01A12110_r
10-18-2002
Tracy E. Usry, Complainant, v. Tommy G. Thompson, Secretary, Department of Health and Human Services, Agency.
Tracy E. Usry v. Department of Health and Human Services
01A12110
October 18, 2002
.
Tracy E. Usry,
Complainant,
v.
Tommy G. Thompson,
Secretary,
Department of Health and Human Services,
Agency.
Appeal No. 01A12110
Agency No. FDA08295
Hearing No. 120-96-5167X
DECISION
Complainant filed an appeal with this Commission from a November 17, 2000
report of compliance issued by the agency in response to a Commission
Order set out in Usry v. Department of Health and Human Services,
Petition No. 04A00004 (August 23, 2000). For the following reasons,
the Commission finds that the agency has complied with the Commission's
Order in Petition No. 04A00004, and that it is also in compliance with the
underlying appellate decision in EEOC Appeal No. 01982615 (May 4, 1999).
The original appellate decision in EEOC Appeal No. 01982615 (May 4,
1999), found that complainant was discriminated against on the basis of
a perceived disability when the agency rescinded its employment offer
for a Criminal Investigator position. That decision ordered the agency,
in relevant part, to provide complainant back pay, interest, and all
other benefits (pursuant to 29 C.F.R. � 1614.501) that he would have
received absent discrimination from the first date that other successful
candidates hired under the same vacancy announcement entered on duty to
the date complainant was placed in the position or declined the agency's
offer to place him in the position. The decision noted that the back
pay, benefits and interest calculation should be computed in the manner
prescribed by 5 C.F.R. � 550.805.
By letter dated June 28, 1999, complainant declined the agency's
offer to place him in the Criminal Investigator position in question.
Usry v. Department of Health and Human Services, Petition No. 04A00004
(August 23, 2000). As a result, the agency determined that the back pay
period was from October 16, 1994 to June 29, 1999, a period not contested
by complainant. Id. The agency found that complainant's retroactive
gross back pay totaled $124,488.13, including annual leave, and that the
interest due on this amount was $25,427.73. Id. The agency then made
the required standard deductions and issued a check to complainant in
the amount of $107,266.62. Id.
In his November 1999 petition for enforcement, complainant argued that the
agency calculated the interest incorrectly on his back pay and that the
agency owed him $203,078.05 in unpaid interest. Id. In his petition,
complainant argued that �the agency's interest calculation was based on
simple interest and that if the agency followed the statutorily mandated
interest calculation, compounding interest daily, it would have arrived
at the figure of $298,970.20.� Id. Complainant then argued that annual
leave in the amount of $28,596.04 should be added to this amount for a
total of $327,566.24. Id. As the agency had already paid complainant
$124,488.19, complainant requested an additional $203,078.05. Id.
In response to the petition for enforcement, the agency argued that
it calculated the interest due in accordance with the provisions of
Sections 550.806(a)-(h) of the Code of Federal Regulations, using software
provided by the Office of Personnel Management (OPM) for that purpose,
as ordered by this Commission. Id.
The Commission found in Usry, Petition No. 04A00004, that the agency
appeared to have based its interest calculation on 5 C.F.R. ��
550.806(a)-(h), but that a conclusive determination could not be made
based on the information provided by the agency. The Commission stated,
�Although it may be the case that the agency's calculation is correct,
we are unable to make that determination based on the information
provided.� Id. The Commission granted the petition for enforcement,
and, in pertinent part, ordered the agency to take the following actions:
The agency shall submit a report of compliance to the Commission, with
a copy to petitioner, that breaks down how it arrived at its interest
figure. Specifically, the calculations shall, for the entire back pay
period, be broken down on a biweekly or monthly basis to correspond with
the payments petitioner would have received had he been in the position
in question. The calculations shall explicitly identify the interest
due petitioner during each period (as interest begins to accrue on the
dates on which petitioner would have received the pay, allowances, and
differentials had he received the position in question, according to 5
C.F.R � 550.806(a)). These figures shall then be subtotaled on a yearly
basis, and totaled for the entire back pay period.
On November 17, 2000, the agency submitted the instantly appealed
compliance report to the Commission, concluding that it had followed
statutory requirements and that no additional interest payment was
owed. In the report, the agency reiterated that it used OPM software
to compute interest, and that the program provided calculations for
the entire period, broken down on a bi-weekly or pay period basis.
The agency further stated that the calculations corresponded with the
payments complainant would have received, minus his outside earnings,
as instructed in 5 C.F.R. � 550.806. With the report, the agency
submitted supporting documents, including a copy of a detailed back pay
interest computation, which added a column to the calculations previously
submitted for �cumulative back pay+ interest� for each bi-weekly pay
period. Finally, the agency also determined that, from its review
and recalculation of the interest, it had actually overpaid interest
(as a result of using an overstated interest rate for two pay periods),
resulting in an overpayment of $251.66 to complainant.
In a letter dated January 25, 2001 and docketed as the instant appeal,
complainant challenged the agency's submission, and asked the Commission
to find that the agency is not in compliance with the �Commission's
Order relating to his complaint.� Complainant asserted that, rather
than compounding interest daily as outlined in 5 C.F.R. � 550.806(e),
the agency compounded interest on a bi-weekly basis. To substantiate
his claim, complainant submitted an accountant's calculations of the
amount complainant should have been paid by the agency if interest had
been compounded correctly. Based on these calculations, complainant
stated that he should have been paid a total of $285,620.19 (before
deductions) instead of $149,644.22 (the amount complainant states was
paid by the agency). Complainant requested the agency be ordered to
pay the sum of $191,381.71. On appeal, complainant also claims that
the agency has failed to compensate him for annual leave and sick leave.
In a June 14, 2001 response to complainant's appeal submissions, the
agency stated that it would �not replicate or duplicate� its November 17,
2000 compliance report. The agency also maintained that complainant
had been paid for the annual leave he would have accumulated had he
been employed as part of the check for the net amount issued to him
on October 6, 1999. Finally, concerning compensation for sick leave,
the agency stated that complainant had not received compensation for the
sick leave he would have earned, because employees are not entitled to
lump sum payment for unused sick leave when they leave government service.
ANALYSIS AND FINDINGS
Upon review, we find that the agency has appropriately used the method
stipulated in 5 C.F.R. � 550.806 to calculate interest on complainant's
back pay award. According to 5 C.F.R. � 550.806(a), interest begins
to accrue on the date or dates on which the employee would have
received the pay, allowances, and differentials if the unjustified or
unwarranted personnel action had not occurred. Thereafter, �[o]n each
day for which interest accrues, the agency shall compound interest by
dividing the applicable interest rate (expressed as a decimal) by 365
(366 in a leap year).� 5 C.F.R. � 550.806(e). While complainant asserts
that the agency used simple interest or compounded interest bi-weekly,
the agency's submission of its detailed back pay interest computation
shows that interest was compounded daily, as specified in 5 C.F.R. �
550.806(e), and was based on the agency's bi-weekly payment schedule,
as dictated by 5 C.F.R. � 550.806(a). Thus, in the instant case, the
agency correctly calculated the interest award based on the dates of
each payroll payment which the complainant would have received but for
the agency's discrimination against him. See Shugars v United States
Postal Service, EEOC Petition No. 04950023 (April 11, 1996).
In contrast, complainant's submitted calculations of interest on
back pay reveal that while complainant compounded interest daily as
specified under 5 C.F.R. � 550.806(e), he did not correctly apply 5
C.F.R. � 550.806(a). Complainant's interest calculations are flawed,
because instead of calculating back pay to begin to accrue interest �on
the date or dates . . . on which the employee would have received the
pay,�(i.e., on a bi-weekly payment basis), see 5 C.F.R. � 550.806(a)(1),
complainant's calculation of back pay incorrectly began to accrue interest
on the date complainant would have earned the pay during the pay period
(i.e., on a daily payment basis (calculated by dividing the pay period
amount by days worked)). Consequently, by virtue of daily compounding
amounts �earned� before they would have been received by complainant,
complainant calculated the larger erroneous interest payment that he
requested from the agency.
We therefore find, apart from the overpayment of interest cited by the
agency and absent a showing or claim of other miscalculation, that by
basing its interest calculation on 5 C.F.R. � 550.806, the agency has
correctly computed the interest on complainant's back pay award.
We also find, after an examination of the record and complainant's claim's
concerning annual leave, that complainant was compensated for annual leave
by the agency as required by the original appellate decision.<1> Although
complainant asserts that the agency subtracted the undisputed $28,596.04
dollar amount of accrued annual leave from the $124,488.19 gross back pay
award, the record indicates that the gross back pay award included annual
leave, and that the dollar amount for annual leave was not deducted from
that total. We note that while the agency's October 6, 1999 specific
written explanation to complainant's attorney regarding back pay and
annual leave calculations did not clearly articulate the relationship of
the annual leave amount to the gross back pay award,<2> agency documents
received by complainant's attorney along with the explanation plainly
indicate that annual leave was included in complainant's gross back pay.
Contrary to complainant's assertions, the record shows that instead of
subtracting the $28,596.04 total for annual leave, the agency simply
added the $25,427.73 interest amount to the $124,488.19 gross back pay
award and then subtracted required deductions. As there is no dispute
over the correct dollar amount for annual leave, we find that the agency
has appropriately compensated complainant for annual leave as ordered.
Finally, with regard to sick leave, we find that complainant is not
entitled to a lump-sum monetary payment for sick leave. See McKinney
v. United States Postal Service, EEOC Petition No. 04980005 (August
5, 1999). The agency therefore correctly determined not to compensate
complainant for the sick leave he would have earned for the period
in question.
Accordingly, we find that the agency has complied with the Commission's
Order in Petition No. 04A00004, and we AFFIRM the agency's November
17, 2000 determination that it is in compliance with the Commission's
underlying Order in EEOC Appeal No. 01982615.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
The Commission may, in its discretion, reconsider the decision in this
case if the complainant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. The appellate decision involved a clearly erroneous interpretation
of material fact or law; or
2. The appellate decision will have a substantial impact on the policies,
practices, or operations of the agency.
Requests to reconsider, with supporting statement or brief, must be filed
with the Office of Federal Operations (OFO) within thirty (30) calendar
days of receipt of this decision or within twenty (20) calendar days of
receipt of another party's timely request for reconsideration. See 29
C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for
29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999). All requests
and arguments must be submitted to the Director, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. In the absence of a legible postmark, the
request to reconsider shall be deemed timely filed if it is received by
mail within five days of the expiration of the applicable filing period.
See 29 C.F.R. � 1614.604. The request or opposition must also include
proof of service on the other party.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely, unless extenuating circumstances
prevented the timely filing of the request. Any supporting documentation
must be submitted with your request for reconsideration. The Commission
will consider requests for reconsideration filed after the deadline only
in very limited circumstances. See 29 C.F.R. � 1614.604(c).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S0900)
You have the right to file a civil action in an appropriate United States
District Court within ninety (90) calendar days from the date that you
receive this decision. If you file a civil action, you must name as
the defendant in the complaint the person who is the official agency head
or department head, identifying that person by his or her full name and
official title. Failure to do so may result in the dismissal of your
case in court. "Agency" or "department" means the national organization,
and not the local office, facility or department in which you work. If you
file a request to reconsider and also file a civil action, filing a civil
action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z1199)
If you decide to file a civil action, and if you do not have or cannot
afford the services of an attorney, you may request that the Court appoint
an attorney to represent you and that the Court permit you to file the
action without payment of fees, costs, or other security. See Title VII
of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.;
the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c).
The grant or denial of the request is within the sole discretion of
the Court. Filing a request for an attorney does not extend your time
in which to file a civil action. Both the request and the civil action
must be filed within the time limits as stated in the paragraph above
("Right to File A Civil Action").
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
October 18, 2002
__________________
Date
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
__________________
Date
______________________________
1The original appellate decision ordered the agency, in relevant part,
to provide complainant back pay, interest, and all other benefits
due complainant pursuant to 29 C.F.R. � 1614.501. Usry, EEOC Appeal
No. 01982615. The Commission has previously determined that benefits
include the equivalent cash value of annual leave where the leave
cannot be reinstated or an offer is declined. See Pacheco v United
States Postal Service, EEOC Petition No. 04990043 (August 14, 2002);
Harrington v. Tennessee Valley Authority, EEOC Petition No. 04900007
(December 27, 1990).
2At the end of its explanation under the category of �Annual Leave,� the
agency stated that �[s]ince $28,596.04 of [complainant's] gross back pay
takes the form of compensation for annual leave, [complainant] is entitled
to be compensated an additional $95,892.15 in the form of base earnings.�