01a51987
11-22-2005
Melvin Gabriel, Complainant, v. Hector V. Barreto, Administrator, Small Business Administration, Agency.
Melvin Gabriel v. Small Business Administration
01A51987
November 22, 2005
.
Melvin Gabriel,
Complainant,
v.
Hector V. Barreto,
Administrator,
Small Business Administration,
Agency.
Appeal No. 01A51987
Agency No. 06-99-030
Hearing No. 160-A0-8525X
DECISION
Complainant timely initiated an appeal from the agency's final order
concerning his equal employment opportunity (EEO) complaint of unlawful
employment discrimination in violation of Title VII of the Civil Rights
Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq.
The record reveals that at the time of the complaint, complainant
was a former temporary Construction Analyst, GS-11, at the agency's
Verification Department, Disaster Assistance- Area 1 Office. Complainant
filed a formal EEO complaint on June 3, 1999, alleging that the agency
discriminated against him on the basis of race (African-American) when:
The agency denied complainant an opportunity to work as a Temporary Loss
Verifier between September 1998, and January 7, 1999, in Puerto Rico or
the U.S. Virgin Islands.
At the conclusion of the investigation, complainant received a copy of the
investigative report and requested a hearing before an EEOC Administrative
Judge (AJ). Following a hearing, the AJ issued a decision on November
12, 2003, finding complainant was discriminated against when the agency
did not hire him between September 1998, and January 7, 1999, base on
his race. Among the relief granted, the AJ ordered the agency to award
complainant back pay dating from the date that the first Area 1 Office
temporary Loss Verifier was sent to Puerto Rico or the Virgin Islands
to January 7, 1999, the date complainant turned down the agency's offer
of employment in Puerto Rico. The AJ stated that back pay will include
interest.
On December 15, 2003, the agency issued a final order fully implementing
the AJ's decision.
Thereafter, on March 17, 2004, the agency submitted its calculation of
the gross payment of back pay for complainant from September 23, 1998,
through January 7, 1999, in the amount of $22,994.10 plus interest.
The agency's calculated gross amount included regular pay, the U.S. Virgin
Island's Cost of Living Allowance (COLA), and the estimated overtime
that complainant would have worked. On April 7, 2004, complainant filed
an objection to the agency's calculation, disagreeing with the agency's
method of calculating the amount of back pay.
On May 6, 2004, the AJ held a teleconference with the parties during
which they agreed to submit to the AJ the dispute over implementation
of the back pay award for a supplemental decision. The agency then
submitted a brief on the calculation of back pay. Complainant then
responded on May 18, 2004, reiterating his objection to the agency's
method of calculating the amount of back pay, and arguing that it
should include daily per diem, weekly telephone and laundry allowances,
and shift differential. The agency then filed a reply on June 8, 2004,
arguing that complainant's request for an elevated back pay amount should
be denied because his contentions were unsupported.
On September 28, 2004, the AJ issued a Supplemental Decision and Order
(Back Pay) addressing each parties arguments regarding the back pay
calculations. The AJ noted complainant contended that the agency
calculated the basic and overtime pay by calculating the average of
hours of several employees of different grade which he argues produces
a lower average amount of hours worked. The AJ stated that complainant
argued that only the hours of loss verifiers of grade GS-11 should be
used in the calculations. The AJ noted that the agency asserted that
the employees who were considered in the calculations, were grade GS-11
Temporary Loss Verifiers from Area 1 (as complainant would have been).
The AJ stated that the agency provided a notarized affidavit from the
Human Resources Officer, who performed the calculations for complainant's
back pay, stating that �the data used . . . was from the payroll records
for GS-11 temporary loss verifiers.� The AJ found that the parties
do not dispute that only the hours worked by loss verifiers of grade
GS-11 should be used in calculating the average basic and overtime pay.
The AJ stated that based on the evidence submitted by the agency showing
that the agency used hours of grade GS-11 loss verifiers, he found the
method of calculating the basic and overtime pay was not erroneous.
The AJ also addressed complainant's contention that back pay should
include daily per diem and weekly allowances for telephone and laundry.
The AJ found that complainant did not incur any expenses on behalf of the
agency from the date that the first Area 1 Office Temporary Loss Verifier
was sent to Puerto Rico or the Virgin Islands through January 7, 1999.
Thus, the AJ found complainant was not entitled to per diem or allowances.
Finally, the AJ addressed complainant contention that back pay
calculations include a shift differential. The AJ stated that under 5
C.F.R. � 550.121(a), �nightwork is regularly scheduled work performed by
an employee between the hours of 6 p.m. and 6 a.m., and an employee who
performs nightwork is entitled to pay for that work at his or her rate
of basic pay plus a night pay differential amounting to 10 percent of
his or her rate of basic pay.� The AJ noted that the agency stated that
in this case overtime was not regularly scheduled work and therefore
complainant is not eligible for the night pay differential. The AJ
noted that according to the affidavit of the Human Resources Officer,
the regularly scheduled hours were from 7:30 a.m. to 5:30 p.m. The AJ
found that regularly scheduled hours from 7:30 a.m. to 5:30 p.m. were
not eligible for night pay differential. The AJ ordered the agency to
pay complainant $22,994.10 plus interest in back pay.
The agency issued a final order dated November 18, 2004, fully
implementing the AJ's decision.
Thereafter, complainant filed the present appeal. On appeal, complainant
contends that the time sheets provided to him were not certified to
be exact copies of the actual time sheets completed by the Time and
Attendance clerk. Complainant requests to be provided with certified
copies of every GS-11 that worked in Puerto Rico for the Hurricane
Georges disaster and the payroll records for the same GS-11s that were
received by the USDA Regional Finance Center in New Orleans, Louisiana
to compare the records with the time sheets. Additionally, complainant
argues that in addition to back pay and COLA he is also entitled to
receive the allowances that he would have received absent discrimination.
Specifically, complainant requests meals and incidental expenses as well
as telephone and laundry allowances.
In response to complainant's appeal, the agency reiterates its position
that the agency's method of calculation of back pay is correct and
that complainant is not entitled to per diem, specifically meals
and incidental expenses, along with telephone and laundry allowances.
The agency states that its back pay calculations were based on documented
evidence and are not erroneous. The agency noted that the HR Officer
provided in her sworn affidavit that the data used to compute the back
pay was from payroll records for GS-11 temporary loss verifiers who were
sent to Puerto Rico from September 24, 1998, through January 7, 1999.
The agency found complainant's allegation that he has no way of knowing
if the time sheets are accurate is baseless and without merit.
The agency explains that it calculated complainant's back pay by first
identifying all temporary Loss Verifiers who were sent to Puerto Rico or
the Virgin Islands in September 1998. The agency states that after it
identified all temporary Area 1 Loss Verifiers it determined Person A was
the first Area 1 Office temporary loss verifier sent to the islands on
September 23, 1998 (to Puerto Rico). The agency states it identified
nine pay periods between September 23, 1998, and January 7, 1999.
The agency explains that it then reviewed all payroll records of all
the temporary Area 1 Loss Verifiers sent to the islands and charted the
regular hours, holidays, holiday hours worked, overtime hours, annual
leave and sick leave for each loss verifier. The agency notes that
Person A worked 24 regular hours in pay period 19 of 1998 and it was
determined that complainant would have worked 24 regular hours in pay
period nineteen had he been called back to work on September 23, 1998.
The agency states that for pay periods 20 through 26 complainant would
have worked 80 hours a pay period. Finally, the agency states for pay
period 1 of 1999, complainant would have worked only 32 hours up until
January 7, 1999.
The agency explains that it created another chart for overtime only which
listed the name of each loss verifier and the total number of overtime
hours worked in week 1 and week 2 for each pay period.<1> The agency
states that it then added the total number of overtime hours worked
by each loss verifier for each of the relevant pay periods and divided
that number by the number of loss verifiers that worked overtime that
pay period to reach the average number of overtime hours worked.
The agency states that in determining complainant's 1998 hourly rate,
it found complainant would have been hired at the GS/11-1 rate with a 20%
COLA for the U.S. Virgin Islands. The agency states that the hourly rate
for complainant in 1998 was $17.54 an hour plus 20% COLA which equaled
$21.05 an hour. The agency determined complainant's 1998 overtime rate
was $23.95 an hour.<2> The agency determined complainant's 1999 hourly
rate was $18.09 an hour plus 20% COLA which equaled $21.71 an hour.
The agency stated complainant's 1999 overtime rate was $24.69.
The agency also found that loss verifiers worked only two holidays during
the relevant nine pay periods. The agency stated that those holidays
(Columbus Day and Veterans Day) are reflected in pay period 21 and pay
period 23 by an additional 8 hours above 80 in the �hours�column under
regular time.
After determining the regular, holiday, and overtime hours complainant
would have worked during the relevant pay periods multiplied by the hourly
rates for 1998 and 1999, as discussed above, the agency determined
complainant's total back pay from September 23, 1998, to January 7,
1999, to be $22,994.10 plus interest.
Finally, the agency argues that complainant is not entitled to per
diem, meals and incidentals, or telephone and laundry allowances.
The agency states that complainant is not entitled to per diem or
allowances because he did not work in Puerto Rico between the above
mentioned dates. The agency notes that per diem and allowances were
provided to compensate employees for expenses incurred on a daily basis
while working on the agency's behalf in Puerto Rico. The agency states
that since complainant did not work for the agency between September 1998,
and January 1999, he did not incur expenses on behalf of the agency in
Puerto Rico. Furthermore, the agency notes that if complainant had been
recalled to work on St. Thomas, U.S. Virgin Islands, where he lived, he
certainly would have not been entitled to collect per diem or allowances
while working on that island.
Upon review of the record, we find that complainant failed to show that
the agency's calculation of back pay was erroneous. Despite complainant's
contention, we find the record contains sufficient detailed information
identifying the Area 1 Office loss verifiers hired to work in Puerto Rico
during the relevant pay periods from September 23, 1998, through January
7, 1999. We find the agency provided sufficient documentation of the
regular, holiday, and overtime hours worked by each of the identified loss
verifiers (minus the two workers whose payroll records were not available)
for the relevant time frame. Although not challenged by complainant on
appeal, we note the agency provided a detailed explanation of the hourly
regular and overtime rates used to calculate complainant's entitlement to
back pay. Further, we note that the agency's HR Officer provided a sworn
affidavit stating that in performing the calculations for complainant's
back pay, she used the data from the payroll records for GS-11 temporary
loss verifiers who were sent to Puerto Rico during the relevant time
frame. We note that on appeal complainant does not challenge the
agency's determination that he is not entitled to pay differential.
Moreover, we find the agency properly determined that complainant is
not entitled to per diem, meal and incidental expenses, or allowances
for telephone and laundry since he did not actually incur such expenses.
Thus, we find the agency properly determined that complainant was
entitled to total back pay from September 23, 1998, to January 7, 1999,
in the amount of $22,994.10 plus interest.
ORDER
Within 60 days of the date this decision becomes final the agency shall,
if it has not already done so, pay complainant back pay in the amount
of $22,994.10 plus interest. Evidence of compliance with this Order
shall be sent to the Compliance Officer as referenced herein.
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
November 22, 2005
__________________
Date
1The agency notes that two loss verifiers, Person Y and Person Z, are
listed on the chart; however, the agency was unable to obtain their
payroll records from the National Finance Center.
2The agency notes that COLA adjustments only pertain to regular duty
hours, not to overtime per 5 C.F.R. � 591.201(c)(1).