04A30029
08-04-2003
Peter Dang, Petitioner, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Peter Dang v. United States Postal Service
04A30029
August 4, 2003
.
Peter Dang,
Petitioner,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Petition No. 04A30029
Appeal No. 01996068
Agency No. 4G-770-0006-98
Hearing No. 330-98-8195X
DECISION ON A PETITION FOR ENFORCEMENT
On May 16, 2003, the Equal Employment Opportunity Commission (EEOC
or Commission) docketed a petition for enforcement to examine the
enforcement of an order set forth in Peter Dang v. United States Postal
Service, EEOC Appeal No. 01996068 (September 18, 2001). This petition
for enforcement is accepted by the Commission pursuant to 29 C.F.R. �
1614.503. Petitioner alleged that the agency failed to comply with the
Commission's order to calculate back pay because it unfairly deducted
his earnings from outside employment from the amounts he says he was owed.
Petitioner's complaint concerned the allegation that the agency
discriminated against him on the bases of race (Asian), national origin
(Vietnamese), and in reprisal for prior EEO activity when he was not
re-hired in August 1997. Complainant appealed the agency's final
decision which rejected the Administrative Judge's recommended finding
of discrimination based on reprisal. In EEOC Appeal No. 01996068,
the Commission reversed the agency's decision and found that the AJ's
finding of discrimination was correct. The Commission ordered the agency
to re-hire complainant retroactive to the date he would have been hired
absent discrimination, and awarded back pay with interest and other
benefits lost due to the agency's discriminatory actions.
Compensatory damages, attorney's fees and costs were remanded to the
AJ for further action. The matter was assigned to a Compliance Officer
and docketed as Compliance No. 06A11998 on December 9, 2002.
On April 16, 2003, petitioner submitted this petition for enforcement.
Petitioner contends that the agency miscalculated the amount of back pay
due to him by deducting amounts he earned from other employment during
the time before he was re-hired. For the following reasons, we conclude
the agency properly deducted amounts complainant earned from its back
pay calculation.
ANALYSIS AND FINDINGS
Under Title VII of the Civil Rights Act of 1964 (as amended 42
U.S.C. 2000e-5(g)), when a finding of discrimination is made, the
Commission may reinstate with or without back pay..."Interim earnings or
amounts earnable with reasonable diligence by the person discriminated
against shall operate to reduce the back pay otherwise allowable."
The standard for determining whether mitigating earnings should be
deducted from a back pay award is whether the supplemental or moonlight
job is one that the complainant cannot perform once he is reinstated
into the job he lost due to discrimination. See Dixon v. Department of
Education, EEOC Request No. 05900436 et al. May 25, 1990). If there is
reason to believe he can perform both jobs simultaneously and that he will
do so, then those earnings from the supplemental job are independent of
the position sought and should not be taken into account in calculating
back pay. Id.
In this case, the record reflects that complainant obtained three
different jobs after he was not hired at the agency's facility in Tomball,
Texas. Two jobs that he held at RaceTrac and Bray Controls, complainant
worked simultaneously from November 1997 to June 1998. He then resigned
his job at Race Trac but continued to work at Bray Controls. He began
working at Blue Chip Machine in August 2000 and shortly thereafter,
left his job at Bray Controls. He continued to work there until
he resigned in March 2002 just before he was re-hired at the Postal
Service effective March 23, 2002 pursuant to the Commission's order.
The fact that complainant resigned his employment at Blue Chip Machine
is conclusive that he could not nor did he intend to perform that job
while resuming his employment with the agency. Therefore, we conclude
that the agency acted properly by deducting earnings from this employment
from backpay amounts owed to complainant.
Accordingly, we find the agency has complied with our Order dated
September 18, 2001 and the petition for enforcement is hereby denied.
COMPLAINANT'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
August 4, 2003
__________________
Date