01A11753
08-01-2002
Joseph W. Milder, Petitioner, v. Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.
Joseph W. Milder v. Department of Veteran Affairs
01A11753
August 1, 2002
.
Joseph W. Milder,
Petitioner,
v.
Anthony J. Principi,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01A11753
Petition No. 04990038
Appeal No. 01971724
Agency No. 95-1671
Hearing No. 260-96-8043X
DECISION
Complainant filed a timely appeal of a final agency decision (FAD)
issued by the agency in response to a Commission Order set out in Joseph
W. Milder v. Department of Veteran Affairs, Petition No. 04990038 (August
23, 2000). The appeal is accepted pursuant to 29 C.F.R. � 1614.405.
For the following reasons, the Commission Affirms, in part and Modifies,
in part the agency's FAD.
The original appellate decision found complainant to be a victim of
reprisal when the agency: (1) denied complainant advance sick leave in
November, 1992; (2) issued complainant a poor mid-term progress review;
and (3) failed to select complainant for the position of Police Officer
GS-5 on May 11, 1995. The original appellate decision directed the
agency to: (1) retroactively promote complainant to the position of
Police Officer GS-5, or a substantially similar position, retroactive
to May 11, 1995; (2) determine the appropriate amount of back pay,
interest, and other benefits due complainant; (3) conduct a supplemental
investigation into what compensatory damages complainant may be entitled
to as a result of the reprisal discrimination; (4) award attorney's
fees; and (5) take corrective, curative and preventive action to ensure
that reprisal discrimination does not recur, including training to the
responsible management officials.
The record shows that complainant was placed into a GS-5 Police
Officer position retroactive to May 11, 1995, and received a subsequent
promotion that the agency asserts would have been due him on May 12, 1996.
In addition, the record shows that complainant has received a net back-pay
award of $59,098.48.<1> The agency also asserted that complainant's
leave balances have all been credited. The record shows that the agency
conducted a thorough supplemental investigation pertaining to the issues
of compensatory damages and awarded attorney's fees to complainant.
The responsible management official has received remedial training on
EEO anti-retaliation laws and regulations and has voluntarily accepted
a position change from a supervisory role to a non-supervisory role.
In his Petition for Enforcement, complainant argued that the agency
failed to comply with the appellate decision in the following manner:
(1) the agency failed to place petitioner in the position of Senior
Officer; (2) the agency failed to promote complainant to the GS-6,
step 6 in June, 1995; (3) the back pay calculations should have been
retroactive to November, 1993 rather than May, 1995; (4) the back pay
calculations were 64 hours short in the first pay period; (5) the back pay
calculations were short overtime pay; (6) the interest calculations were
inaccurate; (7) the back pay calculations improperly deducted life/health
benefits premium; (8) the agency improperly required complainant to remit
approximately $20,000.00 in order to re-credit his retirement account;
(9) the agency improperly placed complainant in the CSRS - offset
program rather than placing him back into the CSRS retirement program;
(10) the agency failed to provide complainant with a clothing allowance
of approximately $200 for the first year; (11) the agency improperly
deducted complainant's interim �moonlighting� earnings from its back pay
calculations; (12) the agency failed to restore complainant's annual
leave that he was forced to use when denied advanced sick leave; (13)
the agency failed to award any compensatory damages; and (14) the agency
failed to ensure that reprisal did not recur.
The decision in Joseph W. Milder v. Department of Veteran Affairs,
Petition No. 04990038 (August 23, 2000) found that the agency complied
with its order with respect to Issues 3, 12, 13, 14. The remaining
issues were remanded to the agency for supplemental information because
the agency failed to properly support its conclusions.
The agency conducted a supplemental investigation and issued a new FAD
on December 11, 2000. On January 12, 2001, complainant filed this appeal.
ANALYSIS AND FINDINGS
In accordance with 29 C.F.R. � 1614.503(c), the Commission may issue a
clarification of a prior decision. A clarification cannot change the
result of a prior decision or enlarge or diminish the relief ordered,
but may further explain the meaning or intent of the prior decision.
The Senior Officer Title
Complainant previously argued that he is entitled to the title of
�Senior Officer� since he was most senior in the department when he left
in 1993. While the Commission did not find discrimination with respect
to petitioner's departure from the police department, we previously found
the record unclear as to whether, given petitioner's prior experience,
he would have received the title of Senior Office, absent discrimination,
with respect to the non-selection at issue herein. Accordingly, we
remanded this issue back to the agency to address that question.
The agency explained in its December 11, 2000 FAD that there is no such
title as �Senior Officer.� In response, complainant argues that he does
not seek to being placed in a position titled �Senior Officer� but that
he be restored to the most senior officer in the police department at the
medical center. According to complainant, but for the discrimination,
he would be the officer with the most seniority. Complainant further
explains that the agency uses seniority to make decisions regarding
bumping rights, scheduling leave, shift work preference, etc.
In accordance with our January 15, 1999 decision, the agency was required
to �determine the appropriate amount of back pay, interest, and other
benefits due complainant.� Clearly, seniority rights are a benefit of
employment that complainant was deprived of because of the discrimination.
Accordingly, the agency must restore complainant to the seniority he
would hold today had he been placed in the Police Officer GS-5 position
on May 11, 1995.
Grade and Step Level
Complainant argues that he should have been promoted to the GS-6 level in
May, 1995 since he was qualified by the agency as a GS-6 and the Police
Officer position had a target of GS-5/GS-6. Since complainant failed
to make these arguments in the initial appeal, the Commission's order
that complainant be placed in a GS-5 level Police Officer position or
a substantially equivalent position cannot be disputed herein.
Complainant also argues that there was a department-wide promotion
of Police Officers to the GS-06 level in February 1995. Accordingly,
complainant argues that he is entitled to be promoted
to the GS-6 level retroactive to May 1995. Upon review of the record,
we find that an office-wide promotion did not take place as argued
by complainant. Accordingly, we find that he was not entitled to a
promotion to the GS-6 level in May 1995. Moreover, as stated earlier,
since this argument was not raised in complainant's initial appeal,
it is too late to raise it herein.<2>
However, we find that the record indicates that complainant was entitled
to a non-competitive career ladder promotion to the GS-6 level after one
year of fully successful performance in the GS-5 position. Accordingly,
complainant should have been promoted to the GS-6 level in May 1996.
Accordingly, we find that complainant is entitled to back pay which
includes a retroactive promotion to the GS-6 level as of May, 1996.
The record indicates that complainant was actually promoted to the GS-6
level on May 12, 1996. Accordingly, his back pay should have already
reflected this promotion. However, to the extent that complainant's
back pay did not include a GS-6 level pay as of May 12, 1996, we order
the agency to recalculate its back pay award to reflect a promotion to
the GS-6 level as of May 12, 1996.
3. 64 Hours of Unpaid Back Pay
With respect to the first pay period where complainant was paid only
16 hours (rather than 80 hours), the agency has clarified that the day
the retroactive back pay commenced fell in the middle of a pay period.
Accordingly, we find that the hours of back pay were correct.
4. 15 Hours of Overtime Each Pay Period
Complainant also claimed that he was entitled to 15 hours of overtime
for each week, since, during the period from May, 1995 to the present,
other Police Officers were allegedly averaging over 15 hours of overtime
each week. Since there was no documentation of such overtime usage,
this issue was remanded to the agency so that it could supplement the
record and address this issue. In its FAD, the agency explained that
during the period May 1995 through March 1999 there were 2,527.5 hours
of approved overtime, which resulted in an average of 8 hours of overtime
per pay period for each Police Officer.
However, the agency disapproved complainant's claim for overtime.
The agency argues that because complainant did not work during this
period, the agency could not determine the amount of overtime complainant
would have worked. The agency further asserts that if complainant was
working, there would have been an increase in the total staffing of the
department by one full-time police officer. Accordingly, it is likely
that overtime would not have been necessary.
Complainant argues that if the discrimination had not occurred he
would have been hired instead of the selectee. Therefore, the number
of police officers on staff would be exactly the same. In addition,
complainant asserts that he should received the exact amount of overtime
that the selectee received. Since the evidence shows that all police
officers received an average of 8 hours of overtime per pay period,
we find that complainant should be entitled to the same. See Sanders
v. United States Postal Service, EEOC Petition No. 04990018 (April 23,
2001); Sanchez v. United States Postal Service, EEOC Appeal No. 01975022
(October 28, 1999).
5. Interest Calculations
Complainant claimed that the back pay interest was improperly calculated.
The Commission previously found it unclear from the record how the
agency calculated the interest on its back pay award. While the agency
provided an itemization, it failed to show the computation of compounded
interest in accordance with 5 C.F.R. � 550.806. Accordingly, this issue
was remanded to the agency to show how its computation of interest meets
all the requirements of 5 C.F.R. � 550.806.
We find that the FAD failed to comply with our order in providing a
proper computation of compounded interest in accordance with 5 C.F.R.
� 550.806. However, since the award of back pay must be recalculated,
at least, to include an overtime award, the agency shall have a second
opportunity to comply with our order.
6. Life/Health Benefits Premiums
Complainant argues that the agency improperly deducted life/health
benefits premiums from his back pay calculations. We previously ordered
the agency to address complainant's unrebutted allegation that the
agency has improperly deducted life/health insurance premiums in the
amount of $356.72.
In its FAD, the agency states that it deducted a sum of $346.81 for life
insurance premiums during the back pay period. According to the agency,
complainant had elected Basic Life Insurance during his employment.
The agency further asserts that it advised complainant that if he did
not want life insurance coverage that he could have waived the insurance
and the deductions would have been refunded. However, the agency has
failed to present any documentary evidence of this. Complainant asserts
that he was never told that he could waive life insurance coverage and
he was not covered during the back pay period. Complainant provides
documentation that his life insurance coverage was effective on March
14, 1999. We find that the preponderance of the evidence shows that
the agency improperly deducted life insurance premiums in the amount of
$346.81 for a period of time that complainant was not covered by life
insurance. Accordingly, the agency shall not deduct any life insurance
premiums from complainant's award of back pay.<3>
7. Retirement Benefits
Complainant previously argued that he should be reimbursed approximately
$20,000.00 of his retirement funds that he was forced to use when he left
the agency in 1993. However, the Commission rejected this argument since
we did not find discrimination with respect to complainant's departure
from the agency in 1993. However, the Commission found that the agency
was still required to restore complainant's retirement contributions
related to the back pay period of May 11, 1995 through March 15, 1999.
While it appears from complainant's submissions that the agency deducted
complainant's own contributions from his back pay, it is still unclear
whether the agency provided complainant with applicable matching
contributions for the back pay period. The Commission has previously
held that, to the extent a complainant would have received government
contributions to a retirement fund as a component of his salary, he is
entitled to have his retirement benefits adjusted as part of his back pay
award, including receiving interest which the account would have earned
during the relevant period. See Korchnak v. United States Postal Service,
EEOC Petition No. 04960028 (December 19, 1996); Wrigley v. United States
Postal Service, EEOC Petition No. 04950005 (February 15, 1996). To the
extent that the agency has not done so, it must provide complainant with
the applicable matching contributions for the back pay period.
In addition, complainant contends that the agency deducted more than
it should have. Complainant contends that the current retirement
documents show that he should have reimbursed $20,311.04 into his
retirement account rather than $23,600.00. Since the agency has failed
to provide the documentary evidence supporting the correct amount we
must assume complainant's figures are accurate.<4> Accordingly, the
agency shall only deduct $20,311.04 for repayment into complainant's
retirement fund. Any additional funds previously deducted shall be
reimbursed to complainant.
Complainant also argued that he should be placed back in the Civil Service
Retirement System (CSRS) rather than in the CSRS - Offset Program (OP)
which he has currently been placed. The agency explained in its FAD
that according to the agency's retirement handbook, CSRS employees
who were previously covered will remain under CSRS if they return to
a CSRS covered position within 365 days of the separation from a CSRS
position. Since complainant was reinstated beyond the 365-day time-frame,
complainant was placed in the OP. Since complainant was separated from
employment for over 365 days not related to the discrimination when he
left his position in 1993, we find that he was properly placed in the OP,
rather than the CSRS.
8. Clothing Allowance
Complainant claimed that he is entitled to a clothing allowance for the
first year of his employment in the amount of approximately $200.00.
The agency argued that complainant received his clothing allowance.
While there is an indication in the record that complainant was previously
provided a �uniform allowance� of $390.66 (plus interest), the record
was unclear as to whether he is also entitled to an additional clothing
allowance when he was reinstated.
In its FAD, the agency asserts that complainant received three
different clothing allowances over the years ($125.00 on September 2,
1981; $301.11 on September 14, 1984; and $400.00 on May 11, 1995).
However, the agency provides no proof of payment or explanation for the
multiple payments. Nor does the agency provide documentation regarding
the policy regarding uniform or clothing allowances for police officers.
The agency's present assertions indicate that a clothing allowance is not
a one-time-only benefit. Since there is no other evidence in support
of the agency's assertion that he is not entitled to any additional
clothing allowances, we must conclude that complainant should have
received a clothing allowance when he was reinstated. Accordingly,
the agency must include a payment of $200.00 in complainant's back pay
award to reimburse him for a clothing allowance.<5>
9. Interim Moonlighting Earnings
Complainant initially argued that the agency improperly deducted money
he earned during �moonlighting� hours from his back pay calculation.
Complainant stated that even had he been employed full-time with the
agency, he still could have earned such wages.<6>
In its FAD, the agency states that the agency has no way to reasonably
evaluate complainant's ability to moonlight. Furthermore, the agency
states that because police officers work rotating shifts, it cannot be
presumed that complainant would have had the ability to moonlight during
the back pay period.
In response, complainant argues that while it is true that he worked
a rotating schedule, it has been the policy of the agency to allow
police officers to trade shifts in order to accommodate working other
jobs, going to school, and making arrangements for babysitters, etc.
Complainant also asserts that some officers have been permitted to work
one shift without rotating for up to six months at a time. Complainant
contends that this policy was going on during the back pay period and is
still going on today. Complainant asserts that the agency could have
checked the work schedules from 1995 to the present to see how many
different police officers have traded or worked only one shift for an
extended duration in order to determine if complainant could have held
both the supplemental job and the police officer position.
The Commission previously requested supplemental evidence in support of
the agency's position that complainant could not have worked both jobs.
Instead of providing any evidence in support of its position that
complainant's earnings during the back pay period could not have been
earned if he received the police officer position in May 1995, it now
requests additional information from complainant. If the agency needed
additional information from complainant it had a responsibility to request
such information upon receipt of the initial decision awarding back pay
on January 15, 1999. The agency even had a second opportunity to request
additional information from complainant following our order dated August
23, 2000 where we remanded this issue back to the agency for supporting
documentation. Based upon the present record, we find that the agency has
failed to prove that complainant could not have worked both jobs during
the back pay period. Accordingly, the agency is not permitted to deduct
any earnings during the back pay period from complainant's back pay award.
Accordingly, and for the reasons stated herein, the Commission AFFIRMS
the FAD, in part, and MODIFIES, in part. The Commission therefore Orders
the agency to comply with the Order in EEOC Appeal No. 01971724 by taking
the actions set forth in the Order below.
ORDER
To the extent that the agency has not done so already, the agency is
ORDERED to take the following remedial action:
1. Within thirty (30) calendar days of the date this decision becomes
final, the agency is directed to promote complainant to the position of
Police Officer GS-5, or a substantially similar position. Such promotion
shall be retroactive to May 11, 1995 (the date C1 was selected over
complainant).
2. The agency shall determine the appropriate amount of back pay,
interest<7> and other benefits due complainant, pursuant to 29
C.F.R. �1614.501, no later than sixty (60) calendar days after the
date this decision becomes final. If complainant declines to accept a
promotion with the agency, the back pay period shall end on the date he
declines the offer of promotion. Back pay shall included, but is not
limited to: (a) restoring complainant's seniority to the level he would
have achieved if he was selected to the Police Office position on May
11, 1995; (b) the computation of back pay shall reflect a career ladder
promotion to GS-6, step 6 effective May 12, 1996; (c) the computation of
back pay shall include eight hours of overtime per pay period throughout
the back pay period; (d) restoration of any government contributions to
complainant's retirement fund that he would have been entitled to had
he received the position of Police Office GS-5 on May 11, 1995; and (e)
a clothing allowance of $200.00. In addition, the agency shall only
deduct $20,311.04 out of complainant's back pay award to reimburse
his retirement fund. Any amounts deducted over $20,311.04 shall be
reimbursed to complainant. There shall be no deduction of $356.72
for life insurance during the back pay period. Any amounts previously
received from complainant shall be reimbursed. The agency shall not
reduce its back pay award to account for any of complainant's earnings
during the back pay period.
Complainant shall cooperate in 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
the complainant for the undisputed amount within sixty (60) calendar
days of the date the agency determines the amount it believes to be due.
Complainant 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 shall conduct a supplemental investigation into what
compensatory damages complainant may be entitled to as a result of the
reprisal discrimination.
4. Complainant shall be awarded attorneys' fees as set forth below.<8>
5. The agency shall take corrective, curative and preventive action
to ensure that reprisal discrimination does not recur, including but
not limited to providing training to the responsible official(s) at the
Department of Veteran Affairs, Medical Center, Iowa City, Iowa facility in
the law against employment discrimination. Within thirty (30) calendar
days of the date the training is completed, the agency shall submit to
the compliance officer appropriate documentation evidencing completion
of such training.
6. The agency is further directed to submit a report of compliance,
as provided in the statement entitled "Implementation of the Commission's
Decision." The report shall include supporting documentation of the
agency's calculation of back pay and other benefits due complainant,
including evidence that the corrective action has been implemented.
POSTING ORDER (G0900)
The agency is ordered to post at its Medical Center, Iowa City, Iowa
facility copies of the attached notice. Copies of the notice, after
being signed by the agency's duly authorized representative, shall
be posted by the agency within thirty (30) calendar days of the date
this decision becomes final, and shall remain posted for sixty (60)
consecutive days, in conspicuous places, including all places where
notices to employees are customarily posted. The agency shall take
reasonable steps to ensure that said notices are not altered, defaced,
or covered by any other material. The original signed notice is to be
submitted to the Compliance Officer at the address cited in the paragraph
entitled "Implementation of the Commission's Decision," within ten (10)
calendar days of the expiration of the posting period.
ATTORNEY'S FEES (H0900)
If complainant 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 (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 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 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)
(1994 & Supp. IV 1999). If the complainant 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.
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 (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
August 1, 2002
__________________
Date
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Washington, D.C. 20507
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
An Agency of the United States Government
This Notice is posted pursuant to an Order by the United States Equal
Employment Opportunity Commission dated which found that
a violation of Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. �2000e et seq. has occurred at this facility.
Federal law requires that there be no discrimination against any
employee or applicant for employment because of the person's RACE,
COLOR, RELIGION, SEX, NATIONAL ORIGIN, AGE, or DISABILITY with respect
to hiring, firing, promotion, compensation, or other terms, conditions
or privileges of employment.
The Department of Veteran Affairs Medical Center, Iowa City, Iowa,
(hereinafter �VA�), supports and will comply with such Federal law and
will not take action against individuals because they have exercised
their rights under law.
The VA has been found to have discriminated on the basis of reprisal for
prior EEO activity when a Police Officer (1) was denied advanced sick
leave in December, 1992; (2) received a poor Progress Review in February,
1993; and (3) was non-selected to a Police Officer position in May, 1995.
The VA has been ordered to: (1) retroactively promote the complainant
to Police Officer GS-05 to May 11, 1995; (2) issue an appropriate award
of back pay; (3) issue an appropriate award of compensatory damages;
(4) award reasonable attorneys fees; and (5) take corrective action
in the form of training for the responsible official(s). The VA
will ensure that officials responsible for personnel decisions and
terms and conditions of employment will abide by the requirements of
all federal equal employment opportunity laws and will not retaliate
against employees who file EEO complaints.
The VA will not in any manner restrain, interfere, coerce, or retaliate
against any individual who exercises his or her right to oppose practices
made unlawful by, or who participates in proceedings pursuant to,
federal equal employment opportunity law.
Date Posted: _____________________ ____________________
Posting Expires: _________________
29 C.F.R. Part 16141 According to the agency this figure includes
petitioner's gross back pay (with interest) of $112,709.76 minus interim
(outside) earnings, retirement contributions, taxes, and life/health
benefits premium. In addition, this figure includes a �uniform allowance�
of $390.00 plus interest. The agency also noted that should petitioner
want to have his retirement account re-credited he will need to remit
to the agency a check in the amount of $20,311.04.
2 We note that complainant failed to request reconsideration of our
initial order.
3 The record indicates that no health insurance premiums were deducted
during the back pay period.
4 The Commission has held that an adverse inference may be taken against
the party failing to provide requested information or testimony unless
good cause is shown for the failure to fully and timely respond to the
request. See Jefferson v. Social Security Administration, EEOC Appeal
No. 01970516 (April 14, 2000); King v. United States Postal Service,
EEOC Request No. 05940441 (February 2, 1995).
5 Once complainant has established a basic case for back pay, the burden
of proof and persuasion falls to the agency to establish by 'clear and
convincing evidence' that the award should not be made. Marks v. Prattco,
633 F.2d 1122, 1125 (5th Cir. 1981); Day v. Matthews, 530 F.2d 1083, 1885
(D.C. Cir. 1976); Mallard v. Clayton:, 471 F. Supp. 16, 22 (D.D.C. 1978).
6 Courts addressing the moonlighting issue have indicated that if the
plaintiff could have held both the supplemental job and the job he did
not receive because of discrimination, the earnings from the supplemental
job will not be used to reduce the back pay award. See Whatley v. Skaggs
Cos., 707 F.2d 1129, 1139 (10th Cir.1983) (where plaintiff could not have
held both supplemental job and job he lost because of discrimination,
moonlighting earnings are "interim earnings); Bing v. Roadway Express,
Inc., 485 F.2d 441, 454 (5th Cir.1973) (indicating that if plaintiff
could have held both jobs, then supplementary job is not "interim,"
but assumes "permanent" nature).
7 The agency shall provide a clear explanation of its calculation of
back pay and interest to the EEOC Compliance Officer.
8 Complainant is entitled to attorneys' fees to date.