Rogelio Perez, Petitioner,v.John E. Potter, Postmaster General, United States Postal Service, (Southwest Area) Agency.

Equal Employment Opportunity CommissionMar 3, 2005
04a40041 (E.E.O.C. Mar. 3, 2005)

04a40041

03-03-2005

Rogelio Perez, Petitioner, v. John E. Potter, Postmaster General, United States Postal Service, (Southwest Area) Agency.


Rogelio Perez v. United States Postal Service

04A40041

March 3, 2005

.

Rogelio Perez,

Petitioner,

v.

John E. Potter,

Postmaster General,

United States Postal Service,

(Southwest Area)

Agency.

Petition No. 04A40041

Request No. 05A3197

Agency No. 4G-780-0099-00

Hearing No. 360-A1-8180X

DECISION ON A PETITION FOR ENFORCEMENT

On September 9, 2004, the Equal Employment Opportunity Commission (EEOC or

Commission) docketed a petition for enforcement to examine the enforcement

of an order set forth in Rogelio Perez v. United States Postal Service,

EEOC Appeal No. 07A20117 (July 23, 2003), request for reconsideration

denied, EEOC Appeal No. 05A31197 (Sept. 10, 2003). The Commission

accepts this petition for enforcement pursuant to 29 C.F.R. � 1614.503.

Procedural History

According to the record, petitioner filed a complaint claiming

discrimination on the basis of disability. An EEOC Administrative Judge

(AJ) found that the agency violated Section 501 of the Rehabilitation Act

of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq. when

it denied petitioner employment. The AJ held the agency liable for

$60,000.00 in pecuniary damages. The agency rejected these findings in

its final action. On appeal, the agency asked the Commission to affirm

its final order, but in the alternative to reduce the damage award from

$60,000.00 to $5,000.00. In EEOC Appeal No. 07A20117, the Commission

concluded that petitioner had been denied employment unlawfully on

the basis of a disability, reduced the compensatory damages award to

$20,000.00, and ordered the agency to take, inter alia, the following

remedial action:

2. The agency shall award complainant back pay with interest and other

benefits due complainant, for the period from December 22, 1999 to the

date he enters into or declines to enter into duty. The agency shall

determine the appropriate amount

of back pay with interest and other benefits due complainant, pursuant

to 29 C.F.R. � 1614.501, no later than sixty (60) days after the date

this decision becomes final. The complainant shall cooperate in the

agency's efforts to compute the amount of back pay and benefits due, and

shall provide relevant information requested by the agency. If there

is a dispute regarding the exact amount of back pay and/or benefits,

the agency shall issue a check to complainant for the undisputed amount

within sixty (60) calendar days 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.�

Perez v. United States Postal Serv., EEOC Appeal No. 07A20117 (July 15,

2003), request for reconsideration denied, EEOC Appeal No. 05A31197

(Sept. 10, 2003).

The order also specified that the agency was entitled to reasonable

attorney's fees incurred in the processing of the complaint. See id.

The matter was assigned to a Compliance Officer and docketed as Compliance

No. 06A31118 on July 25, 2003. The Commission issued a letter on

September 17, 2003, stating that compliance monitoring had ended because

both the agency and complainant filed requests for reconsideration.

The Commission denied these requests on September 25, 2003. Subsequently,

on February 24, 2004, the agency submitted its final compliance report

to the Commission stating that it complied with all orders issued in

Appeal No. 07A20117. Petitioner submitted the petition for enforcement

now at issue which was docketed on September 9, 2004.

Petitioner contends that the agency failed to timely pay and properly

calculate the back pay owed to him. Furthermore, petitioner requests

reasonable attorneys fees and costs, and an evidentiary hearing and

issuance of a subpoena.<1> Specifically, petitioner argues that the

agency: (1) failed to include in back pay calculations promotions and

salary increases given to regular postal carriers; (2) erroneously

offset workers' compensation payments for the period from December 25,

1999 through October 1, 2001; (3) failed to account for benefits, and (4)

failed to pay appropriate interest on the back pay. See First Amended

Petition for Enforcement and for Attorney's Fees and Costs (Petition).

On October 4, 2004, the Commission received a response from the agency in

which it acknowledged that it had issued to petitioner the back pay check

more than sixty days after the Commission's Order became final, but it

argues that the delay was caused by petitioner's failure to cooperate with

the agency in providing complete earnings information. The agency also

contends that the amount it paid petitioner was calculated properly based

on the earnings of the employee who had been hired in petitioner's stead.

With regard to petitioner's specific contentions, the agency maintains

that (1) rural carrier associates are not entitled to regular promotions,

but rather they are promoted only when a higher level position opens and

only then by seniority; (2) it properly deducted the workers' compensation

benefits from back pay because during the time he received these benefits

he was unable to work and therefore not eligible to receive back pay,

and (3) petitioner is not entitled to attorneys fees and costs because

the agency fully complied with the Commission's Order.<2>

Analysis and Findings

The purpose of a back pay award is to restore to petitioner the income he

would have otherwise earned but for the discrimination. See Albemarle

Paper Co. v. Moody, 442 U.S. 405, 418-19 (1975); Davis v. United States

Postal Serv., EEOC Petition No. 04900010 (Nov. 29, 1990). The agency is

required to make certain deductions from back pay awards to ensure that

the employee does not receive more in total benefits than he would have

received in the absence of the personnel action. The person who has been

discriminated must receive a sum of money equal to what would have been

earned by that person in the employment lost through discrimination (gross

back pay) less what was actually earned from other employment during the

period, after normal expenses incurred in seeking and holding the interim

employment have been deducted (net interim earnings). The difference

between gross back pay and net interim earnings is net back pay due.

Net back pay accrues from the date of discrimination, except where

the statute limits recovery, until the discrimination against the

individual has been remedied. Gross 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.

See Ulloa v. United States Postal Serv., EEOC Petition No. 04A30025,

(Aug. 3, 2004) (citing Allen v. Dep't of Air Force, EEOC Petition

No. 04940006 (May 31, 1996)).

The Commission construes �benefits� broadly to include, inter alia,

annual leave, sick leave, health insurance, overtime and premium pay,

night differentials and retirement contributions. See Vereb v. Dep't

of Justice, EEOC Petition No. 04980008 (Feb. 29, 1999). A back pay

claimant under Title VII generally has a duty to mitigate damages.

The burden is on the agency, however, to establish by a preponderance

of the evidence that petitioner has failed to mitigate his damages.

See 29 C.F.R. � 1614.501(d); McNeil v. United States Postal Serv.,

EEOC Request No. 05960436 (Dec. 9, 1999). The Commission recognizes

that precise measurement cannot always be used to reduce the wrong

inflicted; nonetheless, the Commission believes that the burden of

limiting the remedy rests with the agency. See Davis v. United States

Postal Serv., EEOC Petition No. 04900010 (Nov. 29, 1990). It is the

agency's obligation to ensure that its back pay calculations are clear,

supported in the record, and in accordance with 29 C.F.R. � 1614.501.

Untimely Payment of Back Pay

With regard to petitioner's first claim, the Commission finds that

the agency complied with the Commission's Order, although it did not

do so within the specified time period. As stated above, the Order

mandates that the agency is to �determine the appropriate amount of

back pay with interest and other benefits due complainant, pursuant

to 29 C.F.R. � 1614.501, no later than sixty (60) days after the date

this decision becomes final.� Perez v. United States Postal Serv.,

EEOC Appeal No. 07A20117 (July 15, 2003), request for reconsideration

denied, EEOC Appeal No. 05A31197 (Sept. 10, 2003). The agency remitted

to petitioner the back pay check on March 30, 2004 � over 120 days after

the Commission decision became final. However, the agency contends that

the delay was attributed to petitioner's failure to cooperate with the

agency in its efforts to compute the back pay amount.

In support of its argument, the agency submits a declaration of the

Labor Relations Specialist for the Postal Service in charge of gathering

the PS Form 8038, the form necessary to calculate back pay. Along with

this declaration, the agency submits copies of correspondence from the

Postal Service to petitioner and his counsel requesting the requisite

information. The record reveals that soon after the AJ issued the

decision in favor of petitioner, the Postal Service contacted him

five times by mail and several more times by telephone asking for

a completed copy of Form 8038. The requests were ignored until

November 2003 when petitioner finally submitted the form, but even

then, the form was incomplete because it stated that petitioner had

received workers' compensation benefits but did not state the amount.

Further correspondence from the agency asking petitioner to clarify

followed. The documents submitted by the agency show that petitioner

delayed in clarifying this important information and was never fully

forthright with the agency regarding the dates he received the workers'

compensation benefits. See Agency's Brief Opposing First Amended Petition

for Enforcement (Agency's Brief); Labor Relations Specialist Declaration,

at �� 2-9 & supporting correspondence.

In light of this evidence, the Commission finds that the agency's delay

in issuing the back pay check is permissible, and as such finds no

failure to comply with the Commission's Order. Petitioner was the one

who failed to cooperate with the agency in the processing of his back

pay check. Moreover, the Commission finds no evidence of retaliation

against petitioner, as he alleges.

Improper Calculation of Back Pay

As for petitioner's second claim, the Commission finds merit to some of

his arguments. Petitioner contends that the Postal Service erred (1)

in calculating his back pay based on the earnings of the employee who had

been hired for the position in his stead, and (2) in not accounting for

promotions and pay increases he would have received had he been selected

for the position. Petitioner states that using another employee's

earnings to calculate the back pay owed to him is arbitrary and fails

to take into account his particular experience. Instead, he states,

his back pay should have been based on a regular forty hour per week

work schedule. Further, with regard to promotions and pay increases,

petitioner contends that most rural associates are promoted to regular

rural carriers on average after two years of service, and as such, his

back pay should have included the respective pay increase. See Petition,

at 2.

The agency states that petitioner's claims are speculative and erroneous.

It maintains that it was proper to base his back pay on the earnings of

the person hired in his place, particularly where the position at issue

here - rural carrier associate (RCA)- is a substitute position in which

the associate carrier works only when the regular carrier is absent.

The agency explains that an RCA is an hourly worker who does not follow

a set forty-hour work schedule as a regular employee. An RCA's hours

can vary widely from one office to another. See Agency's Brief, at 6-7;

Labor Relations Specialist Declaration, at �� 10-11.

The Commission is persuaded by the agency's arguments. The person who

has been discriminated against must receive a sum of money equal to what

would have been earned by that person in the employment lost through

discrimination. Petitioner suffered discrimination in not being hired

for the RCA position; it is only logical that his back pay be based

on earnings of the individual who was hired. Petitioner's training

and experience bears no weight in what would have been his salary,

as there is no evidence that petitioner had any seniority within the

Postal Service. Furthermore, basing back pay on the earnings of the

person hired for the position is proper, considering that an RCA is an

hourly employee. Had petitioner been hired, he would have worked the

same hours as the person who was hired because the RCA only works when

called upon.<3> Therefore, the agency's back pay calculations based on

the other employee's earnings was proper in this particular instance.

With regard to petitioner's claim that his back pay must take into

account promotions and salary increases, the Commission finds that

petitioner is mistaken. The record in this regard is clear. There is

no set timetable for the promotion of RCAs. The evidence shows that

the Postal Service has a seniority system, which means that when a

regular carrier position becomes available an RCA may be promoted if he

or she has adequate seniority. As the hearing transcript points out,

it may be �several years,� if not longer, before an RCA may be promoted.

Hearing Transcript, at 144:8-24. Accordingly, the agency did not err

in not including promotions into the back pay calculation.

The Commission agrees in part with petitioner's claim that the agency

improperly deducted his workers' compensation benefits from his back pay.

The agency contends that petitioner provided confusing information

regarding his workers' compensation payments which petitioner refused

to clarify. See Agency's Brief, at 8-9. Furthermore, the agency argues

that petitioner is not entitled to back pay for the period of December

25, 1999 through October 1, 2001 because the information he submitted

indicated that petitioner was unable to work. To support its argument,

the agency cites to Cook v. United States Postal Serv., EEOC Appeal

No. 01A15414 (July 11, 2002) for the well-settled proposition that

a �Title VII plaintiff can recover back pay only for the period the

plaintiff is �available and willing to accept substantially equivalent

employment' elsewhere.� See id.

It is also well-settled Commission precedent, however, that workers'

compensation awards do not preclude recoveries for discrimination,

including back pay, where such awards do not result in double recovery.

See, e.g., Ulloa v. United States Postal Serv., EEOC Petition

No. 04A30025, (Aug. 3, 2004) (citing Sands v. Dep't of Defense, EEOC

Petition No.04990001 (Feb. 25, 2001)). A workers' compensation award

that is �meant to compensate for lost wages should be deducted from the

total amount of back pay to which the petitioner is entitled in order to

avoid double wage recovery, but the portion of the ... award that is paid

as reparation for physical injuries should not be deducted from back pay

because it is unrelated to wages earned.� Sands v. Dep't of Defense,

EEOC Petition No. 04990001 (Feb. 25, 2000) (citing EEOC v. Blue & White

Serv. Corp., 674 F. Supp 1579, 1582 (D. Minn. 1987)).<4>

Therefore, the Commission holds that the wage portion of the workers'

compensation award is deductible because it would result in double

payment to petitioner. However, the portion of the award that is deemed

to be reparation for the physical injury he suffered is unrelated to the

wages earned, and as such does not result in double wage payment to him.

This reparation portion of the award is not deductible from back pay.

According to the agency's own account, it deducted the full amount of

the workers' compensation benefits, both the amount given to him as

lost wages and as reparations, from December 25, 1999 through October

1, 2001. Consequently, the Agency erred in this part of the back pay

calculation. We remand this matter to the agency for additional inquiry

into petitioner's workers' compensation benefits. Petitioner is hereby

admonished to cooperate fully with the agency and provide complete and

thorough information to the agency in this regard.

Failure to Pay Benefits Due

Petitioner further alleges that the agency failed to include employment

benefits in its back pay calculations. In response, the agency

claims that RCAs are not entitled to benefits. See Labor Relations

Specialist Declaration, at �10. The Commission is not convinced that

RCAs get no benefits. As mentioned above, the Commission construes

�benefits� broadly to include, inter alia, annual leave, sick leave,

health insurance, overtime and premium pay, night differentials and

retirement contributions. See Vereb v. Dep't of Justice, EEOC Petition

No. 04980008 (Feb. 29, 1999). As a federal employee, petitioner would

have been entitled to receive at least some of these benefits, and so

the back pay calculations must include these figures. Therefore, the

agency is directed to include an amount that reflects all of the benefits

normally given to an RCA, plus the applicable interest. The Commission

requests that the agency provide a clear, decipherable explanation as

to how it reached its final amount.

Attorney's Fees

The Commission finds that petitioner is entitled to receive reasonable

attorney's fees. As petitioner's additional work with regard to this

petition has been necessitated in part by the agency's failure to properly

comply with the Commission's Order, the agency shall reimburse petitioner

for attorney's fees and costs incurred in connection with the filing of

this petition for enforcement. However, the attorney requesting the fee

has the burden of proving, by specific evidence, his or her entitlement

to the requested amount. See, e.g., Lee v. United States Postal Serv.,

EEOC Petition No. 04A40026 (Jan. 31, 2005). Petitioner's attorney here

has failed to submit any needed billing information. Petitioner's

attorney therefore is directed to comply with the order concerning

attorney's fees set forth below. Counsel for petitioner is reminded

that the fee award is normally determined by multiplying the number

of hours reasonably expended on the case by a reasonable hourly rate.

See Blum v. Stenson, 465 U.S. 886 (1984); Hensley v. Eckerhart, 461

U.S. 424 (1983); 29 C.F.R. � 1614.501(e)(ii)(B) (2004).

Based on a review of the record, and for the reasons set forth in

the instant decision, the Commission finds that the agency did not

fully comply with our prior Order. We direct the agency to conduct

a supplemental investigation to gather the information necessary to

calculate properly petitioner's back pay award pursuant to the guidance

set forth in this decision, and to provide a detailed explanation as to

how its new back pay award was reached.

ORDER

The agency shall conduct a supplemental investigation which shall include

the following actions:

(1) Determine, with specificity and supporting documentation, what

portion of petitioner's workers' compensation benefits was deemed to be

for lost wages, and what portion was deemed to be in reparation for his

physical injury. The agency shall deduct only the lost wages portion

of the award from back pay, and shall not deduct the reparation portion.

Additionally, the agency shall take into account the applicable accrued

interest. Petitioner is likewise directed to cooperate fully and in a

timely manner with the agency's requests for information in this regard.

(2) Determine, with specificity and supporting documentation,

the appropriate benefits, which include, among other things, any

annual leave, sick leave as well as any health insurance, overtime and

premium pay, and retirement contributions that are owed to petitioner

pursuant to our Order set forth in Perez v. United States Postal Serv.,

EEOC Appeal No. 07A20117 (July 15, 2003), request for reconsideration

denied, EEOC Appeal No. 05A31197 (Sept. 10, 2003). The agency shall

include these benefits, plus interest, in its back pay calculations.

The agency shall also submit documentation that all back pay has been

paid at the appropriate rate.

The agency shall complete its supplementation of the record within

thirty (30) calendar days of the date this decision becomes final.

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 petitioner,

including evidence that the corrective action has been implemented.

Compliance will not be considered complete unless the report provides

evidence that the corrective action has been implemented.

ATTORNEY'S FEES (H0900)

If petitioner 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.

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.

PETITIONER'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:

March 3, 2005

______________________________ __________________

Carlton M. Hadden, Director Date

Office of Federal Operations

1 The Commission must point out that hearings within the EEOC process

are governed by 29 C.F.R. � 1614.109 (2004). Section 1614.108(f)

generally entitles complainant , among other things, to request a

hearing and decision from an AJ or a final decision from the agency.

The regulations provide no other hearing opportunities. Petitioner has

already had a hearing before an AJ who ruled in his favor.

2 It should be noted that along with the Agency's Brief Opposing First

Amended Petition for Enforcement, the agency submitted a copy of the

check for interest owed to petitioner. Therefore, the Commission shall

not discuss petitioner's claim that the agency failed to pay him interest

on the back pay.

3 The Commission also finds it persuasive that petitioner, who is

now an RCA in Laredo, Texas, works an average of 9-12 hours per week.

The Commission understands that work hours may vary greatly from one

office to another, but in light of the agency's evidence, the Commission

finds it illogical to set petitioner's back pay on a forty hour work week.

4 Federal courts have also found that workers' compensation benefits

are nondeductible from back pay recoveries under the �collateral source�

doctrine. See, e.g., Knafel v. Pepsi-Cola Bottlers, 899 F.2d 1473, 1480

(6th Cir. 1990). Applying this logic to the case at bar, the workers'

compensation benefits that petitioner received from his prior employer to

compensate him for his on-the-job injury should not be deducted because

it came from a source other than the Postal Service.