04990031
02-04-2000
v. ) Petition No. 04990031
Daren C. Howgate v. United States Postal Service
04990031
February 4, 2000
Daren C. Howgate, )
Petitioner, )
)
v. ) Petition No. 04990031
) Appeal No. 01970992
William J. Henderson, ) Hearing No. 240-95-5009X
Postmaster General, ) Agency No. 4-J-460-1005-94
United States Postal Service, )
Agency. )
______________________________)
DECISION ON PETITION FOR ENFORCEMENT
On March 16, 1999, Daren C. Howgate (hereinafter, petitioner) filed
this petition for enforcement with the Equal Employment Opportunity
Commission (hereinafter, EEOC or Commission) requesting enforcement
of the order for remedial relief set forth in Darren C. Howgate v.
William J. Henderson, Postmaster General, United States Postal Service,
EEOC Appeal No. 01970992 (July 27, 1998). This petition for enforcement
is accepted by the Commission pursuant to 29 C.F.R. �1614.503.
The issue presented in this petition is whether the agency has fully
complied with the Order of the Commission set forth in EEOC Appeal
No. 01970992.
An EEOC Administrative Judge (AJ) issued a Recommended Decision finding
that the agency had discriminated against petitioner when it unlawfully
failed to hire him for the position of a part-time regular mail processor
in violation of the Rehabilitation Act of 1973. As remedial relief,
the AJ recommended that the agency take the following actions: (1)
place petitioner in the same or a substantially equivalent position
that petitioner would have occupied but for the unlawful decision not
to appoint petitioner to the position in question; (2) make petitioner
whole for any loss of earnings and/or benefits that he may have suffered
or incurred as a result of the agency's unlawful act of discrimination;
(3) cease engaging in said unlawful activity; (4) take appropriate
preventative measures to ensure that such unlawful activity will not
recur; and (5) issue all notices required and/or recommended in 29
C.F.R. � 1614.501.
In an October 12, 1996 final agency decision (FAD), the agency adopted
the AJ's recommended finding of discrimination but modified the AJ's
recommended remedial relief. Specifically, the FAD limited petitioner's
back pay with interest award to include only the period between August
30, 1993 and May 10, 1994, reasoning that petitioner sustained an injury
in a motorcycle accident on May 10, 1994, which would have removed him
from employment with the agency. The agency also noted in its FAD that
even if petitioner had been hired, petitioner would have been separated
from the agency in May 1994, because of his inability to perform his
duties as a result of the severe nature of the off-the-job injury and
his short tenure with the agency. The agency further noted that at the
hearing petitioner stated that he was still recovering from the injuries.
Petitioner disagreed with the adequacy of the remedy ordered by the
agency and appealed the FAD to the Commission. Petitioner's appeal was
docketed as EEOC Appeal No. 01970992.
In EEOC Appeal No. 01970992 (July 23, 1998), the Commission noted that
because petitioner prevailed on his allegation of being discriminatorily
denied a position, full relief would entail retroactive placement into
the position improperly denied, as well as all back pay and benefits.
Regarding the payment of back pay, the Commission noted that the
provisions of 5 C.F.R. �550.805(c)(1) prohibit an agency from including
in an award "[a]ny period during which an employee was not ready, willing,
and able to perform his or her duties because of an incapacitating illness
or injury." The Commission determined that the record was insufficient
to determine whether at the time and following his motorcycle accident
on May 10, 1994, petitioner was "ready, willing, and able" to perform the
duties of a part-time regular mail processor. Consequently, the agency's
decision on remedial relief was vacated by the Commission and the agency
was ordered, in relevant part, to take the following remedial action:
(1) In accordance with this decision, the agency shall determine the
appropriate amount of back pay and other benefits due [petitioner],
pursuant to 29 C.F.R. �1614.501, no later than sixty (60) calendar days
after the date this decision becomes final. [Petitioner] 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,
i.e., to determine whether [petitioner] was "ready, willing, and able"
to perform the duties of the subject position, and the period, if any,
during which he was not able to do so. 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 thirty (30) calendar
days of the date the agency determines the amount it believes to be due.
(2) If the agency determines that petitioner is entitled to more back
pay than previously determined, the agency shall request a verified
statement of fees from [petitioner's] attorney in accordance with 29
C.F.R. �1614.501.
EEOC Regulation 29 C.F.R. � 1614.501 states that when an agency, in an
individual case of discrimination, finds that an individual has been
discriminated against, the agency shall provide full relief. The injured
party is to be placed, as near as may be, in the situation he or she
would have occupied if the wrong had not been committed. Albemarle Paper
Company v. Moody, 422 U.S. 405, 418-19 (1975). Actual computations for
back pay awards are performed in accordance with 5 C.F.R. �550.805.
In the instant petition for enforcement and in a Supplemental
Submission, petitioner requests that the Commission calculate the
specific amount of back pay and benefits due him as a result of the
agency's discrimination. Petitioner states that he is entitled to the
following "make whole" relief: 1) back pay from May 10, 1994 through
March 30, 1998 because he was ready, willing, and able to work; 2) Sunday
pay and night differential; 3) lost employment benefits in the form of
agency contributions to the thrift savings plan (TSP); 4) compensatory
damages for emotional distress; 5) conversion from the position of a
part-time regular mail processor to that of a full-time regular mail
processor effective November 12, 1994; 6) 16 hours of overtime weekly
from November 12, 1994; 8) appropriate seniority, vacation pay and
sick and annual leave; 7) any payments and benefits he would have been
entitled to as a mail processor as a result of grievance settlements;
6) interest and attorney's fees; and 8) any other benefits to which he
would have been entitled but of which he is presently unaware.
Back Pay
As a result of the supplemental investigation that the Commission ordered
in EEOC Appeal No. 01970992 on the issue of when petitioner was ready,
willing, and able to work, the agency determined that petitioner was
entitled to additional back pay only from July 27, 1997 through March
28, 1998, at the applicable straight time rate of 36 hours a week.
The agency also determined that petitioner was not ready, willing,
and able to work from May 11, 1994 through July 26, 1997.<1>
In his petition for enforcement, petitioner asserts that he is entitled
to back pay from May 10, 1994 through March 30, 1998 because he was
ready, willing, and able to work. In its response to the petition
for enforcement, the agency maintains that petitioner was not ready,
willing, and able to work until July 27, 1997. In support, the agency
relies on a Functional Capacity Assessment Summary Report from a physical
therapist.<2>
The records submitted to the Commission's Compliance Division reveal
that petitioner was involved in a motorcycle accident on May 10, 1994.
At the time, petitioner was employed part-time at a furniture company.
The Compliance Division's records also contain various affidavits. In a
September 18, 1998 affidavit, petitioner states that if he were employed
by the agency on the date of his motorcycle accident, the agency would
have been able to offer him a light duty job during the period that
he was recuperating and that, alternatively, he was at the very least
able to work as a part-time regular mail processor on August 5, 1994,
the date he returned to work for the furniture company. Petitioner also
stated that when he returned to his part-time work for the furniture
company on August 5, 1994, he returned as a disposition clerk, because
the previous position he held was filled. Petitioner also stated that
his new position with the furniture company was less physical than his
previous position, but it still required more physical exertion than
that needed to perform the job of part-time regular mail processor.
In an October 29, 1998 affidavit, petitioner states that he had a
knee replacement procedure in September 1996, that the procedure was
elective and that he would have been able to perform the duties of a
part-time regular mail processor, despite the surgery. He also stated
that immediately following the surgery, he did not work at the furniture
company for two weeks because he was on vacation.
An October 26, 1998 affidavit from the Indianapolis President of the
American Postal Workers Union (APWU) indicates that she worked for the
agency over 28 years, that she trained agency employees and that the
petitioner's position would not entail lifting over 20 pounds and that
the duties required only occasional lifting of between five and 20 pounds.
A February 9, 1995 affidavit of a co-worker of petitioner at the furniture
company which was admitted, in part, as evidence at the hearing before
the AJ, reveals that petitioner had to deliver and lift furniture and
take furniture into the homes of customers.
The Compliance Division's records also contain correspondence from
the furniture company where petitioner was employed. A September 18,
1998 letter from the furniture company's Human Resource Representative
reflects that petitioner worked as a part-time employee from April 17,
1991 to January 8, 1998, and that his duties included pushing furniture
off delivery trucks and putting it away in a racking system, using
a forklift picker to do so. The letter does not describe any other
duties or physical activities that petitioner was required to perform.
An October 22, 1998 letter reflects that petitioner returned to work
on August 9, 1994 (sic), after his motorcycle accident. A March 14,
1997 letter, also from the Human Resource Representative, indicates
that petitioner was off work from May 10, 1994 to August 5, 1994 (sic),
and that he averaged 22 hours a week. The letter also reveals that from
January 1997, petitioner reduced his hours to working only on Saturday
or eight hours weekly.
The Compliance Division's records contain the position description for
a mail processor which reflects that the functional requirements of the
position included heavy lifting up to 70 pounds, carrying 45 pounds and
above, pushing, pulling, walking (eight hours), standing (eight hours),
and repeated bending.
The Compliance Division records also contain various hospital and
medical reports. A May 11, 1994 Veterans Hospital report indicates that
petitioner was admitted to the hospital on May 11, 1994, with severe
injuries to his knees and discharged on May 27, 1994. During his
hospitalization, petitioner underwent surgeries to both knees.
An October 17, 1995 medical report from the Cincinnati Sports Medicine
and Orthopaedic Center, where petitioner was evaluated at the request
of physicians at the Department of Veterans Affairs for complaints of
bilateral knee pain, reflects that petitioner reported unstable feelings
in his right knee and gross instability of the left knee with pain in
both knees. Petitioner also reported that he had to wear a left knee
brace at all times. The report does not indicate what physical activities
petitioner could have engaged in or restrictions on physical activities.
A March 27, 1997 report of another physician, who saw petitioner for a
fitness for duty examination at the request of the agency, reveals that
petitioner underwent a total left knee replacement in September 1996.<3>
In his report, the orthopedic doctor recommended that petitioner be
permanently limited to a light duty job that involved mostly sitting
and that petitioner not lift over 25 pounds.
The record contains an August 15, 1997 Functional Capacity Assessment
Summary Report. Therein, the physical therapist reported the results
of the tests and concluded that petitioner's physical ability matched
the job description of a mail processor.
A December 4, 1998 report from an orthopedic surgeon at Atlas
Orthopedics & Sports Medicine, where petitioner was seen at the request
of his attorney, is contained in the Compliance Division's records.
Petitioner described his duties at the furniture company after the
motorcycle accident and stated that his duties were equal to or less
demanding than sorting mail and was less physically demanding than his
original duties of delivering furniture. In his report, the physician
states that petitioner could have worked at the agency when he returned
to work for the furniture store in August 1994, and that in 1996, after he
had the total knee arthroplasty, he would have been able to return to the
agency approximately six weeks thereafter. The report does not indicate
whether beyond sorting mail, the physician knew what the other duties
or the physical activities of a part-time regular mail processor involved.
The record submitted to the Compliance Division contains petitioner's
university records, which indicate that he was enrolled at Indiana
University as an undergraduate student in nursing from 1994, and that
he received an associate of science degree in nursing in May 1998.
The academic transcript reflects that petitioner withdrew from three
classes in the 1996 fall semester.
The record also contains petitioner's written closing statement and
other correspondence submitted to the AJ during the hearing process.
In his March 2, 1995 closing statement provided to the AJ after the
hearing, petitioner stated that he was requesting that the agency hold
the position open for him until he had "recuperated from [his] injuries"
or find a suitable position for him to fill which was compatible with his
college schedule since he was attending college. During his February
16, 1995 testimony before the AJ, petitioner testified that he damaged
both knees and that he was "still recovering" from the injuries.
In a December 5, 1994 letter from petitioner to the AJ, petitioner
stated that he was only available on Thursday and Friday mornings for
a prehearing telephone conference because he attended college and he
worked at other times and, also, that he planned to be hospitalized
around December 14, and December 15, 1994.<4> In a December 5, 1994
statement concerning discovery from petitioner to the AJ, petitioner
stated that since the motorcycle accident, he was "still slowed down"
from the double surgeries to his knees and that it took him more time
to attend to matters on his schedule.<5>
Upon review, the Commission is satisfied that the record does not
support the agency's determination that petitioner was not ready,
willing, and able to work for the entire period beginning May 11, 1994
to July 27, 1997. Rather, we find that petitioner, despite his vigorous
assertions to the contrary, was not able to work as a part-time regular
mail processor until at least March 2, 1995, and that during a six-week
period in September 1996, petitioner was also not able to perform his
duties.<6> Although petitioner states that he was ready, willing, and
able to work continuously as a mail processor despite the motorcycle
accident and subsequent surgeries, the record and petitioner's own prior
statements contradict his assertions. Petitioner was hospitalized
after the motorcycle accident and not discharged until May 27, 1994.
Petitioner did not return to work for the furniture company until August
1994, and when he did so, he did not have to perform the same strenuous
work that he performed prior to the motorcycle accident. Moreover,
petitioner himself testified in the hearing before the AJ that he was
"still recovering" from his knee injuries and in his March 2, 1995 closing
statement, he asked that his position be held open for him. From this
statement, the Commission infers that petitioner was unable to work as a
part-time regular mail processor. Therefore, it is the determination of
this Commission that as late as March 2, 1995, petitioner was not ready,
willing, and able to perform the duties of a part-time regular mail
processor. The Commission further finds that petitioner was also not
ready, willing, and able to work as a part-time regular mail processor
for at least six weeks in and around September 1996, because of a total
left knee replacement. Although the record suggests that petitioner may
not have been ready, willing, and able to work between March 2, 1995,
and periods thereafter, the Commission will not engage in speculation on
this matter. The law is well-settled that once an employer is found to
have discriminated, uncertainties in determining what an employee would
have earned should be resolved against the discriminating employer.
McIsaac v. Department of the Navy, EEOC Request No. 05920136 (March
30, 1992); Karvonen v. U.S. Postal Service, EEOC Petition No. 04900005
(October 31, 1990); Salinas v. Roadway Express, Inc., 735 F.2d 1574,
1578 (5th Cir. 1984).
The Commission notes that the agency maintains that petitioner was
not able to work from May 10, 1994, until July 26, 1997. The agency
principally relies on the functional assessment test. That report does
not in any way establish that petitioner was not ready, willing, and
able to perform the duties of a part-time regular mail processor prior
to July 27, 1997, and only establishes that petitioner could perform
those duties in August 1997, when the testing was actually performed.
Because the agency failed to establish that petitioner was not ready,
willing, and able to work continuously from May 11, 1994 to July 26,
1997, we find that the petitioner is entitled to back pay from March 3,
1995 through July 26, 1997, with the exception of six weeks following
petitioner's knee replacement surgery in 1996. Petitioner is also
entitled to the payment of interest on the back pay.
Placement into a Full-time Position
Petitioner states that the agency failed to make him "whole" by not
placing him in a full-time regular mail processor position and instead
placed him in a part-time regular mail processor position in March 1998.
He asserts that he would have been eligible for conversion from a
part-time regular mail processor position to a full-time regular mail
processor position on November 12, 1994, had the agency not discriminated
against him and, consequently, he would have been entitled to appropriate
seniority, vacation pay, overtime, sick and annual leave benefits,
and other similar benefits. He also states that since the conversion
would have occurred on November 12, 1994, his back pay must be computed
based on the 40-hour weekly rate of a full-time regular mail processor,
beginning on November 12, 1994, and continuing through March 30,
1998, to the present. Petitioner's Recovery Memorandum to the agency
calculates the specific amount of back pay due him, if he were placed
in the full-time position beginning November 12, 1994.
In a February 27, 1998 letter, the agency offered petitioner the position
of part-time regular mail processor which petitioner accepted on March
11, 1998. An October 19, 1994 Memorandum from the Plant Manager and
the APWU president to all of the agency's part-time regular clerks
reveals the agency's offer of an option to all part-time regular clerks
to convert to full-time status. The Memorandum also states that to
the extent possible, part-time regular clerks would be placed into
positions matching their current qualifications and that where there
were more qualified part-time regular clerks than positions available,
individual preference and seniority ranking would prevail.
Upon review, we find that in view of the numerous circumstances which
would have to be met for petitioner to have been offered a full-time
position, i.e., a full-time position available, petitioner qualified for
the particular position available, petitioner wanting the particular
position available, and petitioner having the seniority ranking to
obtain the position, it would be too speculative for the Commission
to conclude that petitioner would have gotten a full-time position
absent discrimination. Therefore, it was proper for the agency to
place petitioner into the position of a part-time regular processor.
Accordingly, petitioner is not entitled to the back pay and other
benefits he would have received had he occupied the position of a
full-time regular mail processor on November 12, 1994.
Amount of Back Pay Benefits Paid
In his petition for enforcement and in his Recovery Memorandum, petitioner
calculated in detail the amounts he claims are owed to him as back pay
for the period from May 11, 1994, through March 30, 1998.
When the amount of back pay is in dispute, the burden is on the agency
to produce documentary evidence of the hours the complainant would have
worked and the rate of pay he would have received but for the prohibited
discrimination.
The April 22, 1998 Typewriter Check Payment of the agency indicates that
petitioner was awarded back pay in the gross amount of $18,480.60 from
pay period 16 in 1997 to pay period seven in 1998.<7> Deductions were
in the amount of $7,552.12 and a check apparently issued to petitioner
in the amount of $10,928.48. An agency Form 8039 (Back Pay Worksheet)
and the Typewriter Check Payment reveal that back pay was computed from
pay period 16 in 1997, to pay period 7 in 1998, for a total of 1260
base hours (36-hour workweeks x 35 pay periods) based on salaries of
$29,803 to $33,789. It is not entirely clear what rates were employed
in the computation of the back pay and the specific periods when salary
adjustments were made. There is also no evidence, nor does the agency
claim, that it paid petitioner any interest on the back pay. Accordingly,
the agency shall pay petitioner the back pay for the periods addressed
previously herein at the appropriate pay rate. Petitioner is also
entitled to interest on his back pay. The agency shall provide a clear
explanation to the Compliance Division regarding how the pay rate and
interest calculations are determined.
Sunday Pay, Night Differential, Overtime
The Commission has held that gross back pay determinations "must reflect
fluctuations in working time, overtime rates, penalty overtime, Sunday
premium and night work, changing rates of pay, transfers, promotions,
and privileges of employment to which [the] petitioner would have been
entitled but for the discrimination." Allen v. Department of the Air
Force, EEOC Petition No. 04940006 (May 31, 1996).
Petitioner requests that the agency pay him for overtime and Sunday and
night differential. In his petition, he states that had he been hired,
he would have been required to work from 5:00 p.m. to 11:00 p.m. on
Tuesdays through Sundays and that he would have been entitled to Sunday
and night differential. In his Recovery Memorandum, petitioner outlined
his calculations.
In an April 12, 1999 letter to the Commission's Compliance Division,
the agency stated that petitioner was entitled to night differential and
Sunday premium during the period July 27, 1997 through March 28, 1998, but
that it needed 15 days to finalize compliance with the Commission's order.
While the agency issued a check in the amount of $10,928.48 and
acknowledged in its April 12, 1999 letter that petitioner was entitled
to night differential and Sunday premium pay, the check and accompanying
documentation do not indicate that petitioner was in fact, provided
Sunday pay and night differential. It is therefore, the finding of the
Commission that the agency is not in compliance with the order to pay
petitioner other benefits due.
Whether petitioner was entitled to overtime as a part-time regular mail
processor and whether he was paid overtime is unclear. Therefore, the
agency must determine whether petitioner is entitled to overtime pay.
If petitioner is entitled to overtime, those amounts should be paid to
petitioner with interest thereon. The agency shall also ensure that its
back pay calculations reflect any weekend premium pay and differentials
to which petitioner is entitled. The agency shall provide an explanation
detailing how its calculations were obtained and provide accompanying
documentation. If the agency believes, for example, that petitioner
is not entitled to overtime, it shall provide that information to the
Compliance Division with its rationale and supporting documentation.
Vacation Pay, Sick and Annual Leave, Bonuses, Salary Adjustments
Gross back pay includes all forms of compensation such as wages, bonuses,
vacation pay, and all other elements of reimbursement and fringe benefits
such as pension and health insurance. Robinson v. Department of the
Treasury, EEOC Petition No. 04980006 (July 2, 1998).
In view of our determination herein that the agency did not properly
determine the period of time that petitioner was able to work and hence
was entitled to back pay and other benefits, the agency's calculations
of vacation pay, sick and annual leave, bonuses, and salary adjustments
would similarly require further adjustment. Furthermore, the Commission
notes that it is unable to determine from the present record whether
petitioner was entitled to vacation pay, sick and annual leave, bonuses,
salary adjustments for the period previously designated by the agency
and, if so, whether petitioner was credited the correct amounts of leave
and/or his salary properly adjusted. Accordingly, the agency is directed
to credit petitioner with any bonuses, leave or vacation pay and any
other benefits to which he is entitled and provide an explanation to the
Compliance Division with appropriate documentation. The documentation
must clearly establish that the agency has fully complied with the order.
Thrift Savings Plan
TSP is a tax-deferred investment retirement plan for federal employees.
Petitioner seeks reimbursement for the contributions that the agency
would have matched or contributed to petitioner's TSP account.
Petitioner also asserts that had he not been discriminated against,
he would have contributed the maximum amount to his TSP account and
that the agency would therefore have to match his contribution up to
five percent. In a Supplemental Submission to the Commission, petitioner
further asserts that in order to make him completely "whole," the agency
must reimburse him for the earnings that would have accrued to his TSP
account over the years had he been able to contribute to his TSP account
and placed his contributions in the Common Stock Investment (C) Fund.
Petitioner also submitted the annual rates of return for the C fund from
1994 through 1997.
The Commission has held that "make whole" relief requires the agency to
make retroactive tax-deferred contributions to petitioner's TSP account
during the back pay period. Fiene v. U.S. Postal Service, EEOC Petition
No. 04920009 (September 3, 1992). The Commission has also 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. Robinson, supra; Lee v. Department of the Army,
EEOC Petition No. 04980020 (October 1, 1998); Korchnak v. U.S. Postal
Service, EEOC Petition No. 04960028 (December 19, 1996)(petitioner who
was terminated before becoming eligible for TSP entitled to enrollment in
the program); Wrigley v. U.S. Postal Service, EEOC Petition No. 04950005
(February 15, 1996).
The April 22, 1999 Typewriter Check Payment appears to reflect that
$300 was paid into a TSP C fund account. Records accompanying the check
payment indicates that $50.00 was placed in petitioner's earnings from
pay period two (2) in 1998 through pay period seven (7) in 1998 for a
total of $300.00. However, there is no explanation in the record as to
how the agency arrived at the six $50.00 deductions or why the $50.00
contributions were made when they were. For example, the record does
not explain if the agency determined when petitioner became eligible
for enrollment in the TSP program, if petitioner's own contributions
were deducted from his back pay as of the date of his eligibility,
or why TSP deductions were apparently made only in 1998. The record
is similarly unclear as to whether the agency matched petitioner's
contributions, whether petitioner was credited with interest on the TSP
contributions, or how taxes were calculated on petitioner's back pay as
a result of TSP contributions. Accordingly, because the Commission is
not only unable to decipher the information provided by the agency but,
also, because there is insufficient indication in the record that the
agency has properly calculated TSP contributions during the back pay time
period and the concomitant interest which the account would have earned,
we cannot make a reasoned determination as to the accuracy of any TSP
contributions or determine whether petitioner was provided "make whole"
relief with regard to the TSP. See Morra-Morrison v. U.S. Postal Service,
EEOC Petition No. 04980023 (June 2, 1999).
Accordingly, the agency shall determine when petitioner became eligible
for the TSP and shall compute the amounts that should be placed in
petitioner's TSP, the agency's matching contribution with interest,
and time periods covered. The agency shall then pay into petitioner's
TSP all amounts owed. All calculations shall be fully explained and
provided to the Compliance Division with supporting, patently clear, and
precise documentation. Documentation, unaccompanied by clarification,
shall not be deemed sufficient.
Compensatory Damages
Petitioner requests that, in order to be made whole, that the Commission
award him compensatory damages resulting from emotional distress caused
by the agency's discrimination, its bad faith handling of this matter
and the stalling tactics employed by the agency in order to circumvent
compliance with the Commission's order.
Petitioner is not entitled to compensatory damages. In her recommended
decision, the AJ specifically stated that she was not recommending
compensatory damages because petitioner had not requested such damages
and/or carried his evidentiary burden in support of such damages. In its
FAD, the agency adopted the AJ's recommendation on compensatory damages.
When petitioner filed his appeal of the FAD, he did not appeal the issue
of compensatory damages. Because a petition for enforcement cannot
change the result of a prior decision or enlarge or diminish the relief
ordered, petitioner cannot now be awarded compensatory damages. D'Andrea
v. U.S. Postal Service, EEOC Petition No. 04930004 (March 17, 1994).
To the extent that petitioner appears to be requesting punitive damages
for the manner in which he claims the agency processed the complaint
and employed stalling tactics in implementing its FAD and complying with
the Commission's order, the Commission notes that punitive damages are
not available to federal employees. Walker v. Department of the Army,
EEOC Petition No. 04970009 (January 5, 1998); Jones v. Department
of Health and Human Services, EEOC Request No. 05940377 (January 23,
1995); Graham v. U.S. Postal Service, EEOC Request No. 05940132 (May
19, 1994). The Commission, however, can award attorney's fees and costs
that petitioner incurred in processing his petition for enforcement.
Issuance of Notices
The Commission notes that petitioner has not maintained that the agency
failed to issue all notices required pursuant to 29 C.F.R. �1614.501.
However, there is no evidence in the Compliance Division's records
which indicates that the agency has done so. Therefore, the agency is
directed to issue the required notices, if it has not already done so,
and to provide the Compliance Division with documentation establishing
its compliance.
Attorney's Fees and Costs
In EEOC Appeal No. 01970992, petitioner was awarded reasonable
attorney's fees. The record contains a March 18, 1999 Settlement
Agreement which concerns attorney's fees only. Therein the agency
agreed to pay attorney's fees and costs in the amount of $16,800.
The parties agreed that the amount represented a full and final
resolution regarding attorney's fees and costs, with the exception
of any attorney's fees and costs incurred after February 5, 1999.
Petitioner now requests attorney's fees and costs for processing the
petition for enforcement. The Commission finds that petitioner is
entitled to a reasonable attorney's fee and costs for services rendered
after February 5, 1999, which were incurred in the processing of this
petition for enforcement. Terrell v. Department of Health and Human
Services, EEOC Petition No. 04950018 (November 7, 1996)(petitioner
who successfully obtained compliance with a Commission order through a
petition for enforcement was entitled to be reimbursed for attorney's
fees and costs incurred in processing the petition). Such an award is
appropriate because the subject petition for enforcement is a reasonably
foreseeable consequence of the agency's failure to comply fully with
the Commission's order. Terrell, Id.
CONCLUSION
Based upon a review of the record, the submissions of the parties,
and for the foregoing reasons, the Commission GRANTS the petition for
enforcement in part. The agency is ORDERED to comply as set forth in
this decision and in the Order below.
ORDER
The agency is ORDERED to take and complete the following actions within
thirty (30) calendar days of the date of receipt of this decision:
1. The agency shall recalculate the back pay due to petitioner and pay
him any additional sums due as back pay and interest for the period
from May 11, 1994, to March 28, 1998, as delineated in this decision.
The agency shall pay any and all salary increments and adjustments,
overtime, Sunday pay, and night differential to which petitioner would
have been entitled had petitioner been appointed to the position of a
part-time regular mail processor. Petitioner shall also be paid interest
on back pay and other benefits. All payments made by the agency shall be
properly identified and indicate, for example, the amounts paid, the time
periods covered and how the amounts were computed. All of the agency's
calculations, recalculations and adjustments to back pay and the payment
of other benefits and interest shall be fully delineated, explained and
supported with appropriate documentation and evidence of payment.
2. The agency shall compute and pay the amount of contributions due
into petitioner's TSP account from the date of his eligibility to enroll.
The agency shall provide calculations with regard to the precise manner
in which it has compensated petitioner regarding all TSP contributions,
including, but not limited to, whether it provided petitioner with
applicable matching contributions and at what rate, the amount of
petitioner's own contributions, time periods covered, interest, and
tax calculations.
3. The agency shall also determine the amount of any and all other
benefits due petitioner, including but not limited to, sick and annual
leave, bonuses and vacation leave, had petitioner been appointed to the
position of part-time regular mail processor.
4. If there is a dispute regarding the exact amount of back pay or any
other benefits, the agency shall issue a check to petitioner for the
undisputed amount with a full explanation as to how it determined the
amounts due.
5. The agency shall provide the Compliance Officer with documentation
establishing that it has issued the required notices pursuant to 29
C.F.R. � 1614.501.
6. The agency shall reimburse petitioner for attorney's fees and costs
incurred after February 5, 1999, in connection with the filing of this
petition for enforcement. Petitioner's attorney shall submit a verified
statement of fees to the agency within thirty (30) calendar days of
the date of receipt of this decision. The agency shall then process
the claim for attorney's fees in accordance with 29 C.F.R. � 1614.501.
Documentation of the agency's calculation of the attorney's fees payable
and evidence of payment shall also be submitted to the Compliance Officer.
7. The agency shall submit a compliance report which explains its position
in detail and includes all supporting documents to the Compliance Officer.
The agency must attach all documentation that it utilized in reaching its
conclusions and the manner of calculation of and evidence of payment.
The compliance report must also fully explain, wherever applicable,
why it determined that petitioner is not entitled to certain payments
or other benefits and include supporting documentation. Records and
other documentation unaccompanied by a written explanation of precisely
how calculations were arrived at or with inadequate or incomplete
documentation shall not be deemed sufficient. The agency shall,
by letter, provide copies of all above documents to petitioner. If,
upon receipt of the agency's compliance report, the petitioner believes
that the agency is still not in compliance, then he may petition for
enforcement or clarification of the amount or benefit 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."
The compliance report and supporting documentation, as set forth above,
must be submitted to the Compliance officer, as referenced below.
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).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (Q1199)
This decision affirms the agency's final decision/action in part, but it
also requires the agency to continue its administrative processing of a
portion of your complaint. 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 on both that portion
of your complaint which the Commission has affirmed AND that portion
of the complaint which has been remanded for continued administrative
processing 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:
February 4, 2000
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing. I certify that
the decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
_______________ __________________________
Date Equal Employment Assistant
1On May 9, 1997, the agency issued a back pay award to petitioner for
the period commencing August 30, 1993 through May 10, 1994, at 36 hours
a week in the amount of $15,284.88 which covered 1308 hours of work
including terminal leave of 64 hours. The net amount paid was
$9,732.57 and interest was to be paid by separate check.
2It is unclear why the agency is using July 27, 1997, as the date
when it believed petitioner was ready, willing, and able to work.
The Commission notes that petitioner was scheduled for the functional
capacity test on July 23, 1997, but was not tested until August 15, 1997.
3Medical reports concerning this surgery are not contained in the record.
4There are no records regarding this hospitalization in the record.
5The Commission notes that the issue of whether petitioner was ready,
willing, and able to work was not specifically raised or addressed during
the proceedings before the AJ.
6The Commission notes that in the agency's Form 8038, petitioner stated
that he did not wish to substitute credited annual or sick leave for
periods during which he was not ready, willing, and able to work.
7A document submitted by the agency indicates that the period for which
back pay was paid was from July 27, 1997 to March 27, 1998.