0120130001
08-26-2014
Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Pacific Area), Agency.
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Pacific Area),
Agency.
Appeal No. 0120130001
Agency No. 4F-956-0123-99
DECISION
On September 21, 2012, Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from a final Agency decision (FAD) dated August 13, 2012, finding that the Agency complied with the EEOC's order in Fong v. United States Postal Service, EEOC Appeal No. 01A00111 (April 4, 2002). The Commission deems the appeal timely and accepts it pursuant to 29 C.F.R. � 1614.405(a).
BACKGROUND
At the time of events giving rise to a August 16, 1999, settlement agreement, which gave rise to later EEOC's enforcement orders, Complainant worked delivering mail in the Agency's Sacramento, California District. Complainant retired on disability effective in October 2008, according to an Agency document.
The settlement agreement provided, in relevant part, that Complainant would be allotted five days of advanced sick leave.
In EEOC Appeal No. 01A00111, the EEOC ruled that the Agency breached the settlement agreement by not giving all the advanced sick leave agreed to, and ordered the Agency to "specifically enforce" the settlement agreement by providing Complainant eight hours of advanced sick leave. Complainant filed a request for reconsideration, which was denied in EEOC Request No. 05A20780 (Aug. 6, 2002) and reiterated the above order. Years later, Complainant filed a petition for enforcement. In EEOC Petition No. 042008006 (Dec. 16, 2010), the EEOC determined that the Agency did not comply with its previous orders. The EEOC ordered the Agency, within 30 days of receipt of the decision, to provide Complainant with eight hours of advanced sick leave pursuant to our order in EEOC Appeal No. 01A00111, request for reconsideration denied, EEOC Request No. 05A20780.
Thereafter, the Agency issued Complainant a check dated April 1, 2011, for $90, which was for eight hours of pay, with deductions for taxes and $14.55 for his Thrift Savings Plan. The total gross wages were $145.50.
Complaining that the Agency harassed a letter carrier by having him hand deliver the check to him without postage, that $90 did not equal eight hours of pay, and that the check was torn, Complainant returned to check to the letter carrier. The Agency acknowledged to Complainant in writing in June 2011 that it received the returned check.
In its FAD, the Agency found that it was in compliance with the order in EEOC Appeal No. 01A00111. It found that the check to Complainant represented pay for eight hours of sick leave, with deductions. The Agency found that the check only had a small scrape, was readable, and could have been cashed. It instructed Complainant that if he wanted to accept payment to contact the Agency and it would reissue the check.
On appeal Complainant writes that he wants his complaint to be reinstated and that he previously requested this on numerous occasions. He has sent some documentation of this to the EEOC. Complainant avers that the check did not have a small scrape but was torn in half and he has not received a replacement check. Complainant argues that the Agency did not comply with the EEOC's order within 30 days, as directed. He argues that the Agency should not have made a deduction for his Thrift Savings Plan since his account therein was no longer active. Complainant complains that he received a Wage and Tax Statement, W-2, even though he returned the check, and asks that the Agency contact the Internal Revenue Service verifying that he returned the check.
Complainant also makes arguments unrelated to the compliance issue herein -- that because his last day in pay status was on April 30, 2007, the Agency should not have issued him a W-2 for 2008, and that it withheld his overpaid health premium of $47.05 in 2008 or before.
ANALYSIS AND FINDINGS
Complainant asks that his complaint be reinstated. In our previous orders we directed the Agency to specifically enforce the settlement agreement. We did not order it to reinstate the complaint, even though we had discretion to do so. Because of Complainant's retirement, the Agency tried to comply with the EEOC's order by paying Complainant the cash value of his missing eight hours of advanced sick leave, which constitutes back pay. Complainant is not claiming that he would prefer the eight hours of sick leave to be added to his employment account.
While the Agency did not deliver the check to Complainant within the 30 days set forth in the order, it did so within sufficient time that we find it substantially complied with the time limit in the order, which did not anticipate the issuance of a check.
We decline to order the Agency to reinstate Complainant's complaint since this would go beyond our previous orders and because the Agency's good faith attempt to comply with our order in EEOC Petition No. 0420080006. While this is based on the above, we add that given the age of Complainant's complaint, which is at least 15 years old, it is highly likely that processing it would present tremendous hurtles in gathering documents and/or evidence.
The parties dispute the condition of the check. The Agency offered to reissue Complainant the check, at his request. While Complainant complains the Agency did not reissue the check, he does not contend that he made a request to the Agency to do so. Nevertheless, we will order the Agency to issue another check to Complainant for the eight hours of back pay, with modifications explained below.
Complainant complained that the check did not equal eight hours of pay. The Agency countered that the check reflected required deductions. Documentation Complainant submitted (a September 1999 paystub) to an EEOC Compliance Officer shows that the April 2011 eight hour back pay payment was his September 1999 rate of pay. This was when the settlement agreement was signed. Documentation also shows this back pay should be retroactive to August 19, 1999, the last day Complainant was scheduled to take the advanced sick leave. Given the substantial delay in payment, we find it should have been made with interest to make it equal in value to what Complainant was promised in the settlement agreement. Accordingly, requiring interest does not go beyond our order that the Agency specifically enforce the settlement agreement.
Complainant argues that the Agency should not have made a deduction for this Thrift Savings Plan because his account there was inactive. Because this was Complainant's account, he is in the best position to obtain evidence on whether or not the deduction arrived in his account, and must cooperate with any Agency efforts to track down if it did so. If not, the Agency must include this amount in its repayment to Complainant.
Complainant argues that the Agency must contact the Internal Revenue Service verifying that the check was returned. But he can use the Agency's June 23, 2011, letter to him, the August 13, 2012, FAD, and this decision which all document this fact.
We will not address Complainant's arguments regarding receiving a W-2 in 2008 and his overpaid health premium of $47.05 because these matters are not before us. They are unrelated to the EEOC's prior orders and the FAD.
The FAD is MODIFIED. On remand, the Agency shall comply with the order below.
ORDER
The Agency shall pay Complainant eight hours of back pay for advanced sick leave he would have used on August 19, 1999, with interest pursuant to 29 C.F.R. � 1614.501, no later than sixty (60) calendar days after the date this decision becomes final. The interest shall be from August 19, 1999, to April 1, 2011, the date the check was issued the check which Complainant returned. The Complainant shall cooperate in the Agency's efforts to compute the amount of back pay with interest, and deductions, and shall provide all relevant information requested by the Agency. If there is a dispute regarding the exact amount of back pay with interest and deductions, the Agency shall issue a check to the Complainant for the undisputed amount within sixty (60) calendar days of the date the Agency determines the amount it believes to be due.
If Complainant wishes to recover the $14.55 deduction the Agency made for his Thrift Savings Plan in back pay check which he returned, he must notify the Agency of this and cooperate with its efforts to track down whether the payment arrived in his Thrift Savings Plan Account. If the deduction did not arrive in his account, the Agency shall pay include the $14.55 as part of the back pay.
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 calculation of back pay with interest and deductions, including evidence that the corrective action has been implemented.
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.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 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 (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
August 26, 2014
__________________
Date
2
0120130001
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120130001