0420100011
04-11-2012
U.S. Equal Employment Opportunity Commission (E.E.O.C.) Office of Federal Operations STANLEY S. TAKAHASHI, PETITIONER, v. PATRICK R. DONAHOE, POSTMASTER GENERAL, UNITED STATES POSTAL SERVICE (WESTERN AREA), AGENCY.
U.S. Equal Employment Opportunity Commission (E.E.O.C.)
Office of Federal Operations
STANLEY S. TAKAHASHI, PETITIONER,
v.
PATRICK R. DONAHOE, POSTMASTER GENERAL, UNITED STATES POSTAL SERVICE (WESTERN AREA), AGENCY.
Petition No. 0420100011
Appeal No. 0720080063
Agency No. 4E-570-0014-06
April 11, 2012
DECISION ON A PETITION FOR ENFORCEMENT
The Equal Employment Opportunity Commission (EEOC or Commission) docketed a second petition for enforcement to examine the enforcement of an Order set forth in Stanley S. Takahashi v. U.S. Postal Service, Appeal No. 0720080063 (Feb. 25, 2009). The Commission accepts this petition for enforcement pursuant to 29 C.F.R. � 1614.503. Petitioner alleged that the Agency failed to fully comply with the Commission's order concerning back pay.
BACKGROUND
During the period at issue, Petitioner worked as a Part-time Flexible (PTF) Letter Carrier at the Agency's Spearfish Post Office in South Dakota.
Petitioner filed an EEO complaint alleging that he was discriminated against on the basis of disability and age when he was terminated during his probationary period. In EEOC Appeal No. 0720080063, the Commission affirmed the AJ's finding of discrimination with respect to the basis of age. The Commission ordered the Agency to take the following action: 1) reinstatement of Petitioner; 2) back pay to Petitioner; 3) training of management officials involved; and 4) posting a notice within the facility. The matter was assigned to a Compliance officer and docketed as Compliance No. 0620090327.
Petitioner's 2009 Petition for Enforcement (0420100003)
On May 29, 2009 and June 11, 2009, Petitioner submitted statements to the Commission's Compliance Officer indicating his desire to file a petition for enforcement. Petitioner contended that the Agency failed to accurately calculate his back pay award.
In his 2009 correspondence to the Commission, Petitioner asserted that the Agency was improperly contending that he failed to mitigate damages during certain periods and was reducing his back pay award accordingly. Petitioner contested the two periods the Agency specified should be excluded from the back pay award. Petitioner asserted that during these times he remained ready, willing, and able to work. Specifically, Petitioner asserted that he kept himself ready to be reinstated at the Agency while also maintaining an active job search profile with the Disabled Veterans' Representative at the South Dakota One Stop Job Service and the substitute teacher list for three school districts to mitigate the damage caused by the Agency's illegal action. For the period August 2006-May 19, 2007, Petitioner asserted that he did not merely return to school, but entered a vocational program which included educational courses as part of a process in seeking suitable employment. Petitioner further asserted that he generated outside income for a portion of that period in August, October, December 2006, and January-May 2007.
Petitioner also contested the Agency's computation of the remainder of the back pay. Petitioner asserted that "[a]ll hours coded as morning and afternoon office time as well as street times for each city and auxiliary route should be included no matter which employee (full time regular, part time flexible, part-time regular, casual, clerk, management etc.) clocked it in."
In response to Petitioner's arguments submitted to the Compliance Officer, EEOC docketed a Petition for Enforcement, identified as Petition No. 0420100003, in October 2009.
Agency's Response to Initial Petition for Enforcement
In its November 9, 2009 response to the Petition for Enforcement, the Agency indicated that it did comply with the Commission's Order in EEOC Appeal No. 0720080063. With respect to reinstatement, the Agency offered Petitioner a job as a PTF letter carrier, which Petitioner declined. This follows an earlier conditional job offer made as interim relief before the Agency's appeal was considered. That offer was also rejected by Petitioner. The Agency in its November 9, 2009 response also stated that it had complied with the training requirement with respect to one management official involved in the finding of discrimination and provided documentation of the retirement of the other official involved which precluded training. Further, the Agency asserted that it had complied with the posting requirement. The record reflects that the Agency issued Petitioner a check for $5,249.38 for back pay on November 5, 2009. In addition, the record reflects that the Agency issued Petitioner a check for $994.65 for interest on the back pay award. In its November 9, 2009 response, the Agency noted that the back pay award excluded two time periods where the Agency determined that Petitioner was not actively seeking employment. This relates to two distinct time periods: two months during the summer of 2006, and when Petitioner was enrolled in a full time course of study in 2006 and 2007. The Agency found that Petitioner was not seeking alternative employment in June and July 2006 based on Complainant's response to interrogatories during the discovery process. The Agency also found that from August 2006 through May 2007, Complainant was enrolled in a full time educational program and was not ready, willing, and able to work. Specifically, the Agency stated:
This disallowance is for time periods when [Petitioner] was not actively seeking employment both under its regulations and under Commission law. This issue was discussed in Simmons v. U. S. Postal Serv., EEOC Request No. 05900957 (Dec. 10, 1993) where the Commission noted that disallowance of back pay for failure to mitigate is appropriate where 1) the petitioner failed to exercise due diligence in seeking suitable employment and 2) there were suitable positions available. However, the Commission held that where as here the evidence is that Complainant took himself out of the market by enrolling in a full-time course of study and for [that] reason declined to look for alternative employment, then the Agency need not show suitable positions were available. The Agency's position is not only that Complainant was attending school full-time, but that because of that he considered himself unavailable for employment during that time, consistent with the instruction from the college he attended. Here, as in Simmons. Complainant failed to mitigate his damages when he enrolled in a full-time course of study and failed to look for alternative employment during that time, and therefore is not entitled to back pay for the period he was in school full time (August 2006-May 19, 2007) and for the two months when he self-reported that rather than look for work he prepared for college and tended to personal matters.
Regarding the Agency's calculation for the remainder of the back pay, the Agency noted that Complainant was a part-time flexible (PTF) and therefore worked a flexible schedule and not guaranteed 40 hours a week. The Agency stated that it "calculated the hours of the other part-time flexible letter carrier and the overtime hours used by carriers at the office by pay period, then divided those hours by two under the assumption that [Petitioner] and the other PTF carrier would have been assigned roughly equal hours." The Agency asserted that while Petitioner challenged its calculations he has not suggested a better method for calculating the hours.
Initial Decision in EEOC Petition No. 0420100003
In its March 23, 2010 decision, the Commission denied the petition for enforcement and found that the Agency complied with the Order set forth in EEOC Appeal No. 0720080063.1 The Commission noted that the Agency provided documentation affording Petitioner an explanation of its calculations for back pay and that Petitioner offered no evidence to support his claim that he is entitled to more back pay.
Second Petition for Enforcement 0420100011
The Commission in its initial decision in Petition No. 0420100003 did not appear to address some of the matters raised by Petitioner in his June 2009 correspondence to the Commission. Accordingly, in April 2010, EEOC docketed a second petition for enforcement, identified as Petition No. 0420100011, to address these matters. The instant decision is on that second petition.
Agency's Response to Second Petition for Enforcement
In the Agency's May 10, 2010 Response to the Second Petition for Enforcement, the Agency reasserts that its calculation of back pay is proper. Specifically, regarding the period from June 2006-July 2006 that was excluded from back pay, the Agency states that its determination of Complainant's ineligibility of back pay in June and July 2006 is based on information provided by Complainant in response to Agency discovery. The Agency asserts that Complainant in response to interrogatories noted that he was not making efforts towards employment during these months. Furthermore, the Agency states:
While [Petitioner] may now argue that his efforts in June [2006] to enroll in school were part of a larger effort to seek employment, that was for some future point after he completed his course of study--it was not a present effort, rather it was preparing and testing for prerequisites...[Petitioner] also seeks to qualify his answer with regard to July, but he had the opportunity to explain his effort to seek employment in July in response to this interrogatory, yet he only states 'July was interrupted." He provides no further description of his efforts at that time. If there was further information he should have shared it when asked, not now when he has a financial reason to qualify it. The Agency properly disallowed these periods of time as the evidence, mainly [Petitioner's] own testimony, demonstrates he was not available for work.
The Agency reasserts that it properly disallowed from the back pay award the period Petitioner was enrolled in a full-time educational program. The Agency asserts that this denial was based on Petitioner's own testimony that he was not actively seeking employment. Regarding Complainant's assertion that he performed periodic work during this period, the Agency states that "taking occasional work or assignments as a substitute teacher is not the same as working full-time and does not prove readiness, willingness, or ability to work full-time, especially given his earlier testimony that he was not available for work."
The Agency also reasserts that its method for calculating Complainant's back pay is correct. The Agency asserts that "[t]he bottom line is that there are a finite number of people to deliver the mail, the full-time carriers and the supplemental part-time flexible carrier(s). Their hours were accounted for and redistributed to compensate [Petitioner] as though he had been there to relieve the overtime of the regular carriers and to share the hours of the PTF...He argues for special calculations depending on who was on the clock on any given day (i.e. six FTRs clocked in with no PTF, etc) but the issue is not who was or was not clocked in, the issue is what hours were used for carrier functions and the Agency's calculation covers that."
ANALYSIS AND FINDINGS
Periods Excluded from Back Pay Award-Duty to Mitigate
A back pay claimant under Title VII generally has a duty to mitigate damages. This also applies to the ADEA. Bedynek-Stumm v. Dep't of Veterans Affairs, EEOC Appeal No. 0120111340 (June 22, 2011). The burden is on the agency, however, to establish that the employee failed in his duty to mitigate. Rhodes v. U.S. Postal Serv., EEOC Petition No. 04900002 (Jan. 4, 1990). The Commission has generally held that an agency must satisfy a two prong test to meet its burden of proof. This test requires the agency to show: (1) that petitioner failed to use reasonable care and diligence in seeking a suitable position, and (2) that there were suitable positions available which Petitioner could have discovered and for which he or she was qualified. Hubert v. U.S. Postal Serv., EEOC Petition no. 04920004 (July 10, 1992). Where a complainant does not make an effort to mitigate damages and does not explain the lack of effort, the agency does not have to meet the second prong. See Simmons v. U.S. Postal Serv., EEOC Petition No. 04930005 (Dec. 10, 1993).
The Commission finds that the Agency has carried its burden of proof regarding the first prong of the test. We find that during the two periods at issue Petitioner was not engaging in reasonable efforts to find comparable employment. The record contains Petitioner's response to Agency Interrogatories asking Petitioner to provide information as to his efforts to seek comparable employment. Therein, Petitioner responded, in pertinent part, that:
May 30, 2006, I was accepted into a program that would lead to a teaching certificate. The month of June [2006] was spent preparing and testing for prerequisites for the teaching program and meeting the requirements for acceptance to the university sponsoring the program. July [2006] was interrupted by an out of state trip to assist in settling my parents' home and its contents.
Petitioner further responded to the Agency Interrogatories that he has not been available for "mil-time employment since March 27, 2006, as a result of pursuing the full-time course of education in which I am currently enrolled." Petitioner also submitted a letter from his educational program indicating that he considered this program to be his "job." The letter from the educational program dated May 30, 2006, provides, in pertinent part, that "[y]ou will need to consider this your full time job, meaning you will be expected to be 'working' during a regular teacher's day during the school year..."
While Petitioner may have accepted a few sporadic substitute teaching assignments during the time he was enrolled in the educational program, the record does not reflect that he was looking for comparable work during this time nor was he ready, willing, and able to work a comparable position.2 We note this matter is distinguishable from Kretschmar v. Dep't of Navy, Petition No. 04A20032 (Sept. 4, 2003) in which the Commission found that the petitioner made reasonable efforts to mitigate her damages while enrolled in a full-time educational program. The petitioner in Kretschmar provided a lengthy explanation of her efforts to seek comparable employment while she was enrolled as a full-time student, including, but not limited to: continuing to seek full-time employment while enrolled as a full-time student and asserting that she would have quit school if she found a comparable position. In the instant matter, we find that Petitioner voluntarily abandoned the job market during this time with respect to seeking a comparable position and focused on his educational program to obtain his teaching certificate. Since we find that Petitioner made no reasonable efforts to mitigate his damages during these periods and failed to adequately explain his lack of effort, we conclude that the Agency did not have to satisfy the second prong of the test.
Method Used to Calculate Back Pay
The purpose of the back pay award is to restore to Petitioner the income he could have otherwise earned but for the discrimination. See Ablemarle Paper Co. v. Moody, 442 U.S. 405, 418-19 (1975); Davis v. U.S. Postal Serv., EEOC Petition No. 04900010 (Nov. 29, 1990). The Commission recognizes that precise measurement cannot always be used to remedy the wrong inflicted, and therefore, the computation of back pay awards inherently involves some speculation. Hanns v. U.S. Postal Serv., EEOC Petition No. 04960030 (Sept. 18, 1997). The Commission finds that it is reasonable to require the agency to provide a clear and concise "plain language" statement of the formulas and the methods it used to calculate petitioner's back pay. See Vashi v. U.S. Postal Serv., EEOC Petition No. 0420060009 (Dec. 5, 2007) (noting that it is the agency's obligation to ensure that its back pay calculations are clear, supported in the record and in accordance with 29 C.F.R. � 1614.501).
The Commission finds that the Agency has provided a clear and concise statement of the method it used to calculate Petitioner's back pay. The record contains a declaration from an Acting Manager, Labor Relations (LR1). Therein, LR 1 asserts that "the normal process is to use a 13 pay period history, but in his case, [Petitioner] had only been employed for 5 pay periods. Therefore, we determined the hours he would have worked by adding the hours worked by the PTF in the office and the overtime hours utilized by the regular carriers, then divided that number by two since that is how many PTF employees would have worked had [Petitioner] not been separated."
We are not persuaded by Petitioner's assertion that the Agency should have used another formula. Petitioner asserts that the formula should have been adjusted based on who was working; however, we find that the Agency properly addressed these concerns. The Agency in its May 10, 2010 response asserts "the issue is not who was or was not clocked in, the issue is what hours were used for carrier functions3 and the Agency's calculations capture that." The Agency further asserts that "if one FTR were off for a week, the PTF's hours would increase in coverage, and it is likely overtime hours would as well.similarly, on days when there was no PTF scheduled, that means the FTRs were completing all the work, and only overtime would reflect the excess hours that could have been assigned to [Petitioner]."
CONCLUSION
Based on the foregoing, the Commission denies Petitioner's petition for enforcement.
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (P0610)
This decision of the Commission is final, and there is no further right of administrative appeal from the Commission's decision. 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.
RIGHT TO REQUEST COUNSEL (Z0610)
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 from the Court that the Court appoint an attorney to represent you and that the Court also 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 with the Court 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
Footnotes
1
We note that Petitioner's submitted an additional statement, dated March 22, 2010 (one day before the decision in 0420100003 was issued), to the Compliance Officer. Petitioner asserted "[t]his is submitted as a supplement to the record to address the arguments presented in the Agency Response to Petition for Enforcement of November 9, 2009."
In response, the Agency requested that we find Petitioner's March 2010 submission to be untimely. Specifically, the Agency stated:
On October 15, 2009, the Agency received from OFO a notice of docketing of a Petition for Enforcement filed by [Petitioner]. This Notice allowed the parties 20 days from receipt to submit comments or an opposition brief. The [Agency] timely filed a response on November 9, 2009, but received nothing from the [Petitioner] explaining his concerns with Agency compliance until March 25, 2010--more than 120 days after the Notice allowing 20 days to respond and more than 100 days after the Agency filed its response. [Petitioner's] captioning of this document as a "supplement" to the record is nothing but an attempt to submit arguments now when he failed to properly to do so in accord with the timeframes of the Notice.
We find Petitioner's March 2010 statement was untimely for the reasons set forth by the Agency and we decline to further address this correspondence.
2
The record contains a chronology of events submitted by Petitioner regarding his efforts to mitigate his damages. The chronology reflects that in March-April 2007, Petitioner applied for a few teaching positions. However, it appears that these positions were to start upon completion of his educational program and receipt of his teaching certificate. For example, Petitioner lists that he applied for a teaching position at Spearfish High School on March 5, 2007. However, Petitioner indicates that this position did not start until August 2007.
3
The Agency asserts, pursuant to a collective bargaining agreement, delivering the mail is a function reserved exclusively for city letter carriers.