DeeAnn Otis-Foster, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionMar 19, 2003
01A13860 (E.E.O.C. Mar. 19, 2003)

01A13860

03-19-2003

DeeAnn Otis-Foster, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.


DeeAnn Otis-Foster v. United States Postal Service

01A13860

03-19-03

.

DeeAnn Otis-Foster,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service,

Agency.

Appeal No. 01A13860

Agency No. 4J-606-0173-99

Hearing No. 210-99-6625X

DECISION

INTRODUCTION

On February 28, 2001, complainant initiated an appeal from the agency's

final order concerning her equal employment opportunity (EEO) complaint of

unlawful employment discrimination in violation of Title VII of the Civil

Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq.

The appeal is accepted pursuant to 29 C.F.R. � 1614.405.

ISSUE

The issue presented is whether the record adequately establishes that

the agency awarded complainant the correct amount of back pay and

interest due.

BACKGROUND

After a hearing, an EEOC Administrative Judge (AJ) found that complainant

was discriminated against based on retaliation, when (1) on April 12,

1997, an agency official questioned her about her EEO activity; and

(2) on May 7, 1999, the agency terminated her casual appointment.<1>

In his decision, the AJ stated that but for the retaliation of the

agency, complainant would have been rehired as a casual employee at the

subject facility in May 1999. As a result, the AJ ordered the agency,

in relevant part, to pay complainant �equal to the average of the pay

received by the three casual employees rehired by the agency at the

subject facility starting on or about May 1999 for the average duration

of their employment, with interest, and all benefits she would have

received had she been rehired as a casual employee.�

Although the AJ specifically indicated that May 1999 was the date

complainant would have been rehired, and would therefore be the date

to begin the back pay calculation, the check statement accompanying

complainant's back pay award shows that this award was calculated starting

November 1999 through October 2000.

The agency also found that complainant's retroactive gross pay during

the back pay period was $4,347.23. Its payment to her was based on

gross pay less $1,549.78 in retroactive contributions during the back

pay period for social security, medicare, and federal tax. The agency

issued a check to complainant in the amount of $2,797.45.

Complainant's sole argument on appeal is with regard to the number

of hours she was retroactively paid. The back pay award was based

on a total of 1436 base hours, with 916 night differential hours.

Complainant asserts that agency officials never made her aware that

her signature was required on any of the forms the agency sent her in

the process of calculating the back pay award in order to contest the

amount of hours on which the check was based. Upon inquiry with the

agency's Accounting Office for an explanation of deductions from her

back pay check, complainant was informed that an agency official should

have reviewed the back pay award amount with her and that complainant's

signature was a requirement as to whether she agreed with the amount

awarded. Complainant asserts this never transpired.

The record contains a twenty-page packet containing various documents

with titles including, �Back Pay Hours Tabulation� and �Back Pay

Decision/Settlement Worksheet� (Back Pay Worksheet). The remaining pages

contain �Notification of Personnel Action� of three other employees,

and various other brief and indecipherable computer generated Form

50s concerning these employees. The Back Pay Worksheet states �not

available� where complainant's signature was required. None of the forms

in this packet provide any explanation as to how complainant's hours

were calculated, whether her back pay award included interest, and how

much the three employees of record were paid individually or collectively.

ANALYSIS AND FINDINGS

Where discrimination is found, the injured party is to be placed, as

near as may be, in a situation she would have occupied if the wrong had

not been committed. Albemarle Paper Company v. Moody, 422 U.S. 405,

418-19 (1975). When the amount of back pay is in dispute the burden is

on the agency to produce documentary evidence of the hours complainant

would have worked and the rate of pay she should have received but for

the prohibited discrimination. Hart v. United States Postal Service,

EEOC Petition No. 04990023 (March 31, 2000).

The Commission finds that the record is inadequate to establish that the

agency has properly calculated the back pay or interest due complainant.

The calculations the agency has submitted are not sufficiently specific,

and do not allow a complete resolution of complainant's claim.

The agency's calculations do not show how it arrived at its gross pay

figure. We are unable to discern whether the gross pay figure included

any cost of living or merit increases, interest, and the monetary value

of annual leave accrued during the back pay period, among other things,

all of which she may be entitled to.

Moreover, the agency's calculations do not reflect the pay figure or hours

worked by the three casual employees rehired by the agency at the subject

facility starting on or about May 1999 which would be a necessary step

in complying with the AJ's order that complainant receive an average

of the pay received by the other employees collectively.

In addition, the record shows that the back pay award was offset

by complainant's unemployment compensation. The check statement

accompanying complainant's back pay award showed that $4,420 in

unemployment compensation was deducted from the gross back pay award.

The agency may not deduct unemployment compensation from complainant's

back pay award. See Suzanne Morra-Morrison v. United States Postal

Service, EEOC Appeal No. 04980023 (June 2, 1998)(citing Scott v. United

States Postal Service, EEOC Appeal No. 01921641 (June 11, 1993).

Therefore, we find that the agency, having accepted the finding of

discrimination by the AJ, shall credit complainant's back pay award

for this improper unemployment compensation offset, as well as comply

with the Commission's Order below.

CONCLUSION

For the reasons set forth, the Commission finds that the record is

inadequate to determine whether the agency has awarded complainant the

correct amount of back pay, interest, and all other benefits due in

accordance with the AJ's decision. Accordingly, the agency will comply

with the Order below.

ORDER

Within thirty (30) days after this decision becomes final, the agency is

ORDERED to issue complainant a statement which specifically sets forth

the break down of how it arrived at its back pay figures. Specifically,

the calculation shall include documentation showing what it paid to

the three casual employees rehired by the agency at the facility on or

about May 1999, in accordance with the AJ's order. The calculation

shall include the average pay received by the three casual employees.

Furthermore, the calculations shall explicitly identify complainant's

gross salary payments, any cost-of-living or merit increases, the monetary

value of any retroactive benefits earned, such as annual leave, and all

deductions made. The agency shall also provide calculations regarding

interest payment, either separately or along with the above calculations.

Any codes used in the calculations shall be explained and identified,

so that an independent party can readily decipher the calculations.

Furthermore, the agency shall credit the improperly deducted unemployment

compensation from complainant's back pay award. A copy of the agency's

statement to complainant and a copy of the check must be sent the

Compliance Officer as referenced below.

Complainant 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. If there is a dispute regarding

the exact amount of back pay and/or benefits, 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. Complainant may petition for enforcement or clarification

of the amount 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."

IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)

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 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 (M0701)

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 19848,

Washington, D.C. 20036. 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 (S0900)

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 (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:

______________________________

Carlton M. Hadden, Director

Office of Federal Operations

___03-19-03_______________

Date

1The AJ found no discrimination based on race, sex, or retaliation with

regard to complainant's remaining seven (7) claims.