0420070001
06-04-2009
Blaise A. Mika, Petitioner, v. Michael W. Wynne, Secretary, Department of the Air Force, Agency.
Blaise A. Mika,
Petitioner,
v.
Michael W. Wynne,
Secretary,
Department of the Air Force,
Agency.
Petition No. 0420070001
Appeal No. 07A40113
Hearing No. 320-A3-8432X
Agency No. 6X1S02062F04
DECISION ON A PETITION FOR ENFORCEMENT
On September 1, 2006, the Equal Employment Opportunity Commission
(EEOC or Commission) docketed a petition for enforcement to examine the
enforcement of an order set forth in Blaise A. Mika v. Department of the
Air Force, EEOC Appeal No. 07A40113 (January 13, 2005). This petition
for enforcement is accepted by the Commission pursuant to 29 C.F.R. �
1614.503.
BACKGROUND
Petitioner previously filed a complaint in which he alleged that the
agency discriminated against him in reprisal for prior protected
activity when he was terminated from his position in the Lodging
Management Trainee Program on July 14, 2002. Following a hearing,
an EEOC Administrative Judge (AJ) issued a decision on May 24, 2004,
finding complainant was discriminated against when he was terminated.
The agency issued a final decision declining to implement the AJ's finding
of discrimination and appealed the AJ's decision to the Commission.
In EEOC Appeal No. 07A40113, the Commission reversed the agency's final
decision, finding that the agency discriminated against petitioner when he
was terminated and ordered the agency to offer petitioner reinstatement
as a Lodging Management Trainee (MT) in the management trainee program
or a substantially equivalent position of equal grade, pay, duties,
responsibilities, and benefits. The order also specified that the agency
had to pay petitioner all pay and/or benefits lost as a result of the
agency's retaliatory actions, assuming that he was employed as an MT from
June 17, 2002 (the date his termination was effective), through April 1,
2004 (the date his MT training program would have ended).
The record contains a letter from petitioner dated March 21, 2005,
addressed to the Commission. Petitioner states that he filed a petition
for enforcement with the Commission on March 15, 2005, claiming the
agency had taken no steps to comply with the Commission's January 13,
2005 order. In his March 21, 2005 letter, petitioner states he is filing
his "First Amendment" to the petition for enforcement. He states the
agency improperly offered him reinstatement to an employment facility
in Mississippi instead of in Colorado, the location from which the
Commission found he was illegally removed.
Petitioner subsequently submitted amendments to the petition for
enforcement on September 1, 2006 (second amendment), and October 3, 2007
(third amendment). In his amendments, petitioner contends that he would
have completed the MT program in April 2004, and would then have been
promoted to an assistant lodging manager or lodging manager position.
He claims the agency is not in compliance with the Commission's decision
since it failed to place him in an assistant lodging manager position,
lodging manager position, or equivalent position.
In his petition, petitioner acknowledges that the agency reinstated him on
July 6, 2004, at the NF-III (GS-07, step 5 equivalency without locality)
pay level. Petitioner claims that this is a similar rate of pay that
he was receiving at the time of his termination and did not take into
account any of the longevity increases or cost of living increases that he
would have received had he not been terminated. Petitioner states that
he physically returned to work on September 6, 2005, and was compensated
at the similar NF-III rate that he had been paid when he was terminated.
However, petitioner claims that the agency failed to apply longevity or
cost of living increases.
Further, petitioner states that the agency used the wrong rate of pay
in calculating the benefits due to him. Petitioner claims that MTs
enter a two-year training and development program at the NF-III (GS-07,
step 5 equivalency without locality) pay level and after 12 months,
may be promoted to NF-IV (GS-09, step 1 equivalency without locality)
upon successful completion of the first year. Petitioner states that
effective April 1, 2004, he would have been paid at the GS-09 step 1
equivalency without locality, since this would have been twelve months
after entering the MT program.
Petitioner also claims that the pay rate of $15.29 per hour used for
interim relief effective July 6, 2004, was lower than his starting salary
on April 1, 2002, which was $15.35 per hour or $31,920.00 annually.
Petitioner claims that the rate of pay he received once returning to
the agency on September 6, 2005, was wrong. According to petitioner,
MTs enter the program at the NF-III (GS-07, step 5 equivalency without
locality) pay level, which he states was $16.60 per hour or $34,643.00
per year based on the salary table for 2005. Petitioner contends he
did not receive the correct rate of pay beginning with his reinstatement
and continuing until he left the agency on March 30, 2007.
With regard to gross back pay, petitioner contends that the agency
incorrectly calculated back pay. Petitioner includes his calculations
from 2002 through 2007. Petitioner claims the difference between
what he would have earned but for the retaliation and what he actually
earned for 2002 is $16,578.00, for 2003 is $34,768.00, and for 2004 is
$26,240.80 for a total of $77,586.80. Petitioner states the total amount
of $77,586.80 should be reduced by his outside income during the period,
which was $31,897.89, and $24,855.05, which he states is the money the
agency already paid him. Thus, complainant claims he is owed a total
of $20,833.86, for 2002, 2003, and 2004, plus interest from the date
the money should have been paid.
Petitioner also argues the agency incorrectly withheld health insurance
premiums of $2,268.66 from the back pay award. He contends withholding
these premiums penalizes him since it requires him to pay for a service
he did not receive. Petitioner also argues that prior to obtaining
replacement health insurance coverage, he incurred $4,000.00 to cover
out-of-pocket health care expenses after his termination. Petitioner
requests compensation for his uninsured expenses up to the amount the
agency would have contributed to his health insurance premiums.
Petitioner claims that since the agency failed to use the correct rate of
pay in calculating his back pay, it must recalculate the NAF retirement
contributions since such contributions are 1% of the employee's salary.
Petitioner also states it is unclear if the agency's NAF retirement
contributions were tax-deferred. Petitioner claims that the agency is
required to make retroactive tax-deferred contributions to his retirement
account for the relevant period. Moreover, petitioner claims he is
entitled to money the account would have earned during the relevant
period.
Furthermore, petitioner claims that he is entitled to retroactive 401(k)
contributions and claims the agency failed to allow him the opportunity to
retroactively elect to contribute to the agency's 401(k) plan. Petitioner
states he was told he would be eligible for the 401(k) plan after three
months of employment. He states that since he was terminated before
reaching the three-month anniversary, he was unable to contribute to the
plan. Petitioner contends had the agency not discriminated against him,
he would have become eligible for enrollment and he would have enrolled
in the plan. He notes that after his reinstatement, he enrolled in the
401(k) plan and contributed 4% of his salary, triggering the agency's
obligation to contribute an amount equal to 3% of his salary. Thus,
petitioner argues he should be permitted to make the 4% contributions
retroactively, and the agency should be required to contribute its 3%
match beginning July 1, 2002. Petitioner also requests the money the
account would have earned during the relevant period.
Additionally, petitioner argues that he is entitled to a bonus. He states
that the lodging manager at the duty station he was assigned to received
a bonus each year. He states in 2004, the bonus was between 1% and 4%
of the salary paid. He claims that make whole relief requires him to
receive all increases in pay, including bonuses, he would have received
during his tenure, had he not been terminated.
Petitioner contends that the interest on the back pay award must be
recalculated since he argues the amount of the back pay was incorrect.
Additionally, petitioner states that the agency erred in calculating
interest on the award from the January 13, 2005 date of the EEOC decision,
rather than from the date of the finding of discrimination in the AJ's
May 24, 2004 decision.
Petitioner claims the agency incorrectly calculated his pecuniary and
non-pecuniary losses. Petitioner acknowledges that he received a check
for $68,640.78 for the non-pecuniary damages, plus interest, on October
24, 2005. However, he claims that the agency improperly treated his
compensatory damages award like wages for tax purposes. Specifically,
he claims that the interest received on his non-pecuniary, compensatory
damage award is incorrect since the agency did not calculate interest
on the full $100,000.00 award, but instead on the net after-tax amount.
Moreover, petitioner states that the interest was improperly calculated
from the date of the January 13, 2005 EEOC decision, rather than the May
24, 2004 AJ decision. Similarly, petitioner contends that the interest
on the pecuniary damage award was not calculated correctly. Furthermore,
petitioner contends that since the agency failed to properly calculate
his damages, he was paid the wrong amount of interest and now requests
"interest on interest." Finally, petitioner requests an award of
attorney's fees.
Petitioner supplied a copy of an October 24, 2005 letter he received from
the agency purportedly accompanying a check in the amount of $19,061.61
in net back pay. The agency states the check represents gross back pay
in the amount of $59,021.60 minus pretax health premiums of $2268.66,
FITW of $6,263.37, Medicare taxes of $822.92, NAF retirement of $730.01,
and employer NAF retirement contributions of $2,464.82, for a net pay
of $48,936.64. The agency stated that the net pay of $48,936.64 was
reduced by petitioner's outside income during this period of $31,897.89,
resulting in payment, before interest, of $17,038.75. The agency stated
that with applicable interest complainant was entitled to $19,016.61 in
net back pay.
In response to petitioner's petition for enforcement, the agency
argues that the Commission's previous decision did not require the
agency to place complainant in an assistant lodging manager or lodging
manager position. The agency noted the Commission's order required
the agency to "offer reinstatement as a Lodging Management Trainee in
the management trainee program" at the point where he was removed or,
in the alternative, to place him in a GS-7, Step 5 in a position with
"substantially equivalent . . . duties, responsibilities, and benefits."
The agency states that it complied with the Commission's decision when
it placed petitioner back into the Management Trainee Program at the
Peterson Air Force Base (AFB) lodging office.
The agency also argues that the petition for enforcement was untimely
filed. The agency provides an affidavit dated November 7, 2006,
from the current Deputy Director of Services who states that the
Lodging Management Trainee Program is a two-year program which teaches
participants management aspects of lodging operations. The Deputy
Director of Services states that petitioner was reinstated to the MT
program on September 6, 2005. The agency argues that complainant should
have filed his claim of non-enforcement after he was placed back into
the Lodging Management Trainee Program, rather than almost a full year
after he returned to work.
ANALYSIS AND FINDINGS
At the outset, we address the agency's argument that petitioner's
petition was untimely filed. Specifically, we note that 29 C.F.R. �
1614.503(a) provides that "[a] complainant may petition the Commission
for enforcement of a decision issued under the Commission's appellate
jurisdiction. The petition shall be submitted to the Office of Federal
Operations. The petition shall specifically set forth the reasons that
lead the complainant to believe that the agency is not complying with
the decision." It appears petitioner first attempted to notify the
Commission of an issue regarding compliance in March 2005, prior to
the expiration of time for the agency to complete compliance with the
Commission's Order. Thereafter, petitioner submitted a September 1,
2006 second amendment to his petition and then an October 3, 2007 third
amendment to his petition. There is no reason to apply the doctrine of
laches in this appeal - complainant did not unduly sit on his rights.
Thus, we find petitioner's September 1, 2006 petition for enforcement
was timely filed with the Commission. We also address the arguments
made in his October 3, 2007 amendment.
Regarding petitioner's argument that the interim relief provided by the
agency was incorrect, we find that complainant is really challenging the
back pay calculations which are properly at issue in this petition and we
shall consider this in our analysis of the back pay award. We note that
in EEOC Appeal No. 07A40113 we addressed arguments made by complainant
about interim relief and we declined to dismiss the agency's appeal.
With regard to petitioner's claim that the agency failed to place
him in an assistant lodging manager or lodging manager position, we
find that such action was not required under the Commission's previous
decision. Rather, the Commission ordered the agency to offer petitioner
reinstatement as a Lodging Management Trainee in the management trainee
program or a substantially equivalent position of equal grade, pay,
duties, and benefits. Moreover, the Commission's decision specified
petitioner was entitled to relief assuming he had been employed as an
MT from June 17, 2002 (the date his termination was effective), through
April 1, 2004 (the date his MT training program would have ended). Despite
petitioner's arguments to the contrary, the Commission's order did not
require the agency to place him in a manager position following successful
completion of the MT program.
With regard to petitioner's claim that the agency failed to provide
him the full amount of back pay and benefits due to him, we are unable
to determine whether the agency has fully complied with our previous
decision. Specifically, petitioner claims that the agency used the
wrong salary in calculating back pay; incorrectly withheld $2,268.66
in health insurance premiums; failed to pay correct contributions
to his NAF retirement account; failed to allow him to contribute to
the agency's 401(k) plan; failed to pay him a bonus; and failed to
correctly pay pecuniary and non-pecuniary damages. In the absence of any
statement from the agency addressing the alleged errors by petitioner,
we can not determine from the current record if the agency has complied
with the Commission's order by paying the correct amount of back pay.
Although petitioner provided an October 24, 2005 letter he received from
the agency detailing a purported payment of $19,016.61 for net back pay,
there is no specific information provided showing the calculations and
assumptions made (such as salaries for gross pay and the method used
to deduct health insurance premiums) that led to the determination of
gross wages and deductions. Therefore, we shall remand the matter to the
agency to: address and resolve the alleged errors cited by petitioner;
to issue a new determination on the correct back pay amount; to issue
an explanation of how that amount was calculated including a response
to petitioner's specific arguments described in this paragraph; and
to issue an award of additional back pay and interest if appropriate.
Because we have not determined, at this point, that the agency has not
complied with our prior Order, we decline to award attorney's fees or
costs until such a determination is made.
ORDER
Within 60 days of the date this decision becomes final, the agency shall:
(1) Review and address petitioner's objections to the agency's
calculations of the back pay due pursuant to the Commission's Order in
EEOC Appeal No. 07A40113. The agency shall place specific evidence
in the record documenting how it determined the back pay, benefits,
and interest due complainant. Specifically, the agency shall indicate
how it determined petitioner's gross wages, outside earnings, FITW,
Medicare taxes, NAF retirement deductions, and the amount of the agency's
contributions to petitioner's NAF retirement account. The agency shall
pay petitioner any additional sums (including interest) due for back pay.
(2) Produce evidence that it has properly excluded petitioner from
participating in its 401(k) plan. Specifically, the agency shall
place evidence in the record indicating how many month(s) of service
was required before an employee during the relevant time frame was
permitted to enroll in the agency's 401(k) plan. If necessary, the
agency shall permit petitioner to enroll in the 401(k) plan and shall pay,
if necessary, any outstanding contributions to petitioner.
(3) Issue a new decision determining its compliance with the Commission's
Order in EEOC Appeal No. 07A40113.
A copy of the new agency decision on the issue of compliance and
explanation of how the agency calculated back pay and benefits as
described in paragraphs 1 and 2 of this Order must be sent to petitioner
and to the Compliance Officer as referenced herein.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K1208)
Compliance with the Commission's corrective action is mandatory.
The agency shall submit its compliance report within thirty (30) calendar
days of the completion of all ordered corrective action. The report shall
be submitted to the Compliance Officer, Office of Federal Operations,
Equal Employment Opportunity Commission, P.O. Box 77960, Washington,
DC 20013. The agency's report must contain supporting documentation,
and the agency must send a copy of all submissions to the 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 (M1208)
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 77960,
Washington, DC 20013. 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 (R0408)
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 (Z1008)
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:
June 4, 2009
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
__________________
Date
2
0420070001
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
9
0420070001