0420150003
04-08-2016
Juli Z.,1 Petitioner, v. Megan J. Brennan, Postmaster General, United States Postal Service (Pacific Area), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Juli Z.,1
Petitioner,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Pacific Area),
Agency.
Petition No. 0420150003
Appeal No. 0120102789
Agency No. 4F-920-0018-03
DECISION ON A PETITION FOR ENFORCEMENT
On February 13, 2015, the Equal Employment Opportunity Commission (EEOC or Commission) docketed a petition for enforcement to examine the enforcement of an Order set forth in Appeal No. 0120102789 (November 30, 2010). The Commission accepts this petition for enforcement pursuant to 29 C.F.R. � 1614.503.
BACKGROUND
At the time of events giving rise to this complaint, Petitioner worked as a Distribution Clerk at the Apple Valley, California Post Office. Petitioner filed a complaint in which she alleged that the Agency discriminated against her on the basis of sex (female) and in reprisal for prior protected EEO activity under Title VII, in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq. Specifically, Petitioner alleged that the Agency subjected her to sexual and retaliatory harassment from 2000 until 2007, and denied her overtime in 2003.
AJ's Decision
After a hearing, an EEOC Administrative Judge (AJ) found that Petitioner proved that she had been subjected to sexual harassment for which the Agency was liable. The AJ further found that Petitioner also proved that the Agency retaliated against her when it assigned her fewer hours of overtime than male employees. In order to remedy the discrimination, the AJ ordered the Agency to pay Petitioner $35,000 in non-pecuniary compensatory damages; pay Petitioner $30,380 in attorney's fees; institute a policy that prevents employees from discussing female employees in sexual terms, including their physical appearance and manner of dress; provide 40 hours of training to all responsible management officials; consider disciplining the responsible management officials; consider disciplining the harasser; pay Petitioner the equivalent of the average overtime paid to subordinate employees in 2003, minus the amount of overtime already paid to Petitioner in 2003; restore any sick or annual leave Petitioner used because of the harassment and discrimination; and post a notice in the facility regarding the AJ's findings. The Agency subsequently issued a final order fully adopting the AJ's findings and orders. However, Complainant appealed the amount of non-pecuniary compensatory damages awarded by the AJ.
Commission's Appellate Decision
In an appellate decision, the Commission found that Petitioner was entitled to $150,000 in non-pecuniary compensatory damages. EEOC Appeal No. 0120102789 (Nov. 30, 2010). Additionally, the Commission ordered the Agency to immediately take all appropriate action to prevent additional harassment of Petitioner by any coworker, including transferring the harasser if necessary; institute and communicate a policy that prevents co-workers and other employees who work at the facility from discussing any female employee, including Petitioner, in sexual terms and from graphically discussing Petitioner's and other females' appearance, bodies, manner of dress, and from making any comments about them to one another at work; provide at least 40 hours of training to all supervisors and managers named in this case on their obligations to prevent sexual harassment and retaliation; consider taking disciplinary action against the responsible management officials; pay Petitioner overtime for 2003, as measured by the average hours of overtime worked by male employees who were junior to her, minus the hours of overtime Petitioner worked; and restore sick leave and annual leave, and reimburse Petitioner for any leave without pay (LWOP) she used as the result of the unlawful discriminatory harassment. Additionally, the Commission ordered the Agency to pay Petitioner $150,000 in non-pecuniary compensatory damages; pay Petitioner $30,380 in attorney's fees; and post a notice of the finding of discrimination at the facility.
Compliance Actions
The matter was assigned to a Compliance Officer and docketed as Compliance No. 0620110110 on December 2, 2010. The Agency submitted an interim compliance report dated December 18, 2012, with attached documentation. The documentation indicates that the Agency reassigned the harassing coworker to the Victorville, California Post Office effective May 10, 2010, and the Manager of Post Office Operations conducted a stand-up talk in June 2011 with managers and employees in which she reviewed the Agency's harassment policy, which was posted in a conspicuous location. The documentation further indicated that responsible management officials completed 40 hours of EEO training, but the Agency decided not to discipline them because of their "subsequent education and successful performance since the timeframe the violation occurred." The documentation also indicated that it paid Petitioner $150,000 in non-pecuniary compensatory damages and $30,380 in attorney's fees, and posted a notice of discrimination at the Apple Valley Post Office. Additionally, the Agency reported that it reached an agreement with Petitioner about payment of overtime, but completion of this matter was pending. The documentation further stated that the Agency and Petitioner were meeting to review pay records and clock rings to determine leave restoration amounts, and therefore, this item was pending completion.
In a "final compliance report" dated September 30, 2014, the Agency reported that it issued Petitioner a check in the amount of $3,396.74 for overtime. With respect to restoration of leave, the Agency also submitted a 38-page back pay report and a copy of a check in the amount of $20,203.74.
Petition for Enforcement
In verbal conversations with the Compliance Officer in 2014, Petitioner alleged that the Agency had not complied with the Commission's orders. On January 12, 2015, the Compliance Officer requested that Petitioner specify in writing why she thought the Agency had not complied with our orders. In correspondence dated January 21, 2015, Petitioner responded that she had to use annual leave to prepare a statement for the Compliance Officer because the Agency denied her official time. Petitioner further alleged that the Agency paid back LWOP as "wages," which made it appear that she worked and was paid that amount of money in 2014, which caused "problems for me with my daughter's college when it was suppose[d] to be paid back in 2010 when my daughter was not in college." She stated that she requested a letter from the Agency explaining the back pay to the college. Petitioner also stated that she requested explanations of its actions from Agency officials, but she has not received any answers.
ANALYSIS AND FINDINGS
Based upon a thorough review of documentation submitted by the Agency, we find that the Agency has proven that it has complied with all of our orders, except with respect to payment of overtime and restoration of leave. In so finding, we note that the Commission ordered the Agency to restore all leave (annual, sick, and LWOP) and overtime Petitioner lost or used because of the harassment and discrimination. The Agency submitted checks that it claims reflect that it paid Petitioner for the lost overtime and leave. However, these checks do not automatically prove compliance with our order. In particular, although the Agency maintains that it reached an agreement about overtime with Petitioner, it has not submitted any documentation regarding this purported agreement. Additionally, the Agency has not provided us with documentation that clearly delineates the average hours of overtime worked by male employees who were junior to Petitioner or the hours of overtime actually worked by Petitioner during the relevant time period. As such, we are not persuaded that the Agency's payment of $3,394.74 for overtime fully remedies Complainant in accordance with our order.
With regard to leave, although the Agency provides us with a "Back Pay Report" for the period of January 1, 2000, until January 2008, this document is not self-explanatory. Instead, it is a computer-generated printout of internal payroll codes, categories, jargon, and numbers. This documentation does not clearly explain how Petitioner's leave was restored. Specifically, the Agency has not explained the specific amount of sick leave, annual leave, and LWOP taken by Petitioner because of the harassment; how it determined how much leave was attributed to discrimination; or the manner by which it restored the leave and compensated Petitioner for it. Additionally, it is unclear whether the Agency increased Petitioner's leave balances, or if its payment of $20,203.74 entirely represents the monetary value of all leave owed to Petitioner. Therefore, we cannot find that the Agency's payment of $20,203.74 for leave restoration demonstrates full compliance with our order. The Agency must now provide a plain language, step-by-step narrative that clearly sets forth such an explanation for its calculations and payments.
With regard to Petitioner's assertion that the Agency reported LWOP reimbursements as "wages," we find that this payment was properly characterized as wages because it represents salary and benefits Petitioner lost while in LWOP status. Petitioner requests that the Agency write a letter to her daughter's college explaining the back pay award, presumably to mitigate the effect the payment had on the calculation of Petitioner's yearly income and her daughter's college financial aid package. However, this matter is beyond the scope of our orders, and as such, we cannot order the Agency to write such a letter. Nevertheless, Petitioner may wish to explain the matter to the college herself or request that the Agency provide a written explanation of the payment to the college.
Finally, Petitioner alleged that the Agency denied her official time to respond to the Commission's request that she specify how the Agency had not complied with its orders. We note that if a complainant is an employee of an agency, she shall have a reasonable amount of official time, if otherwise on duty, to prepare the complaint and to respond to agency and EEOC requests for information. 29 C.F.R. � 1614.605(b). In this case, Petitioner did not specify the amount of official time she requested or the amount of annual leave she took when the Agency denied her request. Therefore, we find that she has not proven that she was denied official time.
CONCLUSION
The Commission is unable determine from the record if the Agency has complied with our order to restore leave and pay Petitioner for overtime lost because of discrimination and harassment. Therefore, the Petition is GRANTED. We REMAND this matter to the Agency to issue detailed plain language explanations of how it made its calculations with regard to overtime payments and leave restoration.
ORDER
The Agency is ORDERED to take the following remedial actions:
1. Within sixty (60) calendar days of the date of this decision, the Agency shall provide Petitioner with a detailed, step-by-step narrative statement clarifying how Petitioner's entitlement to overtime and leave was calculated. The statement shall consist of a clear "plain language" statement of the methods of calculations used for the instant matter and actual calculations applying said formulas and methods. To the extent it has not done so already, if there is still a dispute regarding the exact amount of leave and overtime owed to Petitioner, the Agency shall issue a check to Petitioner for the undisputed amount within thirty (30) days of the date the Agency determines the amount it believes to be due.
2. Petitioner shall cooperate in the Agency's efforts to compute the proper amount of overtime and leave restoration due, and shall provide all relevant information requested by the Agency. Petitioner may petition for enforcement or clarification with regard to the amount of leave or overtime in dispute. The petition for clarification or enforcement must be filed with the Compliance Officer, at the address referenced in the statement entitled "Implementation of the Commission's Decision."
3. 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 and a plain language narrative of the Agency's calculation of overtime and leave due Petitioner, including evidence that the corrective action has been implemented.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0610)
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 77960, Washington, DC 20013. 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 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) (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.
PETITIONER'S RIGHT TO FILE A CIVIL ACTION (R0610)
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 (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
April 8, 2016
Date
1 This case has been randomly assigned a pseudonym which will replace Petitioner's name when the decision is published to non-parties and the Commission's website.
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