Joseph W. Milder, Petitioner,v.Hershel W. Gober, Acting Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity CommissionAug 23, 2000
04990038 (E.E.O.C. Aug. 23, 2000)

04990038

08-23-2000

Joseph W. Milder, Petitioner, v. Hershel W. Gober, Acting Secretary, Department of Veterans Affairs, Agency.


Joseph W. Milder v. Department of Veteran Affairs

04990038

August 23, 2000

.

Joseph W. Milder,

Petitioner,

v.

Hershel W. Gober,

Acting Secretary,

Department of Veterans Affairs,

Agency.

Petition No. 04990038

Appeal No. 01971724

Agency No. 95-1671

Hearing No. 260-96-8043X

DECISION ON A PETITION FOR ENFORCEMENT

The Commission docketed a petition for enforcement to examine the

enforcement of an Order set forth in Joseph W. Milder v. Department

of Veteran Affairs, EEOC Appeal No. 01971724 (January 15, 1999).

The appellate decision found petitioner to be a victim of reprisal

when the agency (1) denied petitioner advance sick leave in November,

1992; (2) issued petitioner a poor mid-term progress review; and (3)

failed to select petitioner for the position of Police Officer GS-5

on May 11, 1995. The appellate Order directed the agency to: (1)

retroactively promote petitioner to the position of Police Officer

GS-5, or a substantially similar position, retroactive to May 11, 1995;

(2) determine the appropriate amount of back pay, interest, and other

benefits due petitioner; (3) conduct a supplemental investigation into

what compensatory damages petitioner may be entitled to as a result of

the reprisal discrimination; (4) award attorney's fees; and (5) take

corrective, curative and preventive action to ensure that reprisal

discrimination does not recur, including training to the responsible

management officials. This petition for enforcement is accepted by the

Commission pursuant to 29 C.F.R. � 1614.503.

The issue presented is whether the agency properly complied with the

appellate Order.

The record shows that petitioner was placed into a GS-5 Police

Officer position retroactive to May 11, 1995, and received a subsequent

promotion that the agency asserts would have been due him on May 12, 1996.

In addition, the record shows that petitioner has received a net back-pay

award of $59,098.48.<1> The agency also asserts that petitioner's

leave balances have all been credited. The record shows that the agency

conducted a thorough supplemental investigation pertaining to the issues

of compensatory damages and awarded attorney's fees to petitioner.

The responsible management official has received remedial training on

EEO anti-retaliation laws and regulations and has voluntarily accepted

a position change from a supervisory role to a non-supervisory role.

The petitioner, through counsel, argues that the agency failed to comply

with the appellate decision in the following manner: (1) the agency

failed to place petitioner in the position of Senior Officer; (2) the

agency failed to promote petitioner to the GS-6, step 6 in June, 1995;

(3) the back pay calculations should have been retroactive to November,

1993 rather than May, 1995; (4) the back pay calculations were 64 hours

short in the first pay period; (5) the back pay calculations were short

overtime pay; (6) the interest calculations are inaccurate; (7) the

back pay calculations improperly deducted life/health benefits premium;

(8) the agency is improperly requiring petitioner to remit approximately

$20,000.00 in order to re-credit his retirement account; (9) the agency

improperly placed petitioner in the CSRS - offset program rather than

placing him back into the CSRS retirement program; (10) the agency failed

to provide petitioner with a clothing allowance of approximately $200

for the first year; (11) the agency improperly deducted petitioner's

interim �moonlighting� earnings from its back pay calculations; (12)

the agency failed to restore petitioner's annual leave that he was

forced to use when denied advanced sick leave; (13) the agency failed

to award any compensatory damages; and (14) the agency failed to ensure

that reprisal did not recur.

ANALYSIS AND FINDINGS

In accordance with 29 C.F.R. � 1614.503(c), the Commission may issue a

clarification of a prior decision. A clarification cannot change the

result of a prior decision or enlarge or diminish the relief ordered,

but may further explain the meaning or intent or the prior decision.

Retroactive Promotion:

The Senior Officer Title

The Commission's prior order does not specify that petitioner be

placed into the position of Senior Officer. At the same time, however,

petitioner, as a victim of discrimination, is entitled to �make whole�

relief, which has been defined as the placement of an individual,

as near as may be, in the situation he would have been in absent the

discrimination. See Albemarle Paper Co. v. Moody, 422 U.S. 405, 418-419

(1975). Petitioner argues that he is entitled to the title of Senior

Officer since he was the Senior Officer in the department when he left

in 1993. While the Commission did not find discrimination with respect

to petitioner's departure from the police department, the record is

unclear as to whether, given petitioner's prior experience, he would have

received the title of Senior Office, absent discrimination, with respect

to the non-selection at issue herein. Accordingly, this case should

be remanded back to the agency so that it may address that question.

Specifically, the agency shall explain why petitioner did not receive

the title of Senior Officer when he was retroactively placed into the

position of Police Officer GS-5.

b. Grade and Step Level

Petitioner argues that he should have been retroactively promoted to

the GS-6, Step 6 level in June of 1995 since all Police Officers in

the department allegedly were promoted to such grade at that time.

Since there is no documentation of such a widespread promotion in the

record and the agency has failed to address the issue, this case should

be remanded back to the agency so that it may supplement the record and

address the issue.

Back Pay, Interest and Benefits:

a. Back Pay Retroactive to November, 1993

Petitioner argues that he is entitled to back pay retroactive to

November, 1993. The Commission did not find discrimination associated

with petitioner's departure from the agency in 1993. The finding of

discrimination pertained to the non-selection which occurred on May

11, 1995. The Commission ordered back pay retroactive to May 11, 1995.

Accordingly, petitioner's argument is not proper on a Petition for

Enforcement but should have been the subject of an appeal.

b. 64 Hours of Unpaid Back Pay

Petitioner claims that the first pay period of retroactive back pay

was short by 64 hours. The record clearly shows that petitioner was

paid only 16 hours (rather than 80 hours) during the first pay period.

However, the agency fails to explain the basis for its calculation of

hours during that first pay period. While it is possible that May 11,

1999 (the date retroactive back pay commenced) fell in the middle of a

pay period, the record does not confirm such assumption. Accordingly,

we must remand this matter back to the agency for clarification.

c. 15 Hours of Overtime Each Pay Period

Petitioner also claims that he was entitled to 15 hours of overtime

for each week, since, during the period from May, 1995 to the present,

other Police Officers were allegedly averaging over 15 hours of overtime

each week. Since there is no documentation of such overtime usage,

the case should be remanded back to the agency so that it may supplement

the record and address this issue.

d. Interest Calculations

Petitioner claims that the back pay interest was improperly calculated.

It is unclear from the record how the agency calculated the interest

on its back pay award. The agency provides an itemization of back pay

per pay period. However, the agency's itemization fails to show the

computation of compounded interest in accordance with 5 C.F.R. � 550.806.

Accordingly, this case must be remanded to agency to show how its

computation of interest meets all the requirements of 5 C.F.R. � 550.806.

e. Life/Health Benefits Premiums

Petitioner argues that the agency improperly deducted life/health benefits

premiums from his back pay calculations. We find that the agency should

address petitioner's unrebutted allegation that it has deducted health

insurance premiums in the amount of $356.72. The agency should identify

whether it has, in fact, made such deductions. If such deductions have

been made, the agency shall identify the amount of the deductions as

well as the basis(es) for the deductions.

f. Retirement Benefits

Petitioner argues that he should be reimbursed approximately $20,000.00

of his retirement funds that he was forced to use when he left the

agency in 1993. As stated herein above, the Commission did not find

discrimination with respect to petitioner's departure from the agency

in 1993, and accordingly, he is not entitled to remedies not provided in

the Commission's Order dated January 15, 1999. Therefore, if petitioner

desires to restore his retirement account, he must remit to the agency

the proper amount.<2>

Petitioner also argues that he should be placed back in the Civil Service

Retirement System rather than in the CSRS - Offset Program which he has

currently been placed. We find that petitioner should be placed in the

program he would have been placed if he had been hired to the Police

Officer GS-5 position on May 11, 1995. Since the record is unclear as

to the basis for his placement in the CSRS - Offset Program, we remand

this issue to the agency to address this issue.

g. Clothing Allowance

Petitioner claims that he is entitled to a clothing allowance for the

first year of his employment in the amount of approximately $200.00.

While there is an indication in the record that petitioner was provided

a �uniform allowance� of $390.66 (plus interest), the record is unclear

as to whether he is also entitled to an additional clothing allowance.

Accordingly, we remand this case to the agency to address this issue.

h. Interim Moonlighting Earnings

Petitioner argues that the agency improperly deducted money he earned

during �moonlighting� hours from his back pay calculation. Petitioner

states that even had he been employed full-time with the agency, he still

could have earned such wages.<3> We find this issue not addressed in the

record and accordingly, remand it to the agency. Specifically, we order

the agency to determine the specific nature and hours of petitioner's

�moonlighting� earnings and to articulate its position on this matter.

Restored Annual Leave

Petitioner claims that as a result of being denied advanced sick leave,

in November, 1992, he was forced to use annual leave which should be

restored. However, the appellate decision did not order such a remedy

and the petitioner did not file a timely request for the Commission to

reconsider its appellate decision. Accordingly, since we cannot modify

an appellate decision and Order herein, we must deny petitioner's request

for restored annual leave.

Compensatory Damages

Petitioner claims that the agency's failure to award any compensatory

damages in this matter is contrary to the previous appellate decision and

Order. We disagree. The previous Order required the agency to �conduct

a supplemental investigation into what compensatory damages [petitioner]

may be entitled to as a result of the reprisal discrimination.�

(emphasis added) The only requirement placed on the agency is to conduct

a supplemental investigation on the issue of compensatory damages and

to determine whether compensatory damages were appropriate. The record

indicates that the agency has complied with this Order. We note that

petitioner's dispute over the amount of compensatory damages is properly

before the Commission on a separate appeal.

Corrective, Curative and Preventative Action

Lastly, petitioner argues that the agency has failed to ensure that

reprisal discrimination does not recur. Specifically, petitioner argues

that the agency's requirement that he attend the Police Academy training

in Little Rock, Arkansas is a form of reprisal.

The evidence shows that on January 21, 1999, a memorandum regarding the

Training Policy was distributed to �all staff.� The policy was outlined

as follows: (a) If a rehired police officer has not been separated

from the VA Police & Security Service for less than three years and has

successfully completed the 160-hour Basic Police Officer Training Course

during their previous employment, they will not be required to return

for training; (b) If a rehired police officer completed anything less

than the 160-hour Basic Police Officer Course or if the officer has been

separated from the VA Police & Security Service for more than three years,

the officer will be required to return to training.

The record shows that petitioner satisfactorily completed a course in the

VA Police Officer Training on November 18, 1983. However, the training

he received in 1983 was not the current required 160-hour Basic Police

Officer Training. In addition, petitioner has been physically off

the rolls of the government for 5 years, 4 months, and 11 days (i.e.,

he resigned on November 5, 1993 and was reinstated on March 15, 1999).

The agency argues that it is not requiring petitioner to travel to

Arkansas as a form of reprisal, as all new and certain rehired Police

Officers would be subject to the same training at the same location.

The record also shows that the responsible management official (RMO) has

received remedial training on EEO anti-retaliation laws and regulations.

The RMO has also voluntarily accepted a position change from the

supervisory role to a non-supervisory position.

We find the record indicates that the agency has complied with the

appellate Order requiring it to take corrective, curative and preventative

action to ensure that reprisal discrimination does not recur. However,

if petitioner believes he is the victim of reprisal, or any other form of

unlawful discrimination, he should immediately contact an EEO counselor

with respect to such matters.

Accordingly, and for the reasons stated herein, the Commission DENIES

the petition for enforcement, in part, and REMANDS, the petition for

enforcement, in part, as it is unclear whether the agency has complied

fully with the Order set forth in EEOC Appeal No. 01971724 (January

15, 1999). The Commission therefore Orders the agency to comply with

the Order in EEOC Appeal No. 01971724 by taking the actions set forth

in the Order below.

ORDER

The agency shall explain why petitioner was not given the title Senior

Officer when he was retroactively promoted to the Police Officer GS-5

position.

The agency shall supplement the record by investigating whether in June

of 1995 a widespread promotion of the Police Officers occurred whereby

the officers were promoted to the GS-6, step 6 level. In addition, the

agency shall articulate for the record why petitioner was not similarly

promoted to the GS-6, step 6 level until approximately 1998.

The agency shall supplement the record with documentary evidence and

clarify the basis for awarding petitioner only 16 hours during the first

pay period of the back pay period.

The agency shall supplement the record with documentary evidence regarding

the average overtime usage among the officers during the period May,

1995 to March 15, 1999 (the back pay period). In addition, the agency

shall articulate its position on this issue.

The agency shall provide an itemization which fully explains how it has

fully complied with the interest calculation requirements set for in 5

C.F.R. � 550.806. In addition, the agency shall articulate its position

on this issue.

The agency shall identify whether it has deducted life/health benefit

premiums during the back pay period. If such deductions have been made,

the agency shall articulate the amount and basis for such deductions.

The agency shall explain the basis for placing petitioner in the CSRS

- Offset Retirement program rather than the Civil Service Retirement

System.

The agency shall supplement the record with supporting evidence and

articulate its position regarding petitioner's assertion that he is

entitled to a clothing allowance for the first year of his employment

of approximately $200.00.

The agency shall determine the specific nature and hours of petitioner's

�moonlighting� earnings and articulate its position as to whether it

may deduct such interim earnings from the agency's back pay calculations.

The agency shall complete its supplementation of the record within thirty

(30) calender days of the date this decision becomes final and forward a

copy of the supplemental record to petitioner for his comments thereon.

Within sixty (60) calendar days of the date this decision becomes final,

the agency shall forward to the Commission the information obtained during

its supplemental investigation, as well as any comments from petitioner,

for further review of its compliance with the Commission's prior Order.

The agency is further directed to submit to the Compliance Officer,

as referenced below, copies of the letters that transmit the evidence

to petitioner and the supplemental investigation to the Commission;

evidence that it has paid petitioner the back pay in question; and

evidence that it has issued a decision addressing the matters herein.

IMPLEMENTATION OF THE COMMISSION'S DECISION (K1199)

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 64

Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter

referred to as 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)(Supp. V 1993). If the complainant files a civil action, the

administrative processing of the complaint, including any petition for

enforcement, will be terminated. See 64 Fed. Reg. 37,644, 37,659 (1999)

(to be codified and hereinafter referred to as 29 C.F.R. � 1614.409).

ATTORNEY'S FEES (H1199)

If complainant has been represented by an attorney (as defined by 64

Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter

referred to as 29 C.F.R. � 1614.501(e)(1)(iii)), he/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.

STATEMENT OF PETITIONER'S RIGHTS - PETITION FOR ENFORCEMENT

COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION

(R0400)

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 (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

August 23, 2000

__________________

Date

1 According to the agency this figure includes petitioner's gross back

pay (with interest) of $112,709.76 minus interim (outside) earnings,

retirement contributions, taxes, and life/health benefits premium.

In addition, this figure includes a �uniform allowance� of $390.00

plus interest. The agency also noted that should petitioner want to

have his retirement account re-credited he will need to remit to the

agency a check in the amount of $20,311.04.

2 However, the agency is still required to restore petitioner's retirement

contributions related to the back pay period of May 11, 1995 through

March 15, 1999.

3 Courts addressing the moonlighting issue have indicated that if the

plaintiff could have held both the supplemental job and the job he did

not receive because of discrimination, the earnings from the supplemental

job will not be used to reduce the back pay award. See Whatley v. Skaggs

Cos., 707 F.2d 1129, 1139 (10th Cir.1983) (where plaintiff could not have

held both supplemental job and job he lost because of discrimination,

moonlighting earnings are "interim earnings); Bing v. Roadway Express,

Inc., 485 F.2d 441, 454 (5th Cir.1973) (indicating that if plaintiff

could have held both jobs, then supplementary job is not "interim,"

but assumes "permanent" nature).