliance Officer. If the Agency decides to take disciplinary action, it shall identify the action taken. If the Agency decides not to take disciplinary action, it shall set forth the reason(s) for its decision not to impose discipline. If any of the responsible management officials have left the Agency's employ, the Agency shall furnish documentation of their departure date(s).
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 verifying that the corrective action has been implemented as noted in the Petition.
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.
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 (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 the
time limits for filing a civil action (please read the paragraph titled Complainant's Right to File a Civil Action for the specific time limits).
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
Oct. 30, 2015
__________________
Date
1 This case has been randomly assigned a pseudonym which will replace Complainant's name when the decision is published to non-parties and the Commission's website.
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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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