04a00004
08-23-2000
Tracy Usry, Petitioner, v. Donna E. Shalala, Secretary, Department of Health and Human Services, Agency.
Tracy Usry v. Department of Health and Human Services
04A00004
August 23, 2000
.
Tracy Usry,
Petitioner,
v.
Donna E. Shalala,
Secretary,
Department of Health and Human Services,
Agency.
Petition No. 04A00004
Agency No. FDA08295
DECISION
On November 18, 1999, Tracy Usry (petitioner) filed a Petition for
Enforcement of the Order set forth in Usry v. Department of Health and
Human Services, EEOC Appeal No. 01982615 (May 4, 1999). In the Order,
the Commission directed the agency to redress petitioner following
a finding that agency officials discriminated against him based on a
perceived disability in violation of Section 501 of the Rehabilitation
Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.<1>
This petition for enforcement is accepted pursuant to the provisions of
29 C.F.R. � 1614.503.
ISSUE PRESENTED
The issue presented is whether the agency has complied with the
Commission's order to provide petitioner with back pay and benefits,
with interest.
BACKGROUND
The decision in EEOC Appeal No. 01982615 found that petitioner was
discriminated against on the basis of a perceived disability when
the agency rescinded its employment offer for a Criminal Investigator
position.
The above decision ordered the agency, in relevant part, to provide
petitioner back pay, interest, and all other benefits 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 petitioner 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.
Thereafter, in a letter dated June 28, 1999, petitioner advised the
agency that he did not wish to be placed in the position in question.
The agency determined that the back pay period was from October 16,
1994 to June 29, 1999. The parties do not contest the length of the
back pay period.
The agency found that petitioner's retroactive gross back pay totaled
$124,488.13, including annual leave, and that the interest due on this
amount was $25,427.73. The agency then made the required deductions
and issued a check to petitioner in the amount of $107,266.62.
In his petition for enforcement, petitioner argues that the agency
calculated the interest incorrectly and that the agency owes him
$203,078.05 in unpaid interest. In his petition, petitioner refers to
a January 11, 2000 letter written to the agency as detailing the correct
interest calculation. In that letter petitioner 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.
He 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. As the agency had
already paid him $124,488.19, he requested that the additional $203,078.05
be forwarded.
In response to the petition for enforcement, the agency argues 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 for that purpose, as ordered by
this Commission. The agency requests that the Commission find it to
be in substantial compliance with the order.
FINDINGS AND ANALYSIS
After a careful review of the record, we find that the agency appears
to have based its interest calculation on 5 C.F.R. �� 550.806(a)-(h),
as ordered. Moreover, petitioner's explanation of how he arrived at
the figure of $203,078.05 is conclusory and does little to establish
that the agency did not fully implement the Commission's order.
Notwithstanding the above, we are troubled by the agency's failure
to provide a clear written explanation as to how it arrived at the
interest amount. The list of numbers, interest rates and dates provided
by the agency, apparently in lieu of a written explanation, is difficult
to interpret. For example, while the list appears to note the amount
owed petitioner for each pay period, beginning on November 8, 1994<2>,
along with the daily interest rate, there is nothing to indicate that the
interest calculated was added to the amount owed. Rather, pay period
dates are listed with a dollar amount and a notation of what the daily
interest rate was, followed by the next pay period and the same dollar
amount, changing occasionally, as follows:
DATE $ AMOUNT DUE # OF DAYS DAILY INTEREST
OR OWED RATE
11 8 1994 $816.60 14 .000219178
11 22 1994 $816.60 14 .000219178
....
1 31 1995 $842.81 14 .000219178
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. Accordingly, the agency shall comply with the order below.
CONCLUSION
Based on a review of the record, and for the foregoing reasons, the
Commission grants the Petition for Enforcement of the order in Usry
v. Department of Health and Human Services, EEOC Appeal No. 01982615
(May 4, 1999). The agency shall comply with the prior order by taking
the actions set forth in the order below.
ORDER
1. 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. Any codes used in
the calculations shall be explained and identified so that a reasonably
knowledgeable third party could readily decipher the calculations.
2. If the agency concludes that it miscalculated the interest due,
it shall pay any additional sums owed to petitioner.
3. If the agency pays petitioner additional sums, it shall notify his
attorney of the procedures for filing a petition for attorney's fees
and costs with the agency.
4. The agency shall complete the above actions within sixty (60)
calendar days from the date this decision becomes final. It must submit
a report of compliance to the Compliance Officer, copied to petitioner,
which shall include all the above calculations and photocopies of any
additional payments made to petitioner.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K1199)
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 64
Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter
referred to as 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)(Supp. V 1993). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 64 Fed. Reg. 37,644, 37,659 (1999)
(to be codified and hereinafter referred to as 29 C.F.R. � 1614.409).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION
(R0400)
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
August 23, 2000
__________________
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
______________________________
1 On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply to all
federal sector EEO complaints pending at any stage in the administrative
process. Consequently, the Commission will apply the revised regulations
found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.
2 It is not clear why the calculations began on November 8, 1994, as
opposed to October 16, 1994.