0420070011
10-16-2007
Roberto Pachecano, Petitioner, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Roberto Pachecano,
Petitioner,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Petition No. 0420070011
Appeal No. 01A32170
Request No. 05990053
Agency No. 4G780111594
DECISION ON A PETITION FOR ENFORCEMENT
On April 25, 2007, the Equal Employment Opportunity Commission (EEOC
or Commission) docketed a petition for enforcement to examine the
enforcement of orders set forth in Roberto Pachecano v. United States
Postal Service, Appeal Nos. 01A32170 (May 20, 2004), and Roberto Pachecano
v. United States Postal Service, Request No. 05990053 (August 21, 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 pay complainant back pay
and other benefits.
Petitioner filed a complaint in which he alleged that the agency
discriminated against him on the basis of disability in violation of
Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act),
as amended, 29 U.S.C. � 791 et seq. when he was not selected for a
Supervisory Customer Service, EAS-16 position. Petitioner appealed the
agency's final decision to the Commission, and in Pachecano v. United
States Postal Service, Appeal No. 01964125 (September 10, 1998),
we reversed the agency's finding of no discrimination and reinstated
an EEOC Administrative Judge's (AJ) discrimination finding. We also
modified the AJ's remedy ordering that petitioner be retroactively
placed in the position, and instead ordered that petitioner merely be
offered an opportunity to be interviewed for the position. Both parties
requested reconsideration of our decision, and in Request No. 05990053,
the Commission reinstated the AJ's order that petitioner be retroactively
placed in the position at the EAS-16 level, or a substantially equivalent
position. We also ordered the agency to calculate "the appropriate
amount of back pay (with interest, if applicable) and other benefits due"
and to pay petitioner the appropriate amount. Finally, we ordered the
agency to conduct an investigation into the issue of compensatory damages
and issue a new FAD addressing that issue. The matter was assigned to a
Compliance Officer and docketed under Compliance Tracking No. 0620030192
on November 27, 2002.
The agency issued a FAD on January 21, 2003, awarding petitioner $4,500.00
in nonpecuniary compensatory damages. Petitioner appealed the FAD, and
in Decision No. 0120032170 we increased the damages award to $25,000.00,
awarded reimbursement for 300 hours of leave, and denied petitioner
claims for front pay, the value of subsequent promotions, and Special
Achievement Awards allegedly foregone. The matter was docketed under
Compliance Tracking No. 0620040801 on May 28, 2004.
Thereafter, petitioner submitted the petition for enforcement at issue.
Petitioner contends that the agency failed to increase his pay grade
to the EAS-16 level, and failed to calculate benefits based on that
pay grade. Petitioner contends that he is entitled to the following:
* the increased pay grade of an EAS-16 position;
* Economic Value Added bonuses, with interest;
* contributions to his Thrift Savings Plan, with interest;
* increased value of his life insurance, based on his increased salary;
* recalculation of petitioner's retirement benefits based on a higher
salary; and
* Attorney's fees.
Increased Pay Grade.
Petitioner states that his pay grade was not increased to reflect
the EAS-16 position. It is unclear what petitioner means by this.
The record reveals that on July 3, 2003, the agency paid complainant the
sum of $19,562.83 in back pay. Petitioner makes no mention of this in
his Petition. Indeed, petitioner makes no specific claim that back pay
was not paid, nor does he appear to be disputing the amount of back pay.
Accordingly we find that the agency has complied with our order to
calculate "the appropriate amount of back pay." We note, however,
that had petitioner been placed in the EAS-16 position at the time of
the agency's discrimination, his average three year high salary would
have been higher, which may have increased his retirement benefits.
The agency is therefore ordered to officially notify the Office of
Personnel Management (OPM) of petitioner's retroactive entitlement to
higher pay for the years in question.
Economic Value Added (EVA) Bonuses.
In our prior decision under Appeal No. 0120032170 we, among other things,
affirmed the FAD's denial of Special Achievement Awards (SAA) on the
grounds that such awards were speculative. The FAD, however, did not
address petitioner's claim for EVA bonuses, stating that the issue would
be addressed separately. Petitioner contends that the agency never did
address his EVA claim, and the record does not show any FAD addressing
such a claim. It is unclear from the record, however, whether: EVA was an
automatic bonus to which all EAS-16s would have been entitled during the
period in question; it was based on an individual employee's performance,
like SAA; or it was based on some other criteria. The matter of EVA
bonuses is therefore being returned to the agency for a clarification of
such issues and a final determination regarding petitioner's entitlement
to EVA bonuses. We note in this regard that the FAD promising to
separately address petitioner's EVA claim is dated January 21, 2003.
Thrift Savings Plan (TSP) Contributions.
The record does not show that the agency's back pay award included any
contributions to his TSP and the agency has not addressed this issue.
Back pay should include all forms of compensation and must reflect
fluctuations in working time, overtime rates, penalty overtime, Sunday
premium and night work, changing rates of pay, transfers, promotions,
and privileges of employment to which the petitioner would have been
entitled but for the discrimination. Allen v. Department for the Air
Force, Petition No. 04940006 (May 31, 1996) (citing Williams v. United
States Postal Service, EEOC Appeal No. 01933156 (May 4, 1994), request for
reconsideration denied, EEOC Request No. 05940680 (February 16, 1995)).
The Commission construes "benefits" broadly to include, inter alia,
annual leave, sick leave, health insurance, overtime and premium pay,
night differentials, and retirement contributions. Vereb v. Department of
Justice, Petition No. 04980008 (February 26, 1999). Therefore, we find
no persuasive argument to deny petitioner entitlement to increased TSP
contributions based on his increased pay during the period in question.
However, petitioner's request for interest on the TSP contributions is
denied. We further note that any adjustments to petitioner's TSP based
on the gains or losses such contributions would have earned over time had
the original contributions been made at the time, can only be made by the
Federal Retirement Thrift Investment Board (FRTIB). However, since FRTIB
is not a party to this suit, the Commission has no authority over them.
Life Insurance.
Petitioner claims entitlement to the increased value of his life
insurance, based on his increased salary. As with his entitlement to
TSP contributions, we note that the Commission construes "benefits"
broadly and we find no persuasive argument to deny petitioner's
entitlement, assuming that his insurance policy is still in effect.
Again, however, the record contains insufficient information for us
to make a determination as to whether the insurance policy is still in
effect following petitioner's retirement, and if so, what the value of
such increased contributions should be.
Recalculation of Petitioner's Retirement Benefits Based on a Higher
Salary.
Again, petitioner's claim is unclear. To the extent petitioner's pension
benefits are increased by the retroactive increase in his salary to
EAS-16, we will require the agency to notify the Office of Personnel
Management (OPM) of petitioner's retroactive pay increase, so OPM can
recalculate petitioner's pension benefits based on the higher salary.
Regarding the TSP, we have already found above that the agency should
make such contributions to his TSP. We further find that the agency
should submit to petitioner a break down of the contribution amounts
with an explanation for each amount.
Attorney's Fees.
Petitioner won the underlying discrimination complaint, as well as
the appeal concerning compensatory damages, and is thus entitled to
attorney's fees. Petitioner is also entitled to attorney's fees for
the instant Petition for Enforcement.
ORDER
The agency, if it has not already done so, is ordered to perform the
following:
1) Within forty-five (45) days of this decision becoming final,
the agency shall officially notify OPM of petitioner's increased salary
in the years prior to his retirement;
2) Within forty-five (45) days of this decision becoming final,
the agency shall conduct an investigation and issue a FAD addressing
petitioner's entitlement to EVA bonuses during the period in question.
If the agency determines that petitioner is entitled to EVA bonuses,
the agency shall issue petitioner a check for the amount owed, plus
interest from August 21, 2002, the date of our Decision 05990053 which
ordered the agency to pay petitioner back pay "and other benefits."
3) Within forty-five (45) days of this decision becoming final,
the agency shall calculate the amount of increased TSP agency-matching
contributions petitioner would have earned due to his increased salary
from the beginning of the back pay period to the date of his retirement.
The agency shall contact the FRTIB and ensure that such increased
contributions are reflected in petitioner's TSP.
4) Within forty-five (45) days of this decision becoming final, the
agency shall determine the amount of the increased value of petitioner's
life insurance policy, assuming such a policy is still in effect and
is a Federal Government policy provided by the agency. If the policy
is a private policy, or if the policy expired when complainant retired,
or for any other reason, then the agency need not calculate the amount of
the increased value of the policy. If the policy is a policy provided by
the agency and is still in effect, the agency shall correct the policy
coverage amount to reflect petitioner's higher salary during the years
in question.
The agency is directed to submit a report of compliance, as provided in
the paragraph entitled "Implementation of the Commission's Decision." The
report must include evidence that the corrective actions have been
implemented. The agency shall send a copy of the report and all its
enclosures to the petitioner.
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.
ATTORNEY'S FEES (H0900)
If complainant has been represented by an attorney (as defined by
29 C.F.R. � 1614.501(e)(1)(iii)), he/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.
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S0900)
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. If you
file a request to reconsider and also file a civil action, 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
October 16, 2007
__________________
Date
2
0420070011
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
6
0420070011