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).