Joyce L. Carden, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionFeb 10, 2000
01983554 (E.E.O.C. Feb. 10, 2000)

01983554

02-10-2000

Joyce L. Carden, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.


Joyce L. Carden v. United States Postal Service

01983554

February 10, 2000

Joyce L. Carden, )

Complainant, )

)

v. ) Appeal No. 01983554

) Agency No. 1C-443-1065-95

William J. Henderson, )

Postmaster General, )

United States Postal Service, )

Agency. )

_________________________________)

DECISION

Complainant filed the instant appeal on April 3, 1998 in which she claims

that the agency failed to comply with the terms of an agency decision

dated May 27, 1997.<1>

The agency's May 27, 1997 decision found that complainant was

discriminated against on the basis of disability when she was found

medically unsuitable for the position of Data Conversion Operator on

August 22, 1995. The agency ordered the following relevant remedies:

Place complainant retroactively into the position of Data Conversion

Operator assigned to the Akron Remote Encoding Center as of the date

she would have been hired had she not been found medically unsuitable

for the position;

[I]ssue a check to complainant for the appropriate amount of backpay,

interest on backpay, and other benefits[.]

In the appeal complainant claims that the agency failed to comply with

the backpay provision of the May 27, 1997 agency decision because the

agency deducted from the backpay earnings complainant had received from

prior employment. Complainant admits receiving a backpay check on March

12, 1998 for $1,756.12 (gross) covering the period of August 30, 1995

to June 7, 1997. The agency argues that complainant failed to timely

raise her claim and that the agency properly deducted from the backpay

complainant's earnings from another job.

The regulation set forth at 64 Fed. Reg 37,644, 37,660 (1999) (to be

codified as and hereinafter cited as 29 C.F.R. � 1614.504(a)) provides

that a final action that has not been the subject of an appeal or civil

action shall be binding on the agency. If the complainant believes that

the agency has failed to comply with the terms of a decision, then the

complainant shall notify the EEO Director of the alleged noncompliance

"within 30 days of when the complainant knew or should have known of

the alleged noncompliance." 29 C.F.R. � 1614.504(a).

As an initial matter we find that complainant timely raised her

noncompliance claim. Complainant first raised her noncompliance

claim in the instant April 3, 1998 appeal. The Commission deems the

agency's argument that it complied with the May 27, 1997 decision to

be a determination on complainant's noncompliance claim. Therefore,

although complainant's claim was initially premature, there is no need

to remand the matter because the agency has already issued a decision on

the instant claim. The agency argues that complainant knew on December

3, 1997 that her outside earnings were scheduled to be deducted from

her backpay. The Commission finds that the triggering date for when

complainant should have known of an improper backpay calculation was the

date she or her attorney received the actual backpay check. To file a

claim of noncompliance before such a date would have been speculative.

The record shows that the backpay check is dated March 3, 1998.

The agency does not argue or provide evidence showing that complainant

or her attorney received the backpay check prior to March 12, 1998 (the

date complainant claims she received the check). Because complainant

raised the noncompliance claim within 30 days of March 12, 1998, we find

that her claim was timely raised.

Complainant argues that she performed work from August 30, 1995 to June

7, 1997 (the day complainant was placed on the agency payroll according

to complainant) which was not undertaken to replace the employment she

would have had with the agency. Complainant claims that her work outside

of the agency consisted of employment through a temporary employment

firm where her working hours were "basically" from 8:00 a.m. to 4:30

p.m. on a non-daily basis. Complainant argues that at the agency she

would have worked in the Encoding Department from 5:30 p.m. to 11:30

p.m. with working hours averaging from 18 to 40 hours per week. In an

affidavit complainant states that she worked the following jobs through

the temporary employment firm during the relevant time period:

Starting September 1995 for five weeks at Business A - receptionist -

from 8:00 a.m. to 4:30 p.m.

3 weeks (date not provided) at Business B - Data Entry Clerk - from 8:00

a.m. to 4:30 p.m.

January 15, 1996 to April 1997 at Business C - Data Entry Clerk - from

8:00 a.m. to 4:30 p.m.

April 1996 to May 1, 1997 at Business D (position not provided) - from

8:00 a.m. to 4:30 p.m.

May 1, 1997 to July 15, 1997 at Business C (position not provided) -

from 8:00 a.m. to 4:30 p.m.

The agency argues that the notices for the relevant position complainant

had applied for with the agency, Data Conversion Operator, did not list

specific hours. The agency also noted that complainant stated that

she began work at the agency on June 7, 1997 and stopped working for

the temporary employment firm on July 15, 1997. The agency argues that:

[A] reasonable person [would] believe [complainant] only worked for

the temporary agency until she was placed in her position and completed

training for the Postal Service job. Thus, the position at the Remote

Encoding Center was her primary job and she stopped working for the

temporary employment agency at the time she received this job, so those

jobs, even temporary, did replace the position she would have been hired

for with the Postal Service.

The Commission has held that "mitigating income" is properly deducted

from a backpay award. Dixon v. Department of Education, EEOC Request

No. 05900436 (May 25, 1990). The "determinative factor" of determining

whether income is mitigating income "is whether the mitigating employment

took the place of the employee's desired employment or would have been

in addition to this desired employment." Id. In Dixon the Commission

applied the following standard for determining whether or not mitigating

earnings must be deducted from a backpay award:

If a supplemental or moonlight job is one that the discriminatee cannot

perform when he wins his new position, the supplemental job is necessarily

temporary, provisional or "interim." By contrast, if one can hold

his supplemental job and his desired full time job simultaneously and

there is reason to believe he will do so, the supplemental job assumes

a permanent rather than an interim nature. Those (permanent) earnings

would be independent of the position sought and should not be taken into

account in back pay calculations.

Id. (quoting Bing v. Roadway Express, Inc., 485 F.2d 441 (5th

Cir. 1973)).

In the instant matter it appears to the Commission that the work

complainant performed at the temporary employment firm "took the place

of" complainant's employment with the agency. Even if complainant

could have performed both her work for the agency and her work for the

temporary employment firm simultaneously, something that is not clear

from the record, the Commission finds that, in the instant matter,

complainant's decision to stop working for the temporary employment

firm shortly after being placed into the position with the agency<2>

shows that the supplemental job was an interim job. Therefore, we find

that compensation for the supplemental job with the temporary employment

firm was mitigating earnings and was properly deducted from complainant's

backpay award. See id. (citations omitted).

Complainant has not argued that the agency miscalculated the backpay

award in any other manner. Complainant has not argued that the agency

failed to comply with any other provision of the May 27, 1997 decision.

Therefore, we find that complainant has failed to show that the agency

did not comply with the May 27, 1997 agency decision.

The agency's determination finding that complainant failed to show

that the agency did not comply with the backpay provision of the agency

decision dated May 27, 1997 is AFFIRMED.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M1199)

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

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

referred to as 29 C.F.R. �1614.405). 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 64 Fed. Reg. 37,644, 37,661 (1999)

(to be codified and hereinafter referred to as 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 (S1199)

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:

February 10, 2000

DATE Carlton M. Hadden, Acting Director

Office of Federal Operations

CERTIFICATE OF MAILING

For timeliness purposes, the Commission will presume that this decision

was received within five (5) calendar days of mailing. I certify that

the decision was mailed to complainant, complainant's representative

(if applicable), and the agency on:

_____________________ _________________________

Date

1On November 9, 1999, revised regulations governing the EEOC's federal

sector complaint process went into effect. These regulations apply to all

Federal sector EEO complaints pending at any stage in the administrative

process. Consequently, the Commission will apply the revised regulations

found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the

present appeal. The regulations, as amended, may also be found at the

Commission's website at WWW.EEOC.GOV.

2Complainant has not claimed that she worked at the temporary employment

firm after July 15, 1997.