Gerard K.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Capital Metro Area), Agency.Download PDFEqual Employment Opportunity CommissionFeb 8, 20190120170464 (E.E.O.C. Feb. 8, 2019) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Gerard K.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Capital Metro Area), Agency. Appeal No. 0120170464 Hearing Nos. 531-2011-00122X, 531-2012-00029X Agency Nos. 1K-204-0009-10, 1K-204-0009-11 DECISION Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), in which he raises the issue of noncompliance with the Agency’s final order dated June 8, 2016. In that order, the Agency fully implemented the decision of an EEOC Administrative Judge (AJ) finding that the Agency had violated Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. For the following reasons, the Commission AFFIRMS the Agency’s determination that it has substantially complied with the Agency’s final order, but REMANDS the case for further processing. ISSUE PRESENTED The issue presented is whether the Agency has complied with the orders adopted from the AJ’s decision finding a default judgment in Complainant’s favor. 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. 0120170464 2 BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Supervisor of Maintenance Operations, EAS-17, at the Agency’s Southern Maryland Processing and Distribution Center (P&DC) in Capital Heights, Maryland. On March 26, 2010, and May 4, 2011, Complainant filed EEO complaints alleging that the Agency discriminated against him on the bases of race (African-American), sex (male), age (over 40), and reprisal for prior protected EEO activity when he was not selected for any of 21 positions. Following the Agency’s investigations, Complainant requested a hearing before an EEOC Administrative Judge (AJ). The AJ assigned to the case issued judgment in Complainant’s favor on April 15, 2016, finding that the Agency was in default for failing to comply with discovery orders and for failing to retain documentation related to some of the non-selections at issue. As a result of entering a default judgment, the AJ ordered the Agency to promote Complainant into the position of Manager In-Plant Support (MIPS), EAS-25, with back pay and interest. The AJ also ordered the Agency to award Complainant $23,000 in non-pecuniary compensatory damages and provide Complainant with attorney’s fees and costs. On June 8, 2016, the Agency issued its final order fully implementing the AJ’s decision in Complainant’s favor. The Agency thereafter tendered two checks to Complainant in the amounts of $23,000 and $70,639.61 for compensatory damages, and attorney’s fees and costs, respectively. On July 21, 2016, Complainant, through his attorney, notified the Agency that it had not yet complied with the AJ’s orders by effectuating his promotion and paying him back pay. Thereafter on August 19, 2016, a Compliance Officer with the Agency telephoned Complainant, indicating that the SF-50 documenting Complainant’s promotion showed an effective date of July 23, 2016, retroactive to 2010. Subsequently, Complainant sent an email to the Agency’s Compliance Officer on October 21, 2016, informing her that he had not yet received the Agency’s back bay calculations and requested that she forward the message to the EEO Director. Thereafter, on November 30, 2016, Agency’s Counsel presented Complainant with the Agency’s back pay calculations. Therein, the Agency notified Complainant that he was not entitled to back pay because he received more as an EAS-17, with overtime and premiums, than he would have received if he were promoted to the EAS-25 level, as a MIPS. CONTENTIONS ON APPEAL Complainant’s Brief on Appeal Complainant, through his attorney, subsequently filed the present appeal with the Commission on January 10, 2017, asserting that the Agency failed to calculate the appropriate amount of salary and back pay for him. Complainant contends that the Agency improperly determined that his salary increase accompanying his promotion in 2010 would have been limited to 8%. He specifically asserts that the Agency improperly relied on its May 7, 2009, “Non-bargaining Unit Employees Promotional Salary Increase Policy” memorandum, which recommended that management limit promotional increases to 8%. Complainant maintains that the memorandum refers to “Current pay 0120170464 3 administration policy,” but that the Agency has never produced this pay policy, which could include exceptions to its applicability. He asserts that this memorandum alone does not provide proof that this policy ever applied to Complainant or was even in place at the time of his retroactive promotion. Complainant cites to the promotion of another employee to the MIPS, EAS-25, position in 2010 who was given the salary of $103,154, nearly $20,000 more than him. Complainant names a second employee who was promoted from EAS-17 to an EAS-25 MIPS position in 2014 who was earning $87,673, over $4,000 more than what the Agency asserted Complainant should have been making that year. Complainant moreover asserts that there is no dispute that he would have earned a higher base salary had he been promoted in 2010 and, as a result of having a higher base salary, the Agency's contributions to his thrift savings plan (TSP) would also have been higher. Complainant states, however, that the Agency has so far taken no steps to make back contributions to his TSP based on the change to his base pay due to his retroactive promotion. Agency’s Response In response, the Agency maintains that it used the correct method in calculating Complainant’s retroactive promotion increase from EAS-17 to EAS-25. The Agency states that, in calculating Complainant’s promotion it relied on the policy that was in place during the time, which lowered its salary increases for managers from 10% to 8%. The Agency further maintains that all MIPS employees were not paid at the same rate because salary promotions are calculated by applying the promotion percentage to the base salary. The Agency states that Complainant’s base salary was much less than his two cited comparators, who were earning a salary of $73,639 and $81,745, respectively, while Complainant’s base salary was $66,837 at the time. As such, the Agency asserts that any variation in salaries was not due to the Agency arbitrarily applying its policy, but was based on the simple fact that Complainant’s comparators had higher base salaries at the time of their promotions into the MIPS position. The Agency states that it applied the 8% to Complainant’s base salary at the time of his retroactive promotion, increasing it to $72,184. The Agency further notes that, after determining Complainant’s new base salary, Complainant’s Pay-for-Performance (PFP) was applied to subsequent years. The Agency notes that the PFP program is the primary pay program for performance-based pay increases for executives, professionals, and supervisors. The Agency notes that for Fiscal Year (FY) 2009 Complainant received a 3% PFP increase; for FY 2010 he received a 5.75% increase; and for FY 2011, 2012, and 2013, he did not receive an increase because no Agency employees received PFP increases for those years. The Agency also stated that Complainant received a 1% increase to his base salary for FY 2014 based on a nationwide non-bargaining salary increase, increasing his salary to $79,240. For both FY 2014 and 2015, Complainant received a 2.5% PFP increase to his base salary, increasing his salary to $81,221 and $83,252, respectively. The Agency notes that for FY 2016, Complainant received a 3% PFP increase to his salary, increasing his salary to $85,750. The Agency maintains that Complainant is not owed back pay and interest because he received more in gross wages as a Supervisor, Maintenance, EAS-17, than he would have earned as a MIPS, 0120170464 4 EAS-25. The Agency states that Complainant received $613,179.90 in gross wages as a Supervisor, Maintenance, EAS-17, but would have $587,790.10 in gross wages as a MIPS, EAS- 25. The Agency therefore asserts that Complainant received $25,389.80 more in gross wages as a Supervisor, Maintenance, EAS-17, than if he had been promoted to the MIPS, EAS-25, position. The Agency lastly states that the TSP employer contributions could not be made until it completed the processing of Complainant’s retroactive promotion. The Agency states that it completed the calculations of Complainant’s TSP earnings, but Complainant did not sign-off on administrative Form 8039, “Back Pay Decision/Settlement Worksheet,” because he believed his salary should be increased by 18% to 25 %. ANALYSIS AND FINDINGS Non-compliance with Final Order2 EEOC Regulation 29 C.F.R. § 1614.504(a) provides that a final agency action that has not been the subject of an appeal or a civil action shall be binding on the agency. The regulation provides further that if a complainant believes that the agency has not complied with the terms of the final decision, that the complainant shall notify the agency EEO Director, in writing, within thirty days of the date on which the complainant knew or should have known of the noncompliance. Id. The agency shall resolve the matter and provide a written response to complainant. 29 C.F.R. § 1614.504(b). If the complainant does not receive a response or is not satisfied with said response, the complainant may appeal to the Commission for a determination as to whether the agency is in compliance.3 Back Pay The purpose of a back pay award is to restore to complainant the income he would have otherwise earned but for the discrimination. See Albemarle Paper Co. v. Moody, 442 U.S. 405, 418-19 (1975). Gross back pay should include all forms of compensation and must reflect fluctuations in working time, overtime rates, penalty overtime, Sunday premium and night work, changing rate of pay, transfers, promotions, and privileges of employment to which the complainant would have been entitled but for the discrimination. See Ulloa v. U.S. Postal Serv., EEOC Petition No. 04A30025 (Aug. 3, 2004) (citing Allen v. Dep't of the Air Force, EEOC Petition No. 04940006 (May 31, 1996). 2 Complainant labeled his appeal as a Petition for Enforcement. We find, however, that Complainant’s appeal is more appropriately characterized as an appeal for a determination as to whether the Agency is in compliance with its final order. 3 In the interest of judicial economy, we will view the Agency’s response to the appeal as its decision on Complainant’s claim of non-compliance and address the matter herein. See Stacie D. v. Dep’t of Agriculture, EEOC Appeal No. 0120133016 (Nov. 12, 2015); 0120170464 5 In the instant case, we note that the Agency has provided a clear explanation concerning its calculations for the periods that Complainant is owed back pay, and has included multiple affidavits of Agency officials involved with the back pay calculations. These affidavits are comprehensive and provide an easily understandable breakdown of back pay computations for Complainant. For example, two Agency officials attested that the Agency’s May 7, 2009, memorandum limited promotions to 8% for non-bargaining unit employees, which was controlling policy for the relevant period. Another Agency official explained and showed that Complainant received $613,179.90 in gross wages as a Supervisor, Maintenance, EAS-17, but would have only retroactivity received $587,790.10 in gross wages as a MIPS, EAS-25. This Agency official explained that as an EAS-17, Complainant was eligible and received payment for other premium hours, including for Night Differential and Sunday Premium hours, but as an EAS-25 he would not be eligible to be paid for those other premium hours. Upon review, we find that Complainant has not established that the Agency’s calculations here are incorrect, and that he has not shown that he would have earned more during the pack pay period as an EAS-25 than he did as an EAS-17. Therefore, we find that Complainant has not established that he is entitled to additional back pay. See Cletus W. v. Dep’t of Treasury, EEOC Appeal No. 0720160008 (Aug. 3, 2016) (finding that the record supported the agency’s assertion that complainant earned more during the back pay period than what he would have earned had he been selected); Paulk v. U.S. Postal Serv., EEOC Appeal No. 01970061 (Oct. 4, 2001) (holding that overtime earnings that the complainant earned during the back pay period were considered interim earnings and when deducted from the gross back pay resulted in a back pay award of zero); see also Maez v. U.S. Postal Serv., EEOC Appeal No. 01972692 (Feb. 5, 2002). Thrift Savings Plan (TSP) Contributions With respect to TSP contributions, the Commission has held that “make whole” relief requires an agency to make retroactive tax-deferred contributions to a complainant’s TSP account during the back pay period. Howgate v. U.S. Postal Serv., EEOC Petition No. 04990031 (Feb. 4, 2000) (citing Fiene v. U.S. Postal Serv., EEOC Petition No. 04920009 (Sep. 3, 1992)). The Commission has also held that, to the extent an employee would have received government contributions to a retirement fund as a component of his salary, he is entitled to have his retirement benefits adjusted as part of his back pay award, including receiving earnings which the account would have accrued during the relevant period. Id. (citing Robinson v. Dep't of the Treasury, EEOC Petition No. 04980006 (July 2, 1998); Lee v. Dep't of the Army, EEOC Petition No. 04980020 (Oct. 1, 1998)). In the instant case, we note that the Agency has asserted that it has completed its TSP computations, but that Complainant did not sign-off on administrative Form 8039. As such, the Agency asserts that Complainant’s TSP contributions could not be processed. Therefore, we will remand the matter for the Agency to provide documentation indicating whether it has attempted 0120170464 6 to rectify this matter with Complainant and has credited the appropriate amount to his TSP account.4 CONCLUSION Accordingly, the Agency’s final decision finding that it was in substantial compliance with its final order is AFFIREMED, but the case is REMANDED to the Agency for further action in accordance with the Order of the Commission, below. ORDER To the extent it has not already done so, within 120 days of the date this decision is issued, the Agency will provide Complainant with a detailed statement of its calculations and payments made regarding his TSP account. Specifically, the Agency will clearly document its calculations for all Agency TSP contributions and for lost earnings on Complainant’s TSP account. The Agency will provide documentation showing that it has tendered the appropriate payment for back- contributions and lost earnings. Complainant must cooperate in the Agency’s efforts to resolve this matter. 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 verifying that the corrective action has been implemented. IMPLEMENTATION OF THE COMMISSION’S DECISION (K0618) Under 29 C.F.R. § 1614.405(c) and §1614.502, compliance with the Commission’s corrective action is mandatory. Within seven (7) calendar days of the completion of each ordered corrective action, the Agency shall submit via the Federal Sector EEO Portal (FedSEP) supporting documents in the digital format required by the Commission, referencing the compliance docket number under which compliance was being monitored. Once all compliance is complete, the Agency shall submit via FedSEP a final compliance report in the digital format required by the Commission. See 29 C.F.R. § 1614.403(g). The Agency’s final report must contain supporting documentation when previously not uploaded, and the Agency must send a copy of all submissions to the Complainant and his/her representative. 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 4 We find that, at this point in the administrative process, the Agency has substantially complied with the AJ’s orders, and we therefore find that Complainant has not established that he is a prevailing party herein. Accordingly, we decline to award Complainant attorney’s fees for the processing of the instant appeal. 0120170464 7 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 (T0610) This decision affirms the Agency’s final decision/action in part, but it also requires the Agency to continue its administrative processing of a portion of your complaint. 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 on both that portion of your complaint which the 0120170464 8 Commission has affirmed and that portion of the complaint which has been remanded for continued administrative processing. 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 your appeal with the Commission, until such time as the Agency issues its final decision on your complaint. 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 (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 February 8, 2019 Date Copy with citationCopy as parenthetical citation