Welford Burton, Petitioner,v.Linda M. Springer, Director, Office of Personnel Management, Agency.

Equal Employment Opportunity CommissionFeb 2, 2007
0420050029 (E.E.O.C. Feb. 2, 2007)

0420050029

02-02-2007

Welford Burton, Petitioner, v. Linda M. Springer, Director, Office of Personnel Management, Agency.


Welford Burton,

Petitioner,

v.

Linda M. Springer,

Director,

Office of Personnel Management,

Agency.

Petition No. 04200500291

Request No. 0520050122 (formerly 05A50122)

Agency No. 00-26

DECISION ON A PETITION FOR ENFORCEMENT

On July 11, 2005, the Equal Employment Opportunity Commission (EEOC or

Commission) docketed a petition for enforcement to examine the agency's

enforcement of an order set forth in Welford Burton v. Office of Personnel

Management, Request No. 0520050122 (December 21, 2004). This petition

for enforcement is accepted by the Commission pursuant to 29 C.F.R. �

1614.503. Petitioner has alleged that the agency failed to fully comply

with the Commission's order in that while he was on the agency's shared

leave program, the agency incorrectly paid him at the GS-9 rate.

BACKGROUND

Petitioner filed a complaint in which he alleged that the agency

discriminated against him on the bases of his race (African-American),

sex (male), a perceived disability, and age (49 at the relevant time)

in violation of Title VII of the Civil Rights Act of 1964 (Title VII),

as amended, 42 U.S.C. � 2000e et seq., Section 501 of the Rehabilitation

Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.,

and the Age Discrimination in Employment Act of 1967 (ADEA), as amended,

29 U.S.C. � 621 et seq. After a hearing, an EEOC Administrative Judge

(AJ) determined that the agency discriminated against petitioner when he

was not selected for a paralegal position on the basis of his gender.

As make whole relief, the AJ ordered the agency to retroactively

place petitioner in the paralegal position with back pay, interest,

non-pecuniary compensatory damages and attorney's fees. The AJ also

ordered the agency to promote petitioner within one year of his placement

in the paralegal position. The agency implemented the AJ's order stating

that it conditionally offered him placement in the position of Paralegal

Specialist provided that he submit medical confirmation that he was able

to attend training and to perform the duties of the job.

Petitioner filed an appeal contesting the agency's conditional offer,

arguing that this amounted to non-compliance with the AJ's order for

make whole relief. The Commission agreed that the AJ's order did not

permit the agency to make a conditional offer of the position and to do

so was not compliance with the Commission's order. See Burton v. Office

of Personnel Management, EEOC Appeal No. 01A43369 (August 26, 2004).

The Commission ordered the agency to unconditionally offer petitioner the

paralegal position retroactive to the date on which the first of three

selectees was placed, along with retroactive back pay, interest and

other benefits due. The Commission also affirmed the AJ's order that

petitioner be promoted to the GS-11 level one year after the effective

date of his placement in the position.

The matter was assigned to a Compliance Officer and docketed as

Compliance No. 0620050347 on December 21, 2004. On July 11, 2005,

petitioner submitted the instant petition for enforcement. Petitioner

contends that during the time he was enrolled in the agency's leave share

program, the leave he received was paid at the GS-9 level instead of the

GS-11 level. Petitioner argues that the agency's action did not comply

with the Commission's order and he is owed the difference in pay he did

not receive.

The agency opposed petitioner's petition for enforcement arguing that

because petitioner was not able to work during this particular time

period, back pay was not owed. Additionally, the agency contends that

from August 9, 2003 to March 1, 2004, the agency had already paid him for

the sick and annual leave he would have accrued had the discrimination

not occurred. Apparently, the agency interpreted petitioner's arguments

for additional back pay as a request for payment of the monetary value

of shared leave similar to the monetary value of other leave paid to

petitioner. The agency argued this would amount to a double payment. The

agency did not directly address petitioner's argument that his leave

should have been paid at the GS-11 level and not the GS-9 level except

to say that it was not required to violate existing agency policies when

carrying out back pay remedies. In any event, the agency contends that

it is in full compliance with the Commission's back pay award and that

the petition for enforcement should be denied.

ANALYSIS AND FINDINGS

Under the Commission's regulations, when the Commission finds that an

employee of an agency was discriminated against, the agency shall provide

relief including but not limited to non-discriminatory placement with back

pay computed in the manner prescribed by 5 C.F.R. � 550.805. 29 C.F.R. �

1614.501(c)(1). Under back pay regulations, included in the amount of

back pay, the agency must also grant any sick and annual leave for a

period of incapacitation if it was the result of illness or injury. 5

C.F.R. � 550.805.

Applying these regulations, we view petitioner's petition for enforcement

as simply a request to enforce the Commission's order that he be

compensated in his new position as a paralegal including his pay during

his participation in the leave share program. The record reflects that

under the Commission's order, the agency was required to retroactively

place petitioner in the position of paralegal, GS-9, and then, because

the job was a career ladder position, the agency was ordered to promote

him to the GS-11 level within a year of his placement. According to the

agency's selection certificate, the selection took place on or about

March 1, 2000 such that petitioner's career ladder promotion to GS-11

should have occurred within one year or by March 1, 2001.

Petitioner relates, and the agency does not dispute, that because of an

illness and the exhaustion of available leave, he participated in the

agency's leave share program from August 9, 2003 through March 1, 2004.

We find that the agency did not comply with our order for relief and

that it improperly compensated petitioner's leave at the GS-9 level,

instead of at the GS-11 rate of pay. The agency offers no explanation

or authority for paying petitioner at a lower rate of pay during a

time when his promotion to the GS-11 level should have been in effect.

Despite the agency's suggestion, this would not result in a double

payment to petitioner or in any violation of agency policy. Rather,

the agency is merely paying petitioner's regular salary in the form of

leave through the leave share program.

CONCLUSION

Therefore, based on the foregoing analysis, we grant the petition for

enforcement and direct the agency to take additional action as outlined

below. Petitioner is likewise entitled to additional attorney's fees for

work done in connection with this petition for enforcement. See Allen

v. Department of the Interior, EEOC Request No.05970352 (August 11,

1999).

ORDER

Within 30 days of the date of receipt of this decision the agency will

take the following actions:

1. The agency will calculate and pay petitioner the difference between

the rate of pay it actually paid him and the rate of pay at the GS-11

level for the time period August 9, 2003 to March 1, 2004;

2. 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 petition. 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

petitioner. If the agency does not comply with the Commission's order,

the petitioner may petition the Commission for enforcement of the order.

29 C.F.R. � 1614.503(a). The petitioner 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 petitioner 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 petitioner 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 (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

_ 2-2-07_________________

Date

1 Due to a new data base system, this case has been re-designated with

a new appeal number.

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0420050029

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P. O. Box 19848

Washington, D.C. 20036

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0420050029