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.