0120181464
08-31-2018
Cliff C,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Southern Area), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Cliff C,1
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Southern Area),
Agency.
Appeal No. 0120181464
Hearing No. 430-2015-00023X
Agency No. 1K-272-0003-14
DECISION
On September 28, 2017, Complainant filed an appeal claiming that the Agency failed to comply with its' July 5, 2017 final action on his EEO complaint which implemented the decision of an Equal Employment Opportunity Commission (EEOC) Administrative Judge (AJ) finding discrimination in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.
Under 29 C.F.R. � 1614.504, if a complainant believes that an agency has failed to comply with the terms of a final action, he shall notify the EEO Director in writing of the alleged noncompliance within 30 days of when he knew or should have known of the alleged noncompliance. The regulation states that the Agency shall resolve the matter and respond to the complainant in writing. Under the regulation, if the Agency has not responded to the complainant or if he is not satisfied with the Agency's attempt to resolve the matter, he may appeal to the Commission for a determination as to whether the Agency has complied with the terms of the final action. Complainant may file such an appeal within 35 days after he has served the Agency with the allegations of noncompliance but must file an appeal within 30 days of her receipt of the agency's determination. Id.
There is no indication in the record as to whether Complainant has provided the Agency with notification of his claim of noncompliance. In response to the appeal, the Agency provided the Commission with a copy of the complaint file including its compliance report regarding its implementation of the AJ's orders. While Complainant did not notify the Agency's EEO Director of the alleged noncompliance, we accept the appeal because the Agency has stated its position regarding the matters at issue, the parties have fully developed the record, and remanding the matters at issue would further delay implementation of remedies
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Maintenance Mechanic at the Agency's Greensboro Network Distribution Center in Greensboro, North Carolina.
On June 12, 2014, Complainant filed a formal complaint alleging that the Agency discriminated against him on the basis of race (Caucasian), color (white), sex (male), and national origin (American) when: on April 21, 2014, he became aware that he had not been selected for the position of Supervisor of Maintenance Operations.
The Agency accepted the complaint for investigation. Complainant requested a hearing before the AJ. Prior to the start of the hearing, the Agency conceded liability and the parties jointly stipulated to the facts in this case. As such, a hearing was held solely on the type and measure of damages.
Following the hearing, on June 7, 2017, the AJ issued her decision finding discrimination based on race and sex. As remedy, the AJ ordered the Agency to:
1. Pay Complainant $ 12,500 in compensatory damages;
2. Place Complainant in an open Supervisor of Maintenance position or similar position, at any facility within a reasonable commuting distance with retroactive placement to April 19, 2014.
3. Pay Complainant backpay including pay, overtime, or other benefits dating back to April 19, 2014.
4. Provide EEO training to the responsible management official.
5. Post a notice of the finding of discrimination
Complainant filed the instant appeal asserting that the Agency had calculated backpay and paid him the backpay he was owed. However, he noted that the Agency calculated the interest owed on the backpay but failed to provide him with the interest owed. Specifically, Complainant noted that the Agency calculated that it owed him $ 10,453.12 as gross pay. With interest, Complainant was owed a total of $11,649.35. Despite the Agency's own calculations, Complainant asserted that he was only paid $10,453.12.
In response to the appeal, the Agency provided a copy of the Agency's compliance report. The Agency showed that it paid Complainant the amount of compensatory damages ordered by the AJ. The Agency also indicated that Complainant was provided with a Notification of Personnel Action placing Complainant into the position in question effective April 19, 2014. The Agency provided the responsible management officials with training and posted the notice of the finding of discrimination.
As to the issue of backpay, the Agency indicated that Complainant was paid the gross amount of $ 85,292.15 minus his normal and customary deductions resulting in the net amount of $ 34,912.28. The Agency included documents showing Complainant's gross backpay and deductions for various items such as insurance, thrift savings loan payments, union dues, state taxes and pre-tax deductions. The Agency did not provide any additional information beyond the items and a sheet explaining the codes.
Upon review of the documents, we cannot find that the Agency provided Complainant with the interest on the backpay owed. Based on the Agency's own calculations it provided Complainant, he is still owed $ 1,196.23 in interest on the backpay owed Complainant.
After a review of the record in its entirety, including consideration of all statements submitted on appeal, it is the decision of the Commission to REMAND matter in accordance with the ORDER below.
ORDER
Within 30 days of the date this decision is issued, the Agency shall, to the extent it has not done so already, pay Complainant $ 1,196.23 as interest on the back pay it owed Complainant. The Agency is further directed to submit a report of compliance, as provided in the statement entitled "Implementation of the Commission's Decision." The report shall include supporting documentation of the Agency's payment of interest on the backpay calculations due Complainant, including evidence that the corrective action has been implemented. If the Agency has provided Complainant with the interest payment, the Agency shall provide proof of the payment to the Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0617)
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 in the digital format required by the Commission, and submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. � 1614.403(g). 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 (M0617)
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. A party shall have twenty (20) calendar days of receipt of another party's timely request for reconsideration in which to submit a brief or statement in opposition. See 29 C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9 � VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. Complainant's request may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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 agency's request must be submitted in digital format via the EEOC's Federal Sector EEO Portal (FedSEP). See 29 C.F.R. � 1614.403(g). 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 (R0610)
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 (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant's Right to File a Civil Action for the specific time limits).
FOR THE COMMISSION:
______________________________ Carlton M. Hadden's signature
Carlton M. Hadden, Director
Office of Federal Operations
August 31, 2018
__________________
Date
1 This case has been randomly assigned a pseudonym which will replace Complainant's name when the decision is published to non-parties and the Commission's website.
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