EEOC Petition No. 0420150013
04-27-2017
Chanelle B. v. Dep't of Justice
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Chanelle B,1
Petitioner,
v.
Jeff B. Sessions,
Attorney General,
Department of Justice
(U.S. Marshals Service),
Agency.
Petition No. 0420150013
Petition No. 0420130021
EEOC Appeal No. 0120111958
EEOC Request No. 0520120397
Agency No. USM20080027
DECISION ON A PETITION FOR ENFORCEMENT
On September 24, 2015, Equal Employment Opportunity Commission (EEOC or Commission) docketed a petition for enforcement to examine the enforcement of an Order set forth in EEOC Petition No. 0420130021. The Commission accepts the petition for enforcement pursuant to 29 C.F.R. � 1614.503.
ISSUE
Has the Agency failed to comply with the Commission's Order awarding back pay?
BACKGROUND
Petitioner worked for the Agency as an Aviation Security Officer (ASO) with the Agency's U.S. Marshals Service, Justice Prisoner and Alien Transportation System in Oklahoma City, Oklahoma. She was assigned to guard prisoners as they were transported from one facility to another. Petitioner worked for the Agency from June 2001 until April 11, 2008.
All ASOs worked under a contract that stipulated payment per assignment without any minimum guarantee of work. The contract further provided that the Agency could notify an employee, with 15-days' notice, that the employee would no longer receive any more assignments. In April 2008, the Agency notified Petitioner that her services were no longer needed.
Petitioner filed a discrimination complaint alleging that she was subjected to discrimination on the bases of sex, age, and reprisal.
Procedural History
The Agency issued a decision finding no discrimination. Petitioner appealed to the Commission. In a decision, dated April 3, 2012 (OFO Decision-1, EEOC Appeal No. 0120111958), we affirmed the Agency's decision in part and reversed it in part, finding discrimination regarding her termination.
Having found discrimination, we ordered remedial relief, including the payment of back pay retroactive to the date the Agency terminated Complainant. The Agency was also required to provide Complainant with a detailed statement clarifying how the back pay award was determined, noting that the statement should consist of a clear and concise, "plain language" statement of the methods of calculations used and actual calculations applying formulas and methods.
The Agency requested reconsideration of OFO Decision-1. In an October 3, 2012 decision (OFO-Decision 2, EEOC Request No. 0520120397), we denied the Agency's request to reconsider and incorporated the order in OFO Decision-1.
On March 29, 2013, Complainant filed a petition for enforcement (PFE), pursuant to 29 C.F.R. � 1614.503 alleging, in relevant part, that the Agency failed to comply with our prior order. Petitioner alleged that the Agency failed to calculate her back pay award properly by using the lowest possible pay rate and hours worked by her counterparts, thereby reducing her average payment to a much lower amount than she had earned in previous years.
In a December 17, 2013 decision (OFO Decision-3, EEOC Petition No. 0420130021), we granted Complainant's PFE. We ordered the Agency in PFE-1 to comply with our back pay order in OFO Decision-1 and OFO Decision-2 and the clarification embodied in our decision. Regarding back pay calculations, we found that the Agency's use of the "average" ASO to determine back pay reduced Complainant's back pay award. We found, instead, that the Agency should have used only "similarly situated employees when calculating the average salary." In its calculation, the Agency had to include individuals like Petitioner who had "sought out work consistently and accepted assignments regularly," acknowledging that assignments were made in accordance with a number of factors, including availability of the ASO and whether the ASO had volunteered for work in the past. The Commission also noted that the Agency's documentation revealed that Petitioner ranked 13th out of every 70 available ASOs.
In ordering back pay in OFO Decision-3 on the PFE, the Agency was directed to "take into account the average salary earned by similarly situated Aviation Security Officers during the relevant time period." The Agency was also ordered "to provide Petitioner with a detailed statement clarifying how Petitioner's back pay award was obtained. The statement was to "consist of a clear and concise, 'plain language' statement of the methods of calculations used for the instant matter and actual calculations applying said formulas and methods."
Petitioner has now filed her second PFE and the Agency has opposed it.
CONTENTIONS
Petitioner asserts that she is entitled to back pay in the amount of $163,930.18, the net amount owed to her in back pay and inclusive of interest as of February 11, 2014.2 Petitioner also asserts that the Agency failed to submit a Compliance Report.3
The Agency asserts that it has complied with the Commission's back pay order because in calculating back pay, it took into account the average salary earned, inclusive of any overtime earned, by similarly situated ASOs during the relevant time period as ordered by the Commission. Specifically, the Agency asserts that Petitioner was owed $62,178.28. The Agency also asserts that Petitioner newly increased the amount owed from $100,360.75 to an amount of $163,930.18. The Agency asks that we reject the method used by Petitioner to determine back pay, noting that her method extrapolated only her income prior to the discriminatory termination and did not use ASOs who were similarly situated, as ordered by the Commission. The Agency also asserts that because our prior orders do not provide for calculating back pay based on Petitioner's method of using her prior year earnings, that would create an impermissible substantive change in the Commission's order.
ANALYSIS AND FINDINGS
Initially, we note that the purpose of a back pay award is to restore to Petitioner the income she would have otherwise earned but for the discrimination. See Albemarle Paper Co. v. Moody, 422 U.S. 405 (1975); Davis v. U.S. Postal Serv., EEOC Petition No. 04900010 (Nov. 29, 1990). Back pay should include all forms of compensation and must reflect fluctuations in working time, overtime rates, penalty overtime, Sunday premium and night work, changing rate of pay, transfers, promotions, and privileges of employment to which Petitioner would have been entitled but for the discrimination. See Ulloa v. U.S. Postal Serv., EEOC Petition No. 04A30025 (Aug. 3, 2004) (citing Allen v. Dep't of the Air Force, EEOC Petition No. 04940006 (May 31, 1996)); Perez v. U.S. Postal Service, EEOC Petition No, 04A40041 (Mar. 3, 2005).
Regarding back pay, the record contains a January 14, 2014 letter from the Agency to Petitioner, through counsel, following our issuance of OFO Decision-3 in December 2013. The Agency stated in the letter that it had calculated the amount due to Complainant as $62,178.28, inclusive of interest. The letter explains that the total amount of back pay due Complainant was $87,894.53, which would have included the amount of $25,716.25 previously paid ($62,178.28 + $25,716. 25 = $87,894.53).
The January 14, 2014 letter also explained that Petitioner ranked 13th out of over 70 ASOs in terms of pay and as recognized by the Commission in OFO Decision-3. The Agency stated that, as a result of the Commission's statement, it construed the prior decision to require that Petitioner be paid similarly among the top 18 percent of its ASOs (13 divided by 70 = 18.57%). The Agency also explained in its letter that our prior decision ordered that it take into account the average salary earned by similarly situated ASOs during the relevant time period.
In a table attached to its January 14, 2014 letter, the Agency set forth the amount of back pay from fiscal years 2008 through 2013 plus interest to obtain a total of $62,178.28. Adding the $25,716.25 previously paid Petitioner, the total amount that would be due to Petitioner was $87,894.53.4
In a January 23, 2014 reply letter to the Agency's January 14 letter, Petitioner stated that she was owed $100,360.75, indicating the Agency's yearly earning calculations from April 2008 to December 2012, totaled $184,377.96. Petitioner acknowledged earned income of $82,848.00 for the years from 2008 through 2012 bringing the total to $101,529.96 ($184,377.96 less $82,248.00 = $101,529.96). Adding $17,411.00 for per diem and six percent interest of $7,136.00 equaled $126,077.00. The $126,077.00 less the $25,716.25 which the Agency previously paid would result in a payment of $100,360.75. The amount owing was subsequently increased to $163,930.18
Petitioner also stated in the reply letter that she was unable to understand the agency's back pay calculations which were not plain to her.
In a January 24, 2014 email copied to Petitioner, the Agency noted that it was unsure why the Agency's explanatory letter to Petitioner was "too difficult to understand."
The record also contains a February 11, 2014 letter from a certified public accounting firm (CPAF) to Petitioner through counsel. The letter disclosed that it was not able to determine exactly how the Agency obtained its annual pay amount from the spreadsheet provided and there was no indication that the average amount taken reflected "individuals who sought out work consistently and accepted assignments regularly." The CPAF explained that the amount did not take into account the Petitioner's overtime hours or per diem amounts that she was normally paid. The CPAF stated that since it could not rely on average pay as proposed by the Agency, it suggested a better method to determine how to make Petitioner whole regarding back pay. The letter contains three tables regarding how back pay, overtime pay, per diem and interest which show specific calculations for each year from 2008 to December 2012.
We agree with the Agency that the method used by Petitioner, i.e., using what her earnings might have been during the relevant time period based on previous earnings, is not the appropriate method to be used as she has urged. We have previously ruled that the Agency use similarly situated employees during the relevant time period.
Although the Agency explained that it used the top 18 percent of ASOs during the relevant time period, it not clear how the Agency arrived at average earnings for each year of the relevant time period or why it used fiscal years 2008 through 2012 as opposed to calendar years. We are also not clear whether by using the top 18 percent, the Agency considered ASOs who "sought out work consistently and accepted assignments regularly" as stated in OFO Decision-3 in Petitioner's first PFE. It also not clear how, or if, per diem was considered or included and, if so, how much. Neither are we clear how mitigation of damages was applied in making the back pay calculation or considering any promotion. Also, although the Agency calculated the total amount owed to Petitioner, the exact amount of interest included is not apparent from the record.
We find, therefore, that the Agency has not fully complied with our prior order (OFO Decision -3) which specifically directed that the Agency provide a clear and concise "plain language" statement of the methods of calculations used in this matter. The Agency has not done so. We note that although the Agency did not file a Compliance Report, it has submitted documents and email to the Compliance Officer regarding the actions taken in this matter and, thus, under the circumstances of this case, we decline to find noncompliance based on this deficiency.5
We are remanding this matter for clarification and explanations concerning back pay, and documentation to support explanations because, from the record as it now exists, we cannot determine the amount of back pay, interest, and other benefits due and whether, for example, the 18 percent includes similarly situated ASOs regarding overtime, per diem, and promotion.
On remand, the Agency must attach and include all appropriate supporting documents and/or statements with an analysis, including but not limited to, explaining clearly how back pay was calculated, including what amounts were deducted and for what periods, how back pay was determined for each year, mitigation adjustments, and benefits applied. An organized, step-by-step analysis in how back pay is determined is appropriate to enable efficiency and efficacy of review by providing clarity to calculations, methods used, and documents submitted.
Consequences of Failure to Comply
We remind the parties that the Commission has "the inherent power to control and prevent abuse of its orders, processes and procedure" and "the Commission can and will impose sanctions for Agency malfeasance." Turner v. Dep't of the Interior, EEOC Petition No. 04980037 (Aug. 5, 1999); see also Byrd v. Dep't of Agriculture, EEOC Petition No. 04980004 (Dec. 12, 1997). EEOC Regulation 29 C.F.R. � 1614.503(e) expressly authorizes the Commission to issue a notice to show cause to the head of a federal agency regarding failure to comply with Commission's orders. Continuing failure to comply with an order of the Commission can also result in this case being certified to the Office of Special Counsel for enforcement action. 29 C.F.R. �1614.503 (f).
CONCLUSION
We GRANT the PFE, in part, regarding the information provided by the Agency in its back pay computations. We REMAND this matter to the Agency to take action consistent with this decision and with the Order below.
ORDER
The Agency is ordered to take the following remedial action:
1. Within sixty (60) days of the date of this decision, Petitioner shall be awarded back pay retroactive to the date her contract was terminated. The Agency shall calculate the back pay and interest owed to Petitioner in accordance with 29 C.F.R. � 1614.501 and consistent with this. In doing so, the Agency shall take into account the average salary earned by similarly situated Aviation Security Officers during the relevant time period who sought out work consistently and accepted assignments regularly. The Agency shall provide Petitioner with a detailed statement clarifying precisely how it arrived at Petitioner's back pay award. The statement shall consist of a clear and concise, "plain language" statement of the methods of calculations used in the instant matter and actual calculations applying said formulas and methods. If there is still a dispute regarding the exact amount of back pay and/or benefits, the Agency shall issue a check to Petitioner for the undisputed amount within thirty (30) days of the date the Agency determines the amount it believes to be due.
2. Petitioner shall cooperate with the Agency's efforts to compute the amount of back pay and benefits due, and shall provide all relevant information requested by the Agency. If there is a dispute regarding the exact amount of back pay and/or benefits, the Agency shall issue a check to Petitioner for the undisputed amount within sixty (60) calendar days of the date the Agency determines the amount it believes to be due. Petitioner may petition for enforcement or clarification of the amount in dispute. The petition for clarification or enforcement must be filed with the Compliance Officer, at the address referenced in the statement entitled "Implementation of the Commission's Decision."
3. The Agency is further directed to submit a report of compliance, as provided in the statement entitled "Implementation of the Commission's Decision" and consistent with this decision. The report shall include supporting documentation of the Agency's calculation of back pay and other benefits due, including evidence that the corrective action has been implemented.
ATTORNEY'S FEES (H0610)
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 complaint 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 (K0610)
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 77960, Washington, DC 20013. 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 (R0610)
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 (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Petitioner's Right to File a Civil Action for the specific time limits).
FOR THE COMMISSION:
______________________________ Carlton M. Hadden's signature
Carlton M. Hadden, Director
Office of Federal Operations
4-27-2017
__________________
Date
1 This case has been randomly assigned a pseudonym which will replace Petitioner's name when the decision is published to non-parties and the Commission's website.
2 The amount requested is also identified in Petitioner's Addendum to Second Request for Enforcement with Update on Amount in Dispute.
3 Petitioner has not raised other claims of non-compliance. We note that she made an assertion that the Agency made its payment of attorney's fees contingent on the resolution of back pay. The claim is not supported by the record and is rejected.
4 The Agency's January 14, 2014 letter to Petitioner reflects that it would process payment of the undisputed amount once it received her authorization for an electronic transfer.
5 Because we are remanding this matter, the Agency must provide a report with adequate and supporting documentation and not piecemeal documentation and emails unaccompanied by any explanatory narrative.
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