04980023
06-02-1999
Suzanne Morra-Morrison, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Suzanne Morra-Morrison v. United States Postal Service
04980023
June 2, 1999
Suzanne Morra-Morrison, )
Appellant, ) Petition No. 04980023
) Petition No. 04950003
v. ) EEOC Request Nos. 05970374 &
) 05950164
William J. Henderson, ) EEOC Appeal Nos. 01940642 &
Postmaster General, ) 01962057
United States Postal Service, ) Agency Nos. 4B117493 &
Agency. ) 4B020106894
______________________________)
DECISION ON PETITION FOR ENFORCEMENT
The Equal Employment Opportunity Commission (EEOC) has docketed a petition
for enforcement from Suzanne Morra-Morrison (hereinafter referred
to as appellant) requesting enforcement of the Commission's Orders in
Morra-Morrison v. United States Postal Service, EEOC Appeal No. 01962057
(December 12, 1996), aff'd, EEOC Request No. 05950164 (December 18,
1996) and Morra-Morrison v. United States Postal Service, EEOC Appeal
No. 01940642 (October 27, 1994), aff'd, EEOC Request No. 05970374 (April
24, 1997). This petition is accepted by the Commission in accordance
with the provisions of EEOC Regulation 29 C.F.R. �1614.503.
ISSUE PRESENTED
The issue presented is whether the agency has complied with the
Commission's Orders in the above decisions.
BACKGROUND
This is the second petition that appellant has filed requesting
enforcement of the Commission's Orders in the above referenced decisions.
The Commission previously had found that the agency had discriminated
against appellant when it failed to reasonably accommodate her
disability and when it twice removed her from her position as a letter
carrier. As a remedy, the Commission ordered the following: retroactive
reinstatement; an award of back pay with interest and restoration of any
other benefits due;<1> payment of reasonable attorney's fees and costs;
a supplemental investigation of appellant's compensatory damages claim;
and posting of a notice that unlawful discrimination had occurred. See
Morra-Morrison v. United States Postal Service, EEOC Appeal No. 01940642
(October 27, 1994), aff'd, EEOC Request No. 05950164 (December 18,
1996) and Morra-Morrison v. United States Postal Service, EEOC Appeal
No. 01962057 (December 12, 1996), aff'd, EEOC Request No. 05970374
(April 24, 1997).
Appellant subsequently filed a petition for enforcement/clarification,
asserting that the agency had failed to comply with the Commission's
Orders. In EEOC Petition No. 04950003 (November 3, 1997), the
Commission--inter alia--reviewed the agency's compliance report and found
that the agency had posted a notice to employees; issued a final decision
on appellant's compensatory damages claim; and reinstated appellant to her
position, effective August 16, 1997. Although the agency had initiated
the processing of appellant's claim for back pay and interest, it had
not yet issued a check therefor. Consequently, the Commission ordered
the agency to issue appellant a check for back pay and interest, and to
restore any other benefits due once the agency had issued and received
back from appellant a back pay decision/worksheet that included all of the
time up to the date of appellant's return to duty, i.e., August 16, 1997.
Appellant--through counsel--again has submitted a series of letters and
related documents regarding the agency's compliance with the Commission's
Orders in the above decisions. In essence, appellant asserts that
the agency has only partially complied with the relief ordered by the
Commission.<2>
ANALYSIS AND FINDING
The issue presented is whether the agency has complied with the
Commission's Orders in the above cases.
The Commission has reviewed all of appellant's letters and documents
submitted to the Commission's Compliance Division between July 1997 and
July 1998. The Commission notes that some of the compliance matters
raised in appellant's earlier submissions have changed over time.
For example, appellant initially complained that the agency had not
issued a check for back pay and interest on back pay but, now that she
has received these checks, questions whether the amount awarded was
correct. Consequently, the Commission addresses the current compliance
matters herein. The Commission primarily focuses on appellant's July 3,
1998 and October 23, 1997 submissions, but also will address any other
outstanding compliance matters not raised in those two submissions,
e.g., appellant's uniform allowance.
Back Pay and Interest
Appellant acknowledged that she received a check for back pay in the
amount of $107,756.34 and a check for interest on back pay in the amount
of $34,681.94. She complained, however, that the agency provided no basis
for its calculations and that she therefore is unable to determine the
accuracy of the awards.
Appellant identified the following deficiencies:
1. The agency has not explained appellant's hourly rate of pay or stated
how it determined the number of base pay hours, overtime hours or penalty
overtime hours, e.g., information regarding comparative employees.
2. The agency failed to explain how it determined the amounts deducted
from the award.
3. There is no information regarding any step increases or cost-of-living
adjustments (COLAs) to which appellant may have been entitled during
the time periods at issue.<3>
4. The evidence is insufficient to show the interest rate used to compute
the interest due on the back pay award; whether the rate used comports
with the Treasury rates under the Back Pay Act; and whether the interest
was compounded daily.
The Commission finds that record evidence is insufficient to determine the
accuracy of appellant's back pay award and interest on back pay because of
the deficiencies noted in 1-4 above. The agency shall provide appellant
with the information indicated in 1-4 above.
5. The agency has not properly corrected appellant's employment records
to reflect the correct step pay level and/or retroactively credit her as
being continuously employed full-time during the time periods at issue.
Specifically, the agency advised appellant in September 1997 that she
had accumulated 13 weeks of leave without pay (LWOP) and that her next
step increase would be deferred seven pay periods as a result of her
LWOP status.
The agency shall correct appellant's records to show that she was
continuously employed and, if her step increase was deferred, pay her
the difference between what she actually was paid and what she should
have been paid had the step increase not been deferred. The agency
also shall pay appellant interest on any amount owed due to the improper
deferral of her step increase.
6. Appellant complained that her back pay award was calculated up to
August 16, 1997 but that the agency did not actually return her to work
until August 18, 1997. She asserted that she improperly was charged
for 8 hours of leave without pay (LWOP) on August 16, 1997.
The agency's letter to the Commission's Compliance Division indicated that
appellant returned to work on August 16, 1997. By contrast, the agency's
August 8, 1997 letter to appellant states that "you may return to your
previous assignment in the Needham Post Office, effective August 16, 1997.
We request that you report on Monday, August 18, 1997 at 9:00 a.m."
The Commission's Order contemplated that when appellant was reinstated,
she also would be allowed to resume working at that time. Consequently,
if August 16, 1997 was a regularly scheduled work day for appellant,
the agency must change the 8 hours of LWOP on August 16, 1997 to work
hours and pay appellant for that time.
7. The back pay award allegedly was reduced by $3,135.28 as an offset for
unemployment compensation appellant had received. The agency advised
the State that there were no deductions to the back pay award for
unemployment compensation and the State subsequently determined that there
was an overpayment which it was entitled to recover from appellant.<4>
Appellant also asserted that she had to use 8 hours of annual leave to
attend a hearing regarding the overpayment.
The agency may not deduct unemployment compensation from appellant's
back pay award. See Scott v. United States Postal Service, EEOC Appeal
No. 01921641 (June 11, 1993). The record, however, contains no evidence
to show that the back pay award was offset by appellant's unemployment
compensation. The check statement accompanying the back pay award listed
by category the amounts deducted from the gross back pay award and
there was no indication of a deduction for unemployment compensation.
Nonetheless, because of the difference between the amount stated in the
compliance report and the actual amount appellant received ($110,891.62
versus $107,756.34), the agency shall investigate the discrepancy,
i.e., why appellant received a lesser amount than that reported to the
Compliance Division. If the agency improperly deducted unemployment
compensation from appellant's back pay award, the agency also shall
credit appellant for the 8 hours of annual leave that she used to attend
the hearing regarding the overpayment.
8. Appellant complained that the agency has deducted $1,476.68 for union
dues.
The agency shall conduct a supplemental investigation to determine
the propriety of deducting union dues from appellant's back pay award.
The agency may properly deduct union dues if: 1) the complainant was a
member of the union before her removal; 2) it routinely deducts union dues
from employees who were union members; and, 3) union dues were routinely
deducted from appellant's pay before she was removed. See Vu v. United
States Postal Service, EEOC Appeal No. 04950020 (February 16, 1994).<5>
Current Pay Rate
Appellant asserted that she currently is being paid at an incorrect pay
rate as indicated in the August 26, 1997 Notice of Personnel Action.
Although the base salary--$34,618.00 (the 6-G level)--listed therein was
correct for March 1996, she contended that the correct rate of pay for
August 1997 was $35,034.00. Appellant asserted that she currently should
be paid at the 6-K level. Appellant also complained that although her
pay stub for pay period No. 18 indicated she was a "level 6" employee, her
pay stub for pay period No. 20 indicated she was a "level 5" employee.
The Commission is unable to determine from the record whether appellant
is being paid at the correct level of pay. The agency shall conduct
a supplemental investigation to determine whether appellant's current
level of pay is correct, including the change from level 6 to level 5
between pay periods 18 and 20.
Restoration of Leave
A "Personal Statement of Benefits" for 1997 shows that appellant was
credited with 92 hours of sick leave, 142 hours of annual leave, and 30.9
hours of holiday leave. Appellant asserted that she is entitled to 6
hours of annual leave and 4 hours of sick leave for each pay period, i.e.,
104 hours of sick leave and 156 hours of annual leave per year. Appellant
further asserted that because there are 10 Federal holidays each year
(80 holiday hours) the 30.9 hours of holiday leave which she was credited
also was incorrect.
The Commission is unable to determine from the record whether appellant
was credited the correct amount of leave. The agency shall conduct a
supplemental investigation in this regard. If appellant is entitled
to less than 104 hours of sick leave and 156 hours of annual leave,
the agency must explain why.
Posting Notice
Appellant asserted that when she returned to duty in August 1997, the
Union Stewards at the Needham facility advised her that they had not
observed "any notice of violation posted for any length of time" in the
facility regarding either of her cases. As supporting evidence, appellant
submitted an affidavit to that effect from one of the Union Stewards.
The agency's August 1997 Compliance Report stated that "On May 7, 1997,
the Notice to Employees was posted throughout the Needham Post Office
in the Boston District. The expiration date of the posting was July
7, 1997." A copy of the notice from appellant's second complaint
(EEOC Appeal No. 01962057)--signed by an agency official and dated as
posted from May 7, 1997 to July 7, 1997--is included in the record. The
record does not contain a copy of the posting notice from appellant's
first complaint, EEOC Appeal No. 01940642 and EEOC Request No. 05950164.
The Commission is unable to determine whether the notices of violation
were posted in accordance with the Commission's Orders. Consequently,
the agency shall provide an affidavit from the appropriate agency official
indicating whether the notices were posted and if so the location where
they were posted and the period of time that they were posted. If the
agency has not already done so, it must properly post both notices in
accordance with the Commission's Orders.
Thrift and Retirement Savings
Appellant complained that the agency failed to provide any explanation as
to how it arrived at the figure of $1,066.63 that was credited to "FERS"
or any explanation as to how it arrived at the figure of $2,100 credited
to her "TSP" account.<6> Appellant further complained that there is
no evidence to show that the agency has made its matching contributions
to the TSP. She also asserted that she is entitled to interest on the
money credited to her TSP pursuant to the Commission's decision in Fiene
v. United States Postal Service, EEOC Appeal No. 04920009 (September 3,
1992).
Record evidence suggests that appellant's TSP contribution was "matched"
by the agency and that the agency also contributed a 1% amount.
Nonetheless, different documents show different TSP amounts; there
is no explanation as to how the agency arrived at these amounts; and,
there is no evidence to show that appellant was credited with interest
on these contributions.
The agency shall provide appellant with the exact amounts contributed to
her TSP, e.g., the amount of appellant's contribution, the amount of the
agency's matching contribution, the amount of interest credited on those
amounts, and so on. The agency also shall provide sufficient information
to allow a determination as to the accuracy of those amounts.
Health and Life Insurance
In her October 1997 letter, appellant complained that her health and
life insurance coverage had not been restored after she returned to duty.
When she received her first paycheck, the agency's Personnel Department
advised her that it had not made any deductions for these two benefits
because it had not received her completed back pay work sheets. In her
July 1998 letter, appellant reiterated her contention that these benefits
had not been restored.
A review of appellant's 1997 "Personal Benefits Statement" showed that
health benefits were part of her total compensation and also showed the
monetary amounts contributed by appellant and the agency. There was no
indication as to when her coverage was restored, however.
Although appellant complained that her life insurance coverage also had
not been restored, a PS Form 50 stated that appellant was "ineligible"
for life insurance. Her 1997 "Personal Benefits Statement" likewise
failed to show life insurance as among her benefits. Appellant would
be entitled to life insurance coverage after her reinstatement only if
she already had elected this benefit before her removal.
The agency shall conduct a supplemental investigation to determine when
appellant's health benefits were restored and whether she was entitled
to life insurance benefits after she returned to duty.
Miscellaneous
1. Appellant received a check for $5.61 during pay period 4 in 1997 for
"Vehicle Hire Subject to Withholding." She asserted that the check
predated her reinstatement by several months and is not referenced in
her back pay check. She does not know why the check was sent or what
element of relief it addressed.
The record contains no information regarding the above check. The agency
shall explain to appellant the purpose of this check.
2. Appellant asserted that after she was reinstated to her position
in August 1997, she still had not received a uniform allowance as of
November 1997.
The Commission is unable to determine whether appellant was entitled to
a uniform allowance after her reinstatement and, if so, whether she has
received it. The agency shall conduct a supplemental investigation in
this regard.
3. Appellant asserted that the agency had not produced any evidence to
show that all references to the discriminatory personnel actions have
been removed from her records.
Because the Commission previously found that appellant's removals were
discriminatory and ordered her reinstatement, the agency must remove
from her records any letters of termination and/or notices of personnel
action in this regard. As evidence thereof, the agency shall provide an
affidavit from an appropriate agency official.
4. Appellant complained that the agency's August 26, 1997 Notice of
Personnel Action (PS Form 50) contained erroneous information about a
"nonexistent" termination on March 21, 1996--a time when she was not
working for the agency.
The agency shall determine whether there were any errors in any of its
"Notice of Actions" and, if so, shall correct them.
"Point of Contact"
A review of the instant case showed that the attorney's attempts to
get clarification and/ or information from the agency on a number of
the matters addressed herein were unsuccessful. To remedy this apparent
breakdown in communication, the Commission directs the agency to designate
a "point of contact" for appellant. That is, the agency shall designate
one individual who will be responsible for providing appellant with the
information she needs to determine whether she has been "made whole"
pursuant to the Commission's Orders. This individual should be able
to answer appellant's questions regarding such matters as back pay
calculations, crediting of leave, retirement savings, and so forth, or
should be able to get the information from the appropriate individuals to
respond to appellant's inquiries. The agency shall provide appellant with
the telephone number and work hours of this individual. Because appellant
is represented by counsel, the agency shall ensure that the individual
communicates directly and promptly with appellant's attorney.
Appellant has complained of the agency's delay in complying with the
Commission's Orders. Although the agency did not provide all of the
required relief within the designated time periods, e.g., appellant's
back pay award was not issued until September 1997, record evidence was
sufficient to show that the agency was attempting to act within these
time periods.
Finally, the Commission notes that appellant is represented by an
attorney. The attorney is entitled to reasonable fees and costs in
relation to the filing of this petition for enforcement. The attorney
is also entitled to reasonable fees and costs, to the extent he has not
been so paid, for efforts expended in resolving the agency's failure
to comply with the Commission's Orders and for any work done in relation
to the instant Order.
CONCLUSION
Based upon a review of the record and the submissions of the parties,
and for the foregoing reasons, the Commission grants the petition for
enforcement. The Commission finds that the agency has not yet complied
with the Orders in the decisions referred to herein, and orders the
agency to comply as set forth in this decision and the Order below.
ORDER
Within thirty (30) days of its receipt of this decision, the agency is
ORDERED to take the actions outlined below:
1. The agency shall provide sufficient information for appellant to
determine the accuracy of the amounts awarded for back pay and interest
on back pay. The agency shall refer to #1-4 in the section "Back Pay
and Interest" for the specific information required.
2. The agency shall correct appellant's records to show that she was
continuously employed and, if her step increase was deferred, pay her
the difference between what she actually was paid and what she should
have been paid had the step increase not been deferred. The agency
also shall pay appellant interest on any amount owed due to the improper
deferral of her step increase.
3. The agency shall change the 8 hours of LWOP on August 16, 1997 to
work hours and shall pay appellant for that time if August 16, 1997 was
a regularly scheduled work day for appellant.
4. The agency shall investigate the discrepancy between the amount of
the back pay award reported to the Compliance Division and the amount
appellant actually received and explain the discrepancy. If the agency
improperly deducted unemployment compensation from appellant's back pay
award, then the agency shall credit appellant for the 8 hours of annual
leave that she used to attend the hearing regarding the overpayment.
5. The agency shall determine whether it properly deducted union dues from
appellant's back pay award and, if so, provide documentation supporting
the deduction.
6. The agency shall determine whether appellant's current pay rate is
correct and, if so, explain how it arrived at that pay rate. The agency
also shall investigate the change in appellant's status from level 6
to level 5 between pay periods 18 and 20, and remedy any error in this
regard.
7. The agency shall determine whether appellant was credited the
appropriate amount of leave and, if so, shall explain how it calculated
the amount of leave she was credited.
8. The agency shall provide an affidavit from the appropriate agency
official indicating whether the notices of violation were posted and, if
so, the location where they were posted and the period of time that they
were posted. The agency must properly post both notices in accordance
with the Commission's Orders if it has not already done so.
9. The agency shall provide appellant with the exact amounts contributed
to her TSP and also shall provide sufficient information to allow a
determination as to the accuracy of those amounts, i.e., how the agency
calculated the amounts contributed.
10. The agency shall insure that appellant had health insurance coverage
from August 16, 1997 onward so long as appellant elected health insurance
benefits through the Federal government's plan. The agency also shall
determine whether appellant was entitled to the restoration of life
insurance coverage following her reinstatement. That is, the agency shall
determine whether appellant had elected life insurance coverage through
the Federal government prior to her removal. If appellant was entitled
to life insurance benefits, the agency must provide them retroactively
and explain why they were not restored previously.
11. The agency shall explain the purpose of the $5.61 check (Vehicle
Hire Subject to Withholding).
12. The agency shall determine whether appellant was entitled to a
uniform allowance following her reinstatement in August 1997 and, if so,
whether she received it. If appellant was entitled to such an allowance,
the agency must provide it retroactively if it has not already done so.
13. The agency must remove from appellant's records any letters of
termination or notices of personnel action in this regard. The agency
shall provide an affidavit from an appropriate agency official in this
regard.
14. The agency shall determine whether there were errors in any of its
"Notice of Actions" and, if so, correct the errors. In making this
determination, the agency shall consult with appellant to identify the
nature of the errors.
15. The agency shall designate an individual as a "Point of Contact"
as explained in the text of this decision.
16. Appellant's attorney is entitled to reasonable fees and costs in
relation to the filing of this petition for enforcement. The attorney
as also entitled to reasonable fees and costs, to the extent that he has
not been so paid, for efforts expended in resolving the agency's failure
to comply with the Commission's Orders and for any work done in relation
to the instant Order. The attorney shall submit a verified statement of
fees to the agency - not to the Equal Employment Opportunity Commission,
Office of Federal Operations - within 30 days of the completion of all
ordered corrective action by the agency.
The agency must submit to the Compliance Officer the results of its
determinations and copies of all documents provided to appellant.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0595)
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 appellant. If the agency does not comply with the Commission's
order, the appellant may petition the Commission for enforcement of
the order. 29 C.F.R. �1614.503 (a). The appellant 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. �� 1614.408, 1614.409, and 1614.503 (g). Alternatively,
the appellant 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. �� 1614.408 and 1614.409. 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) (Supp. V 1993). If the
appellant files a civil action, the administrative processing of the
complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. �1614.410.
STATEMENT OF PETITIONER'S RIGHTS
RIGHT TO FILE A CIVIL ACTION (R0993)
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. It is the position of the Commission that 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. You should be aware, however, that courts in some
jurisdictions have interpreted the Civil Rights Act of 1991 in a manner
suggesting that a civil action must be filed WITHIN THIRTY (30) CALENDAR
DAYS from the date that you receive this decision. To ensure that your
civil action is considered timely, you are advised to file it WITHIN
THIRTY (30) CALENDAR DAYS from the date that you receive this decision
or to consult an attorney concerning the applicable time period in the
jurisdiction in which your action would be filed. 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 (Z1092)
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:
June 2, 1999
Date Frances M. Hart
Executive Officer
1 Appellant was entitled to back pay with interest and other benefits due
from December 14, 1992, the date of the first removal, until December
17, 1993, the date of her reinstatement pursuant to the November 1993
Arbitrator's award. Appellant also was entitled to back pay with interest
and other benefits due from May 5, 1994, the date of her second removal,
until the date on which she returned to duty.
2 Appellant's claim for compensatory damages currently is pending before
the Commission in EEOC Appeal No. 01976222. Appellant's claim for
attorney's fees and costs was addressed in EEOC Appeal No. 01972745
(June 18, 1998). Consequently, these matters are not addressed in the
instant case.
3 The back pay worksheets contain some information in this regard.
4 The State noted appellant's assertion that the agency had deducted
the unemployment compensation from her back pay award but found that
she was unable to establish same by substantial and credible evidence.
The State found that she was disqualified from receiving benefits from
5/21/94 to 11/26/94 and demanded $2,563.00 for the overpayment.
5 Appellant also argued that the agency was responsible for her increased
tax liability as a result of the lump sum payments for back pay and
interest. See Kalra v. Dep't of Transportation, EEOC Appeal No. 01924002
(February 25, 1994)(entitlement to compensatory damages should include
consideration of pecuniary losses due to increased tax burden from
lump-sum back pay award). Because appellant raised this issue in her
pending compensatory damages case (EEOC Appeal No. 01976222), the issue
is properly addressed therein.
6 Appellant noted that different agency documents also showed differing
amounts credited to account.