04A40009
06-24-2004
James P. Flynn, Petitioner, v. John E. Potter, Postmaster General, United States Postal Service, (Western Area), Agency.
James P. Flynn v. United States Postal Service
04A40009
June 24, 2004
.
James P. Flynn,
Petitioner,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Western Area),
Agency.
Petition No. 04A40009
Appeal No. 01A14197
Agency No. 1E-801-0090-97
Hearing No. 320-98-8056X
DECISION ON A PETITION FOR ENFORCEMENT
On January 16, 2004, the Equal Employment Opportunity Commission
(EEOC or Commission) docketed a petition for enforcement to examine
the enforcement of an order set forth in James P. Flynn v. United
States Postal Service, EEOC Appeal No. 01A14197 (September 5, 2002).
This petition for enforcement is accepted by the Commission pursuant
to 29 C.F.R. � 1614.503. Petitioner alleged that the agency failed
to fully comply with the Commission's order to restore all pay and/or
benefits lost as a result of the agency's discriminatory actions.
Petitioner filed a complaint in which he alleged that the agency
discriminated against him on the basis of disability and in reprisal for
prior EEO activity. Petitioner appealed the agency's final decision to
the Commission. In EEOC Appeal No. 01A14197, the Commission found that
the agency failed to fully comply with the terms of the final agency
decision (FAD), and remanded the matter to the agency to perform its
obligations pursuant to the FAD. The matter was assigned to a Compliance
Officer and docketed as Compliance No. 06A21652 on September 5, 2002.
On January 16, 2004, petitioner submitted the petition for enforcement
at issue. Petitioner makes the following contentions:
The agency failed to compensate him the full 2,912 hours of
out-of-schedule overtime that he is due.
The 50 percent adjustment rate as applied to determine the back pay
amount is incorrect.
In its response to the petition for enforcement, the agency contends
that it has complied with the terms of the Commission's decision, and
petitioner has no entitlement to further compensation.
In the case at hand, petitioner fails to establish that the agency is
not in compliance with the order issued in EEOC Appeal No. 01A14197.
We begin by addressing petitioner's argument that he is due 2,912 hours
of out-of-schedule overtime based on a compilation of the total number
of pay periods between the start of the entitlement period in Fiscal Year
1997, and the end of the period, in Fiscal Year 2000. Petitioner argues
that he should be paid for all of those hours, including those he did
not work (and for which he took leave), on the basis that had he been
on a non-discriminatory schedule he would have worked all of those hours.
In response, the agency contends that it has paid 2,541.20 hours
of out-of-schedule overtime to petitioner which is proper because
petitioner did not actually work all 2,912 hours of the entitlement
period. The agency notes that out-of-schedule pay, by definition, is a
premium paid at 50 percent of an employee's base hourly rate of pay for
each hour actually worked outside of the employee's regular schedule at
the employer's direction. As to this point, the Commission agrees with
the agency, and we find speculative petitioner's claim that had he been
on a non-discriminatory schedule he would have worked all of those hours.
The agency further notes that in computing what was owed to petitioner,
the agency had to consider the issue of �pyramiding.� Specifically,
the agency explains that the Collective Bargaining Agreement (CBA)
forbids the practice of pyramiding premium pay, which means that if two
or more premiums apply to the same hours, the employee is only entitled
to one premium, the highest one available. Thus, in processing the
hours adjustments, out-of-schedule payment was added, but the �Sunday
premium� was deducted, as it was the lesser of the two premiums.
We find petitioner's petition as to this issue insufficient to establish
non-compliance, and we find that the agency's payment of 2,541.20 hours
of out-of-schedule overtime was proper.
Next, petitioner contends that the 50 percent adjustment rate as applied
to determine the back pay amount is incorrect. Petitioner explains that
according to his calculations, he is only being paid $8.50 per hour,
which cannot be correct, since his regular rate of pay was more than
twice that; specifically, more than $19.00 per hour. In its response,
the agency contends that petitioner's calculations are simplistic
and incorrect. The agency offers a detailed explanation of how it
calculated the adjustment rate, noting that petitioner was compensated
at a rate of $9.73 per hour, which amounts to 50 percent of a regular
hourly rate of $19.46 per hour.<1> After a review of the record, we find
that petitioner has failed to show that the agency is not in compliance
with the order because of the 50 percent premium rate that it used.<2>
Therefore, the Commission denies petitioner's Petition for Enforcement.
There is no right of administrative appeal from this denial.
PETITIONER'S RIGHT TO FILE A CIVIL ACTION (P0900)
This decision of the Commission is final, and there is no further right
of administrative appeal from the Commission's decision. 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.
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
June 24, 2004
__________________
Date
1 The agency calculated the 50
percent rate as follows: take the annual salary shown ($40,472) and
divide by 2,080 (number of hours in a work year) to get the hourly rate
($19.46 per hour). As evidence that the $9.73 rate was applied, the
agency points to Code 73 in Agency Ex. 5, which indicates that $155.66
was paid for 16 hours worked (an hourly rate of approximately $9.73).
2 In the agency's response to the petition for enforcement, the agency
also addresses the issue of leave, concluding that petitioner has been
properly credited with the appropriate number of hours of leave. We note,
however, that petitioner's petition for enforcement was limited to the
issues already addressed herein, and he did not contend in his petition
for enforcement that he was not credited with the proper amount of leave.
Accordingly, we will not address this issue herein.