04990020
03-26-2001
Roger V. Holly, Petitioner, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Roger V. Holly v. United States Postal Service
04990020
March 26, 2001
.
Roger V. Holly,
Petitioner,
v.
William J. Henderson,
Postmaster General,
United States Postal Service,
Agency.
Petition No. 04990020
Appeal No. 01950220
Agency Nos. 5E-1081-91, 5E-1167-92
Hearing Nos. 370-94-2318X, 370-94-2319X
DECISION ON PETITION FOR ENFORCEMENT
On January 21, 1999, the Equal Employment Opportunity Commission
(EEOC or Commission) docketed a petition for enforcement to examine
the enforcement of an order set forth in Roger V. Holly v. United
States Postal Service, EEOC Appeal No. 01950220 (August 21, 1997).
This petition for enforcement is accepted by the Commission pursuant to
29 C.F.R. � 1614.503. For the reasons set forth herein, the petition
is GRANTED.
BACKGROUND
Petitioner filed a complaint in which he alleged that the agency
discriminated against him on the bases of sex and reprisal when he
was sexually harassed by his supervisor and then was subjected to
various disadvantages after complaining of the sexual harassment.
Petitioner's complaint was heard before an EEOC administrative judge
(AJ), who found discrimination with regard to the sexual harassment
claim and recommended certain relief, including, in relevant part, back
pay and front pay. The agency thereafter adopted the AJ's findings and
issued a final agency decision finding sexual harassment discrimination
but, as was its prerogative under the Commission's previous regulations,
declined to award all of the relief recommended by the AJ, notably back
pay and front pay.
Petitioner appealed the FAD to the Commission. In EEOC Appeal
No. 01950220, the Commission found that, notwithstanding his receipt
of wage-replacement benefits from the Office of Workers' Compensation
Programs, petitioner was entitled to back pay; further, that petitioner
was not entitled to front pay.<1>
The matter was assigned to a Compliance Officer and docketed as Compliance
No. 06971923 on August 22, 1997. Subsequently, the agency tendered to
petitioner back pay in the amount of $94,487.27 plus interest, for the
period September 21, 1991, to November 21, 1994, representing petitioner's
wage-loss offset by OWCP wage-replacement benefits received.
On December 31, 1998, petitioner submitted the petition for enforcement
at issue. Petitioner contends that the agency has never provided him with
a comprehensible explanation of how his back pay was calculated, and that
the back pay award did not include �overtime, step increases, and the
front pay issue.� Petitioner also stated that, although he was ready,
willing, and able to return to duty in November 21, 1994, the agency
did not return him to work in a suitable position until April 5, 1995.
Petitioner noted that OWCP had continued his wage-replacement benefits
through that period, but that the agency had not tendered to him the
partial back pay to which he also was entitled for the same period.
ANALYSIS and FINDINGS
The Commission notes at the outset that petitioner is not entitled
to front pay. �Front pay� refers to monies payable, under certain
circumstances, for wage loss which occurs after a final finding of
discrimination is entered. See Keys v. Dept. of Defense, EEOC Request
No. 05870464 (May 6, 1988); York v. Dept. of the Navy, EEOC Appeal
No. 01930435 (February 25, 1994). Those circumstances are not present
here, chiefly because petitioner returned to work prior to the finding of
discrimination, i.e., the Commission's decision in Appeal No. 01950220,
becoming final. Wage loss which occurred prior to that time may be
recovered as back pay.
"Back pay" includes all forms of compensation, and reflects fluctuations
in working time, overtime rates, penalty overtime, Sunday premium
and night work, changing rates of pay, transfers, promotions, and
privileges of employment. See Williams v. U.S. Postal Service, EEOC
Appeal No. 01933156 (May 4, 1994), req. to reopen den., EEOC Request
No. 05940680 (February 16, 1995). Accordingly, when the agency calculated
the back pay owed to petitioner, it should have included such elements.
The information provided by the agency to the Commission shows that
petitioner's back pay was calculated at a straight 40 hours per week.
Further, although information is provided showing cost-of-living
adjustments and step-increases, on at least one occasion petitioner's
step-increase was deferred on account of leave-without-pay usage related
to the agency's discriminatory conduct, and there is no indication
that petitioner was made whole for monies lost as a result. Moreover,
there is no indication in the record that the agency has tendered to
petitioner the amount of back pay owing to him over and above the OWCP
wage-replacement benefits he received for the period November 21, 1994,
through April 5, 1995. Finally, petitioner states that he has never
received from the agency a comprehensible explanation of how the agency
calculated his back pay award. Accordingly, the Commission finds that
the agency has failed to comply with its Order in Appeal No. 01950220.
CONCLUSION
Based upon the foregoing, the Petition for Enforcement is GRANTED, and
the agency is ORDERED to take further action as set forth in the Order
of the Commission, below.
ORDER
Within forty-five (45) days of receipt of this decision, the agency
shall take the following actions:
(1) The agency shall re-calculate the award of back pay to petitioner,
taking into account all pay increases which petitioner would have received
if he had not stopped work on account of the discrimination, as well
as lost overtime opportunities, for the period September 21, 1991, to
April 5, 1995. The agency shall then tender this amount to petitioner,
with interest, offset by the award of back pay previously tendered.
(2) The agency shall provide petitioner with a detailed and comprehensible
explanation of the manner in which the award of back pay was calculated,
including identification of the amount and effective dates of all pay
increases and an explanation of how the extent of petitioner's lost
overtime opportunities were estimated for back pay purposes.
STATEMENT OF RIGHTS - ON PETITION FOR ENFORCEMENT
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (R0900)
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 (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
March 26, 2001
__________________
Date
1The evidence available to the Commission at the time reflected that
petitioner had stopped work and was not yet able to return to duty.