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.