01A42102_r
09-21-2004
Kenneth L. Cox, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Kenneth L. Cox v. United States Postal Service
01A42102
September 21, 2004
.
Kenneth L. Cox,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A42102
Agency No. 1-G-761-0028-00
Hearing No. 310-A0-5540X
DECISION
Complainant timely initiated the captioned appeal alleging the agency's
failure to comply with the relief ordered by an EEOC Administrative Judge
(AJ) in a December 6, 2001 decision finding that the agency engaged in
unlawful employment discrimination in violation of Section 501 of the
Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. �
791 et seq. The appeal is accepted pursuant to 29 C.F.R. � 1614.405.
The record reveals that complainant, a Distribution Clerk at the agency's
Amarillo, Texas General Mail Facility, filed a formal EEO complaint,
and prevailed on his claim that the agency failed to provide him with a
reasonable accommodation for his leg disability. Specifically, the AJ
found that complainant demonstrated that the agency improperly required
him to submit certain Office of Workers' Compensation Programs (OWCP)
forms in order to remain in his position, and improperly placed him in
Leave Without Pay (LWOP) status from December 6, 1999, to January 2, 2001.
The AJ determined that complainant was entitled to make whole relief,
and ordered the agency to:
Pay complainant specified pecuniary damages of $127.91 (regarding
a letter of demand received from the agency regarding his health
insurance);
Pay complainant back pay in an amount equal to the difference between
what he was paid under the Federal Employee's Compensation Act (OWCP
payments) and the amount he would have received had he not been removed
from his position and continued on the normal postal payroll during
the relevant period;
Restore all sick and annual leave for which complainant can show a
nexus between the leave taken and the agency's discrimination;
Pay complainant $9,114.35 in attorney's fees; and
Post a notice (Notice), attached to the AJ's decision, at the Amarillo,
Texas General Mail Facility, regarding the finding of discrimination
in this case.
In response to complainant's January 16, 2003 correspondence disputing
the agency's compliance as to items #2, #3, and #5, the agency issued a
notice to complainant, dated February 6, 2003, explaining its compliance
actions. Regarding item #2, the agency indicated that it performed
the required calculation, and determined that complainant would owe the
agency $4,157.13, such that he was not entitled to a back pay award,
submitting payroll documentation to verify these calculations.
Regarding item #3, the agency noted that complainant requested credit
for the annual (208 hours) and sick (104 hours) he would have earned
during the pertinent time period. The agency found that the AJ's order
specified that he was only entitled to restoration for leave taken if
a nexus could be shown between the leave taken and the discrimination.
The agency found that complainant failed to demonstrate this nexus,
and declined to restore any leave.
Regarding item #5, the agency declared that it posted the Notice,
providing a copy of the Notice signed by an agency official, and dated
as posted from July 18, 2002 to October 18, 2002.
On appeal, regarding item #2, complainant argues that the agency's wage
documentation reflects that he was entitled to $49,425.41 as �adjusted
Gross income� for the pertinent period of time, and that he received
$34, 366.67 from OWCP, averring that this off-set left the agency owing
him $15,058.74, plus interest. Regarding item #3, complainant argues
that he lost the accrual of annual and sick leave while the agency
unlawfully placed him in LWOP status, thereby establishing the nexus
necessary to credit him with this amount of leave. Regarding item #5,
complainant argues that he did not observe the Notice posted at the
indicated facility, and that no one he asked had seen it posted either.
Item #2
The purpose of a back pay award is to restore complainant to the position
he would have occupied, but for the discrimination. See Albemarle Paper
Company v. Moody, 442 U.S. 405, 418-19 (1975); Davis v. United States
Postal Service, EEOC Petition No. 04900010 (November 29, 1990). It is
well-settled Commission precedent that workers' compensation awards do
not preclude recoveries for discrimination, such as back pay, where such
awards do not result in a double recovery. See Sands v. Department of
Defense, EEOC Petition No. 04990001 (February 25, 2001). The Commission
notes that 5 U.S.C. � 550.805(e), provides that in computing the �net
amount of back pay payable,� the agency must make certain offsets and
deductions from the gross back pay award, in a specified order, which
must first include outside earnings (such as OWCP payments), followed
by the usual payroll deductions for retirement contributions, taxes, etc.
Regarding item #2, we find that the agency's payroll documentation
reflects that complainant's gross adjusted back pay for the pertinent
period was $49,425.41. To ascertain the �net amount of back pay payable,�
the agency had to first deduct complainant's OWCP payments ($34,366.67),
and only thereafter deduct other amounts. See 5 U.S.C. � 550.805(e)(1).
Instead, the agency simply made all of the deductions/offsets, in toto,
[$34,366.67 (OWCP payments) + $19,215.87 (total of all other deductions,
apparently based on an amount not adjusted by first deducting the OWCP
payments) =$53,582.54]. Therefore, the agency determined that there
was no �net amount of back pay payable,� with the difference between
$49,425.41 and $53,582.54 showing that complainant was �overpaid� by
$4,157.13.
In reviewing the agency calculations, it does not appear that it fully
complied with 5 U.S.C. Part 550, particularly in the order of deductions
and offsets prescribed by 5 U.S.C. � 550.805(e). Accordingly, we remand
this matter to the agency to recalculate the �net amount of back pay
payable� to complainant, if any, and pay this amount.
Item #3
Regarding item #3, the agency declined to �restore� any leave taken by
complainant because he failed to demonstrate the required nexus between
the use of the leave and the agency's discrimination. The agency also
declined to credit complainant for the amounts of annual and sick leave
he would have accrued during the pertinent period, arguing that he was
in LWOP status during this time, and ineligible to accrue leave.
As an initial matter, we find that although the AJ's order only included
a remedy for �restored� leave, i.e., the restoration to complainant's
leave balances of any leave used because of the agency's discrimination.
However, in this case, it does not appear that complainant used any annual
or sick leave, with the agency instead placing him in LWOP status as an
act of discrimination. Therefore, we find that an award of �restored�
leave does not provide complainant with the make whole relief intended
by the AJ, and mandated by the Rehabilitation Act. Instead, in order to
make complainant �whole�, i.e., to place him in the position he would
have been in but for the agency's discrimination, we find that he is
entitled to all benefits to which he would have received, including the
annual and sick leave that he would have earned had he been permitted
to work in full-time pay status in his Distribution Clerk position.
Further, notwithstanding the agency's argument to the contrary, we
find that complainant's LWOP status during the pertinent time is not an
impediment to crediting his leave balances. See McClendon v. U.S. Postal
Service. EEOC Petition No. 04960013 (May 22, 1997). Moreover, we note
that the agency does not dispute complainant's contention that he would
have earned 208 hours of annual leave and 104 hours of sick leave during
the pertinent time period. Therefore, we remand this matter to the
agency to credit complainant's leave balances accordingly.
Item #5
Regarding item #5, while we find that the agency submits a copy of the
Notice, which reflects the dates of posting, it submits no evidence, such
as a signed affidavit by an appropriate agency official, to demonstrate
that the Notice was actually posted at complainant's facility during
this time. We find that such evidence is necessary in this case given
complainant's statement that he did not observe the Notice posted at his
work facility at any time. Moreover, we also find that the Notice bears
a signature, presumably of an agency official, but the position of this
official is not identified. We advise the agency that the Notice should
be signed by the Manager of the Amarillo, Texas General Mail Facility,
and that this facility should be specifically identified in the Notice.
Therefore, we remand this matter to the agency with an order to post the
Notice attached to this decision, and to provide an affidavit attesting
to the time and place of posting.
In conclusion, for the reasons set forth above, we REMAND this case back
to the agency to undertake the actions specified in the ORDER below.
ORDER
The agency is ORDERED to take the following remedial action:
Within 30 (thirty) calendar days of the date that this decision becomes
final, the agency is instructed to complete its re-calculation of
the �net amount of back pay payable,� to complainant in this case,
as defined and prescribed in 5 U.S.C. Part 550, and provide a detailed
explanation demonstrating that its method of calculation is consistent
with 5 U.S.C. Part 550. If this calculation results in an amount owed
to complainant, the agency must also issue this payment, with interest,
within the aforementioned 30-day time limit;
If there is a dispute regarding the exact amount of �net amount of
back pay payable,� the agency shall issue a check to the complainant
for the undisputed amount within the aforementioned 30-day time limit.
The complainant 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."
Within 30 (thirty) calendar days of the date that this decision becomes
final, unless an error can be demonstrated in complainant's calculations,
the agency is instructed to credit complainant's annual leave balance
with 208 hours, and his sick leave balance with 104 hours; and
Within 30 (thirty) calendar days of the date that this decision becomes
final, the agency is instructed to post the attached Notice at its
Amarillo, Texas General Mail Facility in accordance with the �Posting
Order� provision below. The agency also must submit an affidavit by
an appropriate official attesting to the time and place of posting.
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 back pay and other benefits due complainant,
including evidence that the corrective action has been implemented.
POSTING ORDER (G0900)
The agency is ordered to post at its Amarillo, Texas General Mail
Facility copies of the attached notice. Copies of the notice, after
being signed by the agency's duly authorized representative, shall
be posted by the agency within thirty (30) calendar days of the date
this decision becomes final, and shall remain posted for sixty (60)
consecutive days, in conspicuous places, including all places where
notices to employees are customarily posted. The agency shall take
reasonable steps to ensure that said notices are not altered, defaced,
or covered by any other material. The original signed notice is to be
submitted to the Compliance Officer at the address cited in the paragraph
entitled "Implementation of the Commission's Decision," within ten (10)
calendar days of the expiration of the posting period.
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 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.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
The Commission may, in its discretion, reconsider the decision in this
case if the complainant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. The appellate decision involved a clearly erroneous interpretation
of material fact or law; or
2. The appellate decision will have a substantial impact on the policies,
practices, or operations of the agency.
Requests to reconsider, with supporting statement or brief, must be filed
with the Office of Federal Operations (OFO) within thirty (30) calendar
days of receipt of this decision or within twenty (20) calendar days of
receipt of another party's timely request for reconsideration. See 29
C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for
29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999). All requests
and arguments must be submitted to the Director, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. In the absence of a legible postmark, the
request to reconsider shall be deemed timely filed if it is received by
mail within five days of the expiration of the applicable filing period.
See 29 C.F.R. � 1614.604. The request or opposition must also include
proof of service on the other party.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely, unless extenuating circumstances
prevented the timely filing of the request. Any supporting documentation
must be submitted with your request for reconsideration. The Commission
will consider requests for reconsideration filed after the deadline only
in very limited circumstances. See 29 C.F.R. � 1614.604(c).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (R0900)
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 (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
September 21, 2004
__________________
Date