0420100001
07-23-2010
Carolyn R. Gray, Petitioner, v. Robert M. Gates, Secretary, Department of Defense, (Defense Commissary Agency), Agency.
Carolyn R. Gray,
Petitioner,
v.
Robert M. Gates,
Secretary,
Department of Defense,
(Defense Commissary Agency),
Agency.
Petition No. 0420100001
Appeal No. 0720080022
Agency No. 04-EA-HG-017
Hearing No. 120-2004-00619X
DECISION ON A PETITION FOR ENFORCEMENT
On October 8, 2009, the Equal Employment Opportunity Commission (EEOC or
Commission) docketed a petition for enforcement to examine the enforcement
of an Order set forth in Carolyn R. Gray v. Department of Defense, Appeal
No. 0720080022 (December 12, 2008). 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 above order.
BACKGROUND
Petitioner was hired for the Agency's Little Creek Commissary store out
of Norfolk, Virginia, effective June 30, 2003, as a Commissary Support
Clerk (CAO). In Gray v. Department of Defense (Defense Commissary
Agency), EEOC Petition No. 0720080022 (December 12, 2008), Petitioner
claimed she was discriminated against in violation of Section 501 of
the Rehabilitation Act of 1973, as amended, 29 U.S.C. � 791 et seq. and
Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. �
2000e et seq. The Commission found that Petitioner was discriminated
against in reprisal for prior EEO activity when she was not reasonably
accommodated from sometime after late July 2003 to on or about October
19, 2003; her telephone usage was restricted; she was monitored; and
she was terminated effective November 17, 2003, for misconduct.
The Commission ordered, in relevant part, that the Agency:
1. ...offer to retroactively reinstate Petitioner, effective November 17,
2003, to the position of Commissary Support Clerk (CAO), at the Little
Creek Commissary in Norfolk, Virginia,1 or another position agreeable
to the parties;
2. expunge all references of the termination from Petitioner's official
personnel file (OPF);
3. restore any leave taken as a result of the discrimination;
4. pay back pay, with interest and other benefits retroactive to November
17, 2009...pursuant to 29 C.F.R. � 1614.501...; and
5. consider taking disciplinary action against those responsible for
the discrimination against Petitioner.
In January 2009, the Agency offered Petitioner the position of Store
Associate, GS-1101-4, at its Langley Air Force Base Commissary (which is
located in Hampton, Virginia).2 Petitioner accepted the position with a
start date of January 12, 2009. On behalf of Petitioner, prior to her
starting, the union local Vice President talked to the Store Director
and was told Petitioner's duties would be administrative only, i.e.,
training so she could fill in when needed for the duties of secretary,
supply technician, and time keeper.
On March 19, 2009, the Store Director and the local union Vice President
signed a paper indicting that in accordance with the Commission's order
Petitioner was being placed at the Langley Air Force Base Commissary as
a Store Associate, with duties limited to the administrative sections of
the store in a support role for the administrative office, which would
accommodate her prior on-the-job injury at the Little Creek Commissary.
In a letter dated April 9, 2009, the Store Administrator represented
that since starting work, Petitioner worked in the administrative office
and a few times in the cash office, and assisted a supply technician
and secretary, as applicable, with filing, copying, faxing, typing,
organizing folders, answering the telephone, assisting employees and
customers, and was training for timekeeping in payroll. According to
the Agency's attorney representative, the Store Director departed and
a successor Store Director took over on March 29, 2009.
By letter dated May 11, 2009, the successor Store Director advised
Petitioner that her current duties were only temporary, that she was not
performing the full duties of Store Associate, and he needed medical
information on her limitations for management to consider continued
accommodation and appropriately identify duties for her. In a letter
to her Congressman dated June 22, 2009, Petitioner wrote that on May 27,
2009, she was involuntarily reassigned to her old position of Commissary
Support Clerk (CAO), which she could not perform. In a letter to
Petitioner that was copied to the Commission, the Agency wrote that
Petitioner was asked as a Store Associate to perform the identical duties
she was formerly assigned, has not been asked to perform anything more
than her former position description required, but she contended that
she could only do administrative duties, and the Agency had no such
position available.
Petitioner does not dispute that all references to her removal were
expunged from her OPF, but contends other documents which should not
have been expunged are missing. She writes that she was told her OPF
was destroyed and had to be rebuilt.
In its compliance report, which the Agency copied to Petitioner and her
attorney, the Agency avers that it provided Petitioner all leave owed
and back pay with interest and other benefits. In support of leave, the
compliance report has a "Master Leave History," which we are unable to
decipher. In support of back pay wages and other benefits, it contains a
"Master Pay History," which we are largely unable to decipher. It also
contains spreadsheets showing from pay period ending November 29, 2003
though February 16, 2008, on a bi-weekly basis the hourly rates and hours
(64 hours every two weeks) at which back pay was calculated, as well as
deductions for life and health insurance. An email in the compliance
report indicates that the spreadsheets do not contain the amounts used
to offset Petitioner's outside earnings of $81,330, nor interest paid
of $7,212.54.
In a June 11, 2009, email that was forwarded to the Commission's
Compliance Officer on this case, the Agency's Supervisory Financial
Analyst/Payroll wrote that the Agency restored 333 hours of sick leave
and 539 hours of annual leave to Petitioner. She wrote that for the pay
periods ending November 29, 2003 through February 16, 2008, including the
$7,212.54 interest payment and offset of $81,330 (and Petitioner's regular
pay for March 28, 2009), Petitioner's gross pay was $22,401.01, and her
net pay was $18,894.62, after taxes and deductions. She wrote that for
the pay periods ending March 1, 2008 though January 3, 2009, and including
25.50 hours of retroactive pay and Petitioner's pay for pay period ending
March 14, 2009, Petitioner's gross pay was $23,234.81, and her net pay
after taxes and other deductions was $12,393.38. The record does not
indicate that this email was sent to Petitioner or her representative.
The Agency orally counseled Petitioner's former grocery manager, her
lead, had her sign a memo acknowledging such, and verbally admonished
Petitioner's former Store Director about his actions with Petitioner.
CONTENTIONS ON PETITION
In her June 1, 2009, petition, Petitioner contends that she accepted the
position of Store Associate at the Langley Commissary because she was
told her former position had been abolished. She contends that the Store
Director agreed that her duties would be restricted to the administrative
section of the store in a support role for the administrative office,
and this was memorialized in writing on March 19, 2009. She writes
that the successor Store Director violated this, and on May 27, 2009,
informed her that effective June 8, 2009, she was being changed to a
Commissary Support Clerk (CAO). Petitioner writes that in accordance
with the Commission's order, she only agreed to be a Store Associate,
and asks to be reinstated to that position with administrative duties
as agreed on March 19, 2009.
The Agency counters that on January 9, 2009, human resources offered
Petitioner the position of Store Associate at the Langley Commissary,
and she accepted. It argues that duties of Store Associate are nearly
identical to those Petitioner performed in her former position, and she
has not been asked to do anything more than her former position required.
It argues that due to her present medical condition, Petitioner now
claims she can only perform administrative duties, but no such position
is available. The Agency refers to a letter its former attorney sent
to Petitioner's union attorney contending that they were the designated
representatives and the Store Director and the union Vice President
had no authority to sign the March 19, 2009 paper. The former Agency
attorney argued that in compliance with the Commission's order, the Agency
offered Petitioner the position of Store Associate, which she accepted,
and that her former position had been abolished.
Petitioner contends that documents which should not have been removed from
her OPF have been expunged. She also argues that a SF-50 Notification
of Personnel Action, which was a reconstruction of her June 30, 2003,
appointment at the Little Creek Commissary, incorrectly has an effective
date of January 4, 2009, rather than June 30, 2003; incorrectly has
a service comp. date of June 4, 1995, rather than September 14, 1992;
and an education level of 04 INST-HI DEG-YR rather than 07. She writes
that she did not get her service pin and certificate for 10 years of
federal government service.
Petitioner argues that the Master Leave History does not explain how
sick and annual leave were calculated, and she believes she is still
owed at least 43 hours of additional annual leave. She asks that the
Agency provide a detailed calculation worksheet explaining how sick and
annual leave were calculated.
Petitioner writes that for the pay period ending March 14, 2009, her
earnings and leave statement reflects retroactive earnings of $22,251.33
for 1,497.50 hours of back pay for pay periods ending March 1, 2008
through December 20, 2008. She contends that she was entitled to holiday
premium pay for holidays she would normally have been scheduled to work.
Petitioner writes that the Agency provided no clear explanation of
how interest on back pay was calculated, and also asks for a detailed
calculation of how her back pay was calculated.
Petitioner writes that while the Agency retroactively paid $9,489.16
for health benefits from 2003 through 2008, she still has approximately
$44,000 in medical bills which were not paid. She writes that when she
submitted medical bills to the health insurance company they were denied
on the grounds that they were received past the contracted filing date.
She argues this is a compliance issue with back pay and other benefits.
She requests compensation for the medical bills with interest.3 In
opposition to the petition, the Agency argues that the claim for
unpaid medical bills is unsupported by an affidavit from Petitioner,
and they should be filed with her insurance company through the Federal
Health Benefits (FEHB) program. The Agency argues that it retroactively
restored Petitioner's medical benefits making appropriate payments for
them, and if she believes her claims were inappropriately denied she
should appeal the denials with her insurance carrier. It argues it has
no authority to approve or disapprove claims for medical benefits.
Petitioner argues that the Agency did not take sufficient disciplinary
action against the Agency officials who discriminated against her.
ANALYSIS AND FINDINGS
The Commission ordered the Agency to retroactively reinstate Petitioner
to the position of Commissary Support Clerk (CAO) at the Little Creek
Commissary or another position agreeable to the parties. Agency human
resources offered Petitioner the position of Store Associate at the
Langley Commissary, and Petitioner accepted. It is unclear whether
the union Vice President talked to the Store Director before or after
Petitioner accepted the position. There is no question, however, that the
Store Director only intended to give Petitioner office type administrative
duties, and memorialized this in writing on March 19, 2009, shortly before
departing, indicating it was in accordance with the Commission's order and
to accommodate Petitioner. Petitioner was already working as such since
January 12, 2009, and gave no consideration in exchange for this writing.
We find that the Agency's placement of Petitioner in the position of
Store Associate complies with the Commission's order.4 The position
was agreeable to the parties. Sometime after the successor Store
Director arrived, he expressed that he wanted to assign Petitioner
different Store Associate duties, and according to Petitioner, decided
to assign her to her former position of Commissary Support Clerk (CAO).
Petitioner does not dispute the Agency's contention that the duties of
Store Associate are nearly identical to those Petitioner performed in
her former position and she has not been asked to do anything more than
her former position required. Her contention that the Store Director
decided to assign her to the position of Commissary Support Clerk (CAO)
is consistent with this. Placing Petitioner in this position (regardless
of its official title) is consistent with and substantially complies with
the Commission's order, even if this was not agreeable to Petitioner.5
Petitioner's claim about missing documents in her OPF is not addressed
by the Commission's order, and hence we do not address the matter.
The SF-50 Notification of Personnel Action, which was a reconstruction
of her June 30, 2003, appointment at the Little Creek Commissary, was
approved for processing on January 15, 2009. We agree that it should
reflect an effective appointment date of June 30, 2003, since this is
when Petitioner was appointed to the Little Creek Commissary, not January
4, 2009. This will be addressed in the Order, below. We find that the
SF-50's recording of a Service Comp. date of June 4, 1995, and education
level of 04 INST-HI DEG-YR, comply with the Commission's Order because
they are an exact match with the SF-50 Notification of Personnel Actions
for Petitioner's hiring and termination at the Little Creek Commissary.
If Petitioner believes these SF-50 fields are inaccurate, she should
address this using another avenue. On Petitioner's request for a 10 year
service pin, we find that the Commission's order that she be provided
back pay with benefits pursuant to 29 C.F.R. � 1614.501
does not require an award that merely honors tenure with the Agency,
but has no other value.
It is the Agency's obligation to ensure that its back pay calculations
are clear, including calculations of interest on back pay. Daniel
v. Tennessee Valley Authority, EEOC Petition No. 0420070004, 2006 WL
3832943 (December 19, 2006). The compliance report contains a "Master
Leave History" that is independently undecipherable. Petitioner asks for
a detailed calculation worksheet that explains how the Agency calculated
the restoration of her sick and annual leave. She is entitled to this.
She requests the same for back pay and interest.
While the Agency provided spreadsheets showing how back pay was calculated
for pay periods ending November 29, 2003 though February 16, 2008,
it does not explain how it calculated an offset of $81,330 in outside
earnings, and we cannot decipher how interest on back pay was calculated.
We note that some outside earnings can be offset, while others should
not be.6 The Agency, with the exception of deductions for health and
life insurance on the spreadsheets, also did not show how it calculated
regular deductions.
Petitioner is entitled to back pay calculations from the Agency that
will permit her to independently determine, to the extent reasonably
feasible,7 whether the Agency properly calculated back pay and interest.
The order below will require this so Petitioner will have an opportunity
to review the calculations and challenge alleged errors.
Nevertheless, based on the record, there are some back pay matters that
can be resolved now. On life insurance, 5 U.S.C. � 8706(e) provides:
If the insurance of an employee stops because of separation from the
service or suspension without pay, and the separation or suspension
is thereafter officially found to have been erroneous, the employee is
deemed to have been insured during the period of erroneous separation
or suspension. Deductions otherwise required by section 8607 of this
chapter shall not be withheld from any back pay awarded for the period
of separation or suspension unless death or accidental dismemberment of
the employee occurs during such period.
Therefore, the Agency incorrectly deducted life insurance premiums
from Petition's back pay. Wrigley v. United States Postal Service,
EEOC Petition No. 04950005, 1996 WL 77400 (February 15, 1996).
With regard to the question of back pay, when a finding of discrimination
has been made, an agency is required to make the individual whole by
placing her "as near as may be, in the situation he would have occupied
if the wrong had not been committed." Albemarle Paper Co. v. Moody,
422 U.S. 405, 418-419 (1975). Accordingly, an appellant is entitled to
premium pay for holidays she would have worked but for the discrimination.
Carney v. Department of Veterans Affairs, EEOC Petition No. 04970018,
1998 WL 91964 (1998). The order below will address this.
With the exception of arguing that she did not receive premium pay for
holidays, Petitioner does not dispute the rates of pay or hours (64
hours every two weeks) on the Agency back pay calculation spreadsheets
covering pay period ending November 29, 2003 though February 16, 2008.
Accordingly, we find the hourly rates of pay and hours Petitioner would
have worked, with the exception of holiday premium pay, are as set out
thereon. Further, since Petitioner does not contend her hours would
have changed during the back pay period, we find it is proper for the
Agency to calculate Petitioner's hours as 64 every two weeks during the
entire back pay period.
Health insurance premiums are included in an award of back pay.
Williams v. Department of the Navy, EEOC Appeal No. 01A01421, 2002
WL 1426292 (June 19, 2002). To be made whole, an individual must be
placed in he same position regarding his share of the medical costs as
nearly as possible to the situation she would have been in if she was
not unlawfully terminated. Huyck v. Department of Defense (Department
of Defense Dependents Schools), EEOC Appeal No. 01952015, 1997 WL 690256
(October 31, 1997). Applying this principal, the Commission found that
if the appellant would have received a higher reimbursement rate for
medical expenses under the government provided insurance policy than
his private insurance, the agency was obligated to reimburse him for
the difference in the amounts of reimbursements between the private and
government provided insurance policies. Id.
An award of back pay should compensate a prevailing complainant for loss
of health insurance coverage by either: (1) reimbursing her for health
insurance premiums paid to continue in an agency-sponsored insurance
plan or to secure alternate coverage; or (2) paying her for uninsured
medical expenses incurred during the relevant period up to the amount
the agency would have contributed to her health insurance premiums.
Wrigley v. United States Postal Service, EEOC Petition No. 04950005,
1996 WL 77400 (February 15, 1996).
While an appellant may seek reimbursement of her uninsured medical
expenses for a portion of the back pay period while also seeking
reimbursement for paid health insurance premiums during another portion
of her back pay period, we note that an appellant is not entitled to
reimbursement of both her uninsured medical costs and her paid health
insurance premiums during the same period. Accordingly, during the
period when an individual did not have any health insurance coverage,
she would be entitled to her uninsured medical costs. In addition,
during the period when an appellant paid for her own health insurance,
she could seek reimbursement for the health insurance premiums.
Dropka v. United States Postal Service, EEOC Appeal No. 01A12087, 2002 WL
31781275 (December 6, 2002). The Commission has ordered agencies to pay
medical expenses incurred due to the loss of health insurance coverage.
Dropka v. United States Postal Service, EEOC Petition No. 0420060010,
2007 WL 1393637 (May 3, 2007), Lang v. Department of Veterans Affairs,
EEOC Appeal No. 0120081699, 2009 WL 1529529 (May 22, 2009).
Petitioner writes that when she submitted medical bills to the health
insurance company they were denied on the grounds that they were received
past the contracted filing date. Applying the above principals, we
find that Petitioner is entitled to reimbursement for medical expenses
that were denied by her FHBP insurance for being received beyond the
contracted filing date, to the amount they would have been reimbursed
if they were timely filed, so long as she acted with due diligence in
filing her medical expense claims with the insurance company and acted
with due diligence in pursing reimbursement. The reimbursement amount
is not limited to what the Agency paid in premiums since denial on the
grounds of late filing, so long as Petitioner acted with due diligence, in
effect means she was not secured retroactive insurance (even though it was
paid for). Further, for the period the Agency secured health insurance
which was not actually active, Petitioner is entitled to reimbursement
of the deductions from her health insurance premiums. The record does
not show that Petitioner had or used alternate health insurance, but if
she did, the Agency should apply the above legal principals.
Petitioner is entitled to interest on additional out-of-pocket medical
expenses she incurred, if any, which occurred as a result of any alternate
health insurance reimbursing at a lower rate than what her FHBP would have
covered. Huyck v. Department of Defense (Department of Defense Dependents
Schools), EEOC Appeal No. 01952015, 1997 WL 690256 (October 31, 1997).
Petitioner contends that the Agency did not take sufficient disciplinary
action against the Agency officials who discriminated against her.
The Commission's order directed the Agency to consider discipline, and
the record shows it did so. Accordingly, the Agency complied with this
portion of the Commission's order.
The Agency is out of compliance with portions of the Commission's Order.
The Agency shall take the actions below.
ORDER
The Agency is ordered to take the following remedial actions:
1. To the extent it has not already done so, the Agency shall
complete a SF-50 Notification of Personnel Action, superseding the
prior reconstruction SF-50, reflecting an effective appointment date
of June 30, 2003, at the Little Creek NAB Commissary, and place it in
Petitioner's OPF;
2. The Agency shall reimburse Petitioner for all life insurance premiums
it deducted from her back pay;
3. To the extent Petitioner would have earned holiday premium pay had
she not been terminated, the Agency shall add this to her back pay,
with interest;
4. The Agency shall provide Petitioner and her representative with a
detailed accounting of how it calculated the restoration of Petitioner's
annual and sick leave, wage back pay, and all deductions (except
deductions for outside earnings) on a pay period to pay period bases;
5. The Agency shall provide Petitioner with a detailed breakdown of the
$81,330 in outside earnings it deducted from her back pay;
6. The Agency shall provide Petitioner with the formula it used to
calculate interest on back pay, the regulation and interest rate(s)
it used, and the amount of back pay on which interest was paid;
7. The Agency shall complete the actions in above items 4, 5 and 6 within
90 calendar days after the Agency's receipt of this decision in a way
that can readily be understood by a person not familiar with Agency,
governmental, or private payroll or human resource systems; and
8. The Agency shall conduct a supplemental investigation on Petitioner's
claim that medical expenses were not paid as a result of her loss of her
FEBH insurance. The Agency shall offer to assist Petitioner in filing
her medical expenses incurred during the back pay period with her FEBH
insurance, including assisting her with how to file retroactive claims
and making the retroactive insurance active in practice. After giving
the FEBH insurance a reasonable amount of time to process the claims,
the Agency shall pay the medical expenses that were denied by her FHBP
insurance for being received beyond the contracted filing date, to
the amount they would have been reimbursed if they were timely filed,
so long as Petitioner acted with due diligence in filing her medical
expense claims with the insurance company and acted with due diligence
in pursing reimbursement.8
After receiving the calculations referenced in items 4, 5, 6 and 7,
of this order, Petitioner shall make written requests to the Agency's
attorney representative on this case for further clarification, if
necessary, and identify calculation errors, if any, in writing to
the Agency's attorney representative on leave, back pay and interest
calculations, if any.9 The parties shall then endeavor to resolve these
matters.
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 all the
actions ordered above, and be copied with all attachments to Petitioner
and her representative.
ATTORNEY'S FEES (H0610)
If complainant has been represented by an attorney (as defined by 29
C.F.R. � 1614.501(e)(1)(iii)), she is entitled to an award of reasonable
attorney's fees incurred in the processing of the complaint. 29 C.F.R. �
1614.501(e). The award of attorney's fees shall be paid by the Agency.
The attorney shall submit a verified statement of fees to the Agency --
not to the Equal Employment Opportunity Commission, Office of Federal
Operations -- within thirty (30) calendar days of this decision becoming
final. The Agency shall then process the claim for attorney's fees in
accordance with 29 C.F.R. � 1614.501.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0610)
Compliance with the Commission's corrective action is mandatory.
The Agency shall submit its compliance report within thirty (30) calendar
days of the completion of all ordered corrective action. The report shall
be submitted to the Compliance Officer, Office of Federal Operations,
Equal Employment Opportunity Commission, P.O. Box 77960, Washington,
DC 20013. The Agency's report must contain supporting documentation,
and the Agency must send a copy of all submissions to the 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.
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S0610)
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. If you
file a request to reconsider and also file a civil action, filing a civil
action will terminate the administrative processing of your complaint.
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
July 23, 2010
__________________
Date
1 The record in EEOC Petition No. 0720080022, shows that the store was
physically located in Virginia Beach, Virginia.
2 We note that the Langley Air Force Base Commissary is significantly
closer to Petitioner's residential address than the Little Creek
Commissary.
3 Petitioner indicated that the Department of Labor, Office of Workers'
Compensation Programs (OWCP) pays medical bills related to her prior
on-the-job injury at the Little Creek Commissary, but not unrelated
bills which she was submitting.
4 Petitioner does not raise the location of the Commissary as an issue.
5 Petitioner alleges that since her return the agency ceased reasonably
accommodating her alleged disability and repeatedly retaliated against
her. These are new claims that are unrelated to compliance with the
Commission's prior order. The record reflects that Petitioner has
filed an EEO complaint, which the Agency characterized as alleging she
was discriminated against based on disability, race and reprisal, as
applicable, when, among other things, on April 3, 2009, she was taken out
of her administrative position; her job duties were changed on May 27,
2009; the Store Director requested medical information; she was given
work outside her medical restrictions; and she received a letter by the
Store Director dated September 17, 2009, that he could not accommodate
her and was sending her home.
6 For example, while unemployment compensation may not be deducted from
a back pay award, Department of Labor, Office of Workers' Compensation
(OWCP) wage loss compensation can be deducted. McCann v. Department
of the Air Force, EEOC Petition No. 04990041, 2000 WL 1616326 (October
20, 2000) (unemployment compensation must not be ducted from back pay),
Perez v. United States Postal Service, EEOC Petition No. 04A40041, 2005
WL 578595 (March 3, 2005) (may deduct wage loss workers' compensation
benefits).
7 The Commission recognizes that precise measurement of back pay
cannot always be made, and inherently involves a degree of speculation.
Uncertainties in the back pay determination should be resolved in the
favor of the Petitioner. Sanders v. United States Postal Service,
EEOC Petition No. 04990018, 2001 WL 427467 (April 23, 2001).
8 The Agency may, if it chooses, make these payments to the health care
providers or bill collectors, as appropriate. Also, while the record does
not show that Petitioner had or used alternate health insurance during
the back pay period, if she did and would have had less out-of-pocket
medical expenses with FEBH insurance, the Agency shall make payment
for the increased out-of-pocket expenses to Petitioner, with interest,
to the extent Petitioner already paid them. To the extent she did not
pay such out-of-pocket expenses, the Agency may, if it chooses, make
these payments directly to the health care providers or bill collectors,
as appropriate.
9 We have already determined, however, that the hourly rates of pay
and hours Petitioner would have worked (64 every two weeks), with the
exception of holiday premium pay, are accurately set forth in back pay
calculation spreadsheets in the compliance report covering pay period
ending November 29, 2003 though February 16, 2008. Further, we find
that Petitioner would have worked 64 hours every two weeks during the
entire back pay period.
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0420100001
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0420100001