0420120007
09-11-2014
Petitioner, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Southeast Area), Agency.
Petitioner,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Southeast Area),
Agency.
Petition No. 0420120007
Appeal No. 0720070081
Agency No. 1H-351-0003-06
DECISION ON A PETITION FOR ENFORCEMENT
On August 26, 2011, the Equal Employment Opportunity Commission (EEOC or Commission) docketed a petition for enforcement to examine the enforcement of an Order set forth in Petitioner v. U.S. Postal Service, Appeal No. 0720070081 (Apr. 22, 2010). The Commission accepts this petition for enforcement, pursuant to 29 C.F.R. � 1614.503.
BACKGROUND
At the time of events giving rise to this complaint, Petitioner worked as a full-time Custodian at the Agency's West Station in Huntsville, Alabama. In May and August 2005, Petitioner requested to be transferred to the Huntsville General Mail Facility as a Mail Handler, because that facility had several openings. The Plant Manager at that facility never responded to Petitioner's requests.
Petitioner contacted an EEO counselor about her transfer requests, and during mediation, the Plant Manager told Petitioner that he was not going to allow her to transfer because of previous EEO events that resulted in a settlement agreement in 2003. After the mediation, Petitioner filed a formal EEO complaint, alleging that she was discriminated against on the bases of reprisal and disability when the Agency did not grant her requests to be transferred to the Huntsville General Mail Facility.
An EEOC Administrative Judge (AJ) held a hearing and issued a decision. The AJ determined that the Agency discriminated against Petitioner on the bases of disability and reprisal when it did not permit Petitioner to transfer to the Huntsville General Mail Facility, because the Agency failed to articulate a legitimate, nondiscriminatory reason for refusing to transfer Petitioner.
For relief, the AJ awarded Petitioner placement in a Mail Handler position, retroactive to June 1, 2005, as well as back pay. The AJ awarded Petitioner $62,000.00 in non-pecuniary compensatory damages, $63,548.50 in attorney's fees, and $323.65 in costs. The AJ also ordered the Agency to post a notice of the finding of discrimination and to train the responsible agency officials with four hours of EEO training.
Both parties appealed the AJ's award of non-pecuniary compensatory damages and attorney's fees and costs. Upon review, the Commission in Petitioner v. U.S. Postal Serv., EEOC Appeal No. 0720070081 (Apr. 22, 2010) upheld the AJ's award of $62,000.00 in non-pecuniary compensatory damages, but increased the AJ's award of attorney's fees to $118,132.65 and costs to $2,718.58. In addition, the Commission repeated the AJ's orders for the Agency to place Complainant in a Mail Processing Clerk position, retroactive to June 1, 2005, provide training to the responsible officials, consider taking appropriate disciplinary actions, and post the notice of discrimination. Finally, the Commission reiterated the AJ's order to "tender to [Petitioner] back pay, along with all the rights and benefits that would have accrued but for the discrimination, retroactive to June 1, 2005, computed according to the applicable provisions of 29 C.F.R. � 1614.501, with interest computed in the manner prescribed by 5 C.F.R. � 550.805."
On March 23, 2011, the Agency issued a report of compliance. For back pay, the Agency's compliance report indicated that the Agency paid Petitioner back pay with interest on December 13, 2007. The compliance report also contains a copy of a letter that the Agency sent to Petitioner's attorney on July 31, 2008 regarding a dispute over the amount of back pay and overtime. In the July 31, 2008 letter, an Agency official wrote:
I told you that if it was determined that [Petitioner] would have worked more mandatory overtime as a mail processing clerk at the plant, we would submit that information to our accounting department for issuance of payment (including interest).
In order to determine how much mandatory overtime [Petitioner] would have worked if she had been at the Plant instead of West Station, I obtained documentation of the overtime hours of the clerks who were not on the Overtime Desired List. The average overtime for clerks at the Plant not on the Overtime Desired List during the time period in question was 18.1425 hours. [Petitioner's] overtime during the same time period was 1.01 hours. Therefore it is calculated that [Petitioner] is entitled to an additional 17.1325 hours of overtime (18.1425 minus 1.01) plus interest. The extra overtime comes to $619.68, and interest on that amount comes to $2.49 for a total of $622.17.
On April 18, 2011, the Commission determined that the Agency provided sufficient documentation to demonstrate that it had taken the corrective actions ordered in the Commission's decision, including paying a total of $4678.44 in back pay. The Commission ceased to monitor the Agency's compliance. See Petitioner v. U.S. Postal Serv., EEOC Compliance No. 0620100443 (Apr. 18, 2011).
Petition for Enforcement
About four months after monitoring ceased, Petitioner's attorney submitted the present petition for enforcement on August 26, 2011, contending that the Agency failed to pay the appropriate amount of back pay. As part of its back pay calculation, the Agency estimated the amount of overtime Petitioner would have earned by using, as comparators, Mail Processing Clerks who were not on the Overtime Desired List. Petitioner's attorney maintains this method underestimates the amount of overtime Petitioner would have earned, because she would have signed the Overtime Desired List at the General Mail Facility, and therefore would have earned more overtime than the Mail Processing Clerks who were not on the Overtime Desired List. Petitioner notes that before she worked as a Custodian, she had worked as a Mail Handler for the Agency and had signed up for overtime every quarter from 1996 to 2003. Petitioner argues that the Agency should have determined how much overtime Mail Processing Clerks who were on the Overtime Desired List at the Huntsville General Mail Facility earned during the relevant time period, in order to calculate the amount of overtime that Petitioner would have earned, as part of her back pay award.
In response to Petitioner's petition, the Agency argues that the petition was untimely filed. Citing 29 C.F.R. � 1614.504 for the proposition that Petitioner had 30 days to assert "the failure to comply with a non-appealed decision," the Agency maintains that Petitioner sat on her hands on the back pay issue for three years, from the time she cashed the overtime check on September 22, 2008 to August 26, 2011. The Agency urges the Commission to bar Petitioner under the doctrine of laches with regard to the correctness of the amounts of overtime paid.
ANALYSIS AND FINDINGS
At the outset, we address the Agency's argument that Petitioner's petition as untimely filed. In previous cases, we have reminded this Agency, as well as others, that the time frame outlined in 29 C.F.R. � 1614.504 do not govern petitions for enforcement. See, e.g., Bullock III v. U.S. Postal Serv., EEOC Petition No. 0420060036 (Dec. 19, 2008); Mika v. Dep't of Air Force, EEOC Petition No. 0420070001 (June 4, 2009). 29 C.F.R. � 1614.504 governs the time frame for filing allegations of compliance with settlement agreements and final actions that have not been the subject of an appeal to the Commission. Here, the final action in this case was the subject of an appeal to the Commission; therefore, this provision of the regulation does not apply here.
The relevant EEOC regulation governing the matter before us is 29 C.F.R. � 1614.503, which provides that "[a] complainant may petition the Commission for enforcement of a decision issued under the Commission's appellate jurisdiction. The petition shall be submitted to the Office of Federal Operations. The petition shall specifically set forth the reasons that lead the complainant to believe that the agency is not complying with the decision." Despite the Agency's assertions, there is no requirement that a petition for enforcement be filed within 30 days of serving a notice of non-compliance on the Agency. We find no reason to apply the doctrine of laches in this appeal; Petitioner did not unduly sit on her rights when she first raised the issue of back pay and overtime to the Agency in 2008 while monitoring of compliance was still ongoing and then filing a petition for enforcement a few months after the Agency issued its report of compliance, and compliance monitoring ceased.
After a review of the record, we find the Agency has not paid Petitioner the full amount of back pay due to her. As a remedy for the finding of discrimination, the Agency was ordered to place Petitioner in a Mail Processing Clerk position, retroactive to June 1, 2005, and provide back pay (including overtime) with interest. We find that the Agency erred in calculating the average overtime of Mail Processing Clerks who were not on the Overtime Desired List during the time period in question (18.1425 hours), and should have instead calculated the average overtime of Mail Processing Clerks at the General Mail Facility who were on the Overtime Desired List during the time period in question.
Accordingly, the issue of the Agency's compliance with its obligation to provide back pay plus interest for the relevant period is REMANDED to the Agency for further action in accordance with the Order listed below.
ORDER
Within one hundred and twenty (120) calendar days of the date this decision becomes final, the Agency shall take the following actions:
1. Calculate the average amount of overtime hours worked by Mail Processing Clerks at the General Mail Facility who were on the Overtime Desired List during the relevant time period in question.
2. Calculate and pay Petitioner any additional sums (including interest) due for back pay, including overtime, retroactive to June 1, 2005, through the date Petitioner was placed in a Mail Processing Clerk position.
The Agency shall provide a report of compliance, as provided herein. The report shall include supporting documentation of the Agency's calculation of back pay during the relevant period and proof of payments provided to Petitioner.
ATTORNEY'S FEES (H0610)
If Complainant has been represented by an attorney (as defined by 29 C.F.R. � 1614.501(e)(1)(iii)), she is entitled to an award of reasonable attorney's fees incurred in the processing of the complaint. 29 C.F.R. � 1614.501(e). The award of attorney's fees shall be paid by the Agency. The attorney shall submit a verified statement of fees to the Agency -- not to the Equal Employment Opportunity Commission, Office of Federal Operations -- within thirty (30) calendar days of this decision becoming final. The Agency shall then process the claim for attorney's fees in accordance with 29 C.F.R. � 1614.501.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K1208)
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.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 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 77960, Washington, DC 20013. 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 (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 (Z0610)
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 from the Court that the Court appoint an attorney to represent you and that the Court also 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
with the Court 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
___9/11/14_______________
Date
2
0420120007
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
7
0420120007