04A40012
06-16-2004
Keith L. Kloock, Petitioner, v. John E. Potter, Postmaster General, United States Postal Service, (Great Lakes Area) Agency.
Keith L. Kloock v. United States Postal Service
04A40012
June 16, 2004
.
Keith L. Kloock,
Petitioner,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Great Lakes Area)
Agency.
Petition No. 04A40012
Appeal Nos. 01972840 & 01974955
Agency Nos. 4J-481-1058-95; 4J-481-1075-95; & 4J-481-1025-96
Hearing Nos. 230-96-4061X & 230-96-4062X
DECISION ON A PETITION FOR ENFORCEMENT
On February 5, 2004, the Equal Employment Opportunity Commission (EEOC
or Commission) docketed a petition for enforcement to examine the
enforcement of an order set forth in Keith L. Kloock v. United States
Postal Service, EEOC Appeal No. 01972840 (December 10, 1998) and Keith
L. Kloock v. United States Postal Service, EEOC Appeal No. 01974955
(September 23, 1999) (clarified by Keith L. Kloock v. United States
Postal Service, EEOC Request No. 05A00047 (April 8, 2002). This petition
for enforcement is accepted by the Commission pursuant to 29 C.F.R. �
1614.503. Petitioner alleged that the agency failed to fully comply
with the Commission's orders.
Background
The record reveals that during the relevant time, petitioner was
employed as a City Carrier, PS-05, at the Wyandote, Michigan Post Office.
Petitioner sought EEO counseling and subsequently filed formal complaints
on March 13 and April 24, 1995, alleging that he was discriminated
against on the bases of his disability (herniated disc) and reprisal
(prior EEO activity), when: (1) in December 1994, he was informed that
he was denied the right to continue holding Utility Route U-6 for failing
to provide medical certification (hereinafter referred to as �Claim 1");
and (2) on January 11, 1995, he received a notice of removal for alleged
failure to follow instructions and being absent without official leave
(AWOL) (hereinafter referred to as �Claim 2").
In April 1991, petitioner suffered an on-the-job injury to his back,
which was diagnosed as a disc herniation at the L4-L5 level. He also had
two previous work-related back injuries. On March 27, 1992, petitioner
suffered further injury to his back while sorting flats. In February
1994, the Office of Workers' Compensation Program (OWCP) sent petitioner
for a routine second opinion examination regarding the March 1992 injury.
As a result, the OWCP thereafter terminated petitioner's benefits related
to the March 1992 injury. On May 21, 1994, petitioner's supervisor (S1)
advised him that as a result of OWCP's actions, he would no longer be
allowed to return to duty without first providing medical documentation
from his attending physician stating the diagnosis and prognosis of his
condition, as well as any job restrictions that might prevent him from
performing the full duties of the city letter carrier. If petitioner
had any medical restrictions, he was instructed to apply for �light�
(not �limited� duty) duty assignment. Petitioner was ordered not to
work until he complied with these two requirements. Petitioner's union
representative intervened and argued that petitioner's 1991 injury was
still an accepted OWCP claim, and because of this fact, petitioner was
entitled to retain his �limited duty� status/position. In addition, on
May 24, 1994, petitioner provided the agency with medical documentation
which S1 found to be insufficient. On June 1, 1994, petitioner
attempted to return to work, but was informed that he could only return
in a �light duty� status upon providing current medical certification.
In December 1994, petitioner was still precluded from working and was
informed that he was being denied the right to continue to hold his
bid position on Route U-6 and the position was being re-posted because
petitioner had failed to provide appropriate medical certification
indicating that he could perform the position. On January 11, 1995,
the agency terminated petitioner for being AWOL, for failure to follow
instructions to provide the agency with proper medical certification,
and to report to his fitness-for-duty examination.
After a hearing, the AJ found, inter alia, that the agency offered
no legitimate explanation for the supervisor's �crusade� to remove
petitioner from �limited duty� status, force him to request �light
duty� and submit medical documentation to support that request. The AJ
further held that the evidence supported appellant's position that he
was entitled to �limited duty� status, and if he requested a �light duty�
position he would place himself in the precarious position of losing the
guaranteed right to full-time pay. The AJ concluded that the evidence
pointed to discrimination as the reason for the supervisor's actions,
including denying petitioner the opportunity to return to work and then
placing him on AWOL and eventually removing him from his position.
The agency rejected the AJ's decision. The Commission reversed the
agency's decision on appeal, affirmed the AJ's decision and ordered the
agency to conduct a supplemental investigation pertaining to petitioner's
entitlement to compensatory damages, among other things. See Kloock
v. United States Postal Service, EEOC Appeal No. 01972840 (December 10,
1998) (hereinafter �Commission's 1998 Order�). The agency did not seek
reconsideration of our decision.
In a subsequent complaint, petitioner alleged that the agency
discriminated against him, in violation of Title VII and the
Rehabilitation Act, on the bases of disability (herniated disc)
and reprisal (prior EEO activity) when, on October 24, 1995, he was
issued a Notice of Separation - Disability (hereinafter referred to
as �Claim 3"). The agency's final decision found no discrimination.
The Commission reversed the agency's final decision and found that
the agency discriminated against petitioner on the basis of disability
when it terminated petitioner without attempting to accommodate him.
See Kloock v. United States Postal Service, EEOC Appeal No. 01974955
(September 23, 1999) (hereinafter �Commission's 1999 Order�). In that
decision, the Commission failed to specifically order the agency
to conduct a supplemental investigation pertaining to petitioner's
entitlement to compensatory damages. The petitioner requested
reconsideration of the order seeking clarification on the issue of
compensatory damages. Thereafter, the Commission granted petitioner's
request for reconsideration and clarified its decision by specifically
ordering the agency to conduct a supplemental investigation pertaining to
petitioner's entitlement to compensatory damages. See Kloock v. United
States Postal Service, EEOC Request No. 05A00047 (April 8, 2002)
(hereinafter �Commission's 2002 Order�).
Thereafter, the agency conducted a supplemental investigation pertaining
to petitioner's entitlement to compensatory damages. On October 28,
2002, the agency issued a Final Agency Decision (FAD) and determined
petitioner was entitled to $5,000 in compensatory damages. Petitioner
appealed the agency's compensatory damages award. On appeal, the
Commission modified the agency's award and ordered the agency to pay
petitioner $150,000 in non-pecuniary compensatory damages and $2,703.46
in pecuniary compensatory damages. See Kloock v. United States Postal
Service, EEOC Appeal No. 01A31159 (February 5, 2004) (hereinafter
�Commission's Compensatory Damages Decision�). The agency did not
request reconsideration of this order.
Request for Clarification with Respect to Compensatory Damages Decision
Petitioner seeks clarification of the Commission's Compensatory
Damages Decision. Specifically, petitioner seeks a correction of our
previous decision to show that he sought $300,000 rather than $630,000
in compensatory damages.<1>
The agency responded by asserting that the Commission's Compensatory
Damages Decision addressed the compensatory damages ordered in both the
Commission's 1998 and 2002 orders. Specifically, the agency argues that
while the agency failed to issue a FAD with respect to the Commission's
1998 Order, the Commission, nevertheless, awarded petitioner compensatory
damages with respect to all three claims in the Commission's Compensatory
Damages Decision. Petitioner disagrees with the agency and argues that
the Commission's Compensatory Damages Decision pertained only to the
Commission's 2002 Order (i.e., Claim 3).
Upon review of the record and the clear intent of the Commission's
Compensatory Damages Decision, we find that the previous compensatory
damages award pertains to all three of petitioner's claims. At the time
of the Commission's Compensatory Damages Decision, the record contained
completed supplemental investigations pertaining to compensatory damages
with respect to all three claims. In addition, both the agency and
petitioner presented their positions with respect to petitioner's
entitlement to compensatory damages with respect to all three claims.
While the agency failed to formally issue a FAD in response to
the Commission's 1998 Order, the agency did submit its position on
compensatory damages in writing on October 28, 2002. Moreover, it
appears that the agency had no intention of submitting any additional
FAD or other information on the subject of compensatory damages.
In addition, while the Commission failed to formally consolidate its
previous decisions in the Commission's Compensatory Damages Decision,
the intent of the Commission is clear from the decision. The Commission
awarded compensatory damages to petitioner for injury suffered from
1994 through 2002. Such injury includes all three claims. Accordingly,
we find the issue of compensatory damages resolved.
Petition for Enforcement Issues
In its 1998 Order, the Commission ordered the agency to take the following
remedial action: (a) make an unconditional offer of reinstatement (with
reasonable accommodations) to petitioner to the position of City Carrier,
PS-05, Utility Route U-6, at the Wyandotte, Michigan, Post Office; (b)
award petitioner back pay (retroactive to June 1, 1994), with interest,
for all wages and benefits lost as a result of its failure to allow
petitioner to retain his �limited duty� status; (c) post a notice of
discrimination at the Wyandotte, Michigan Post Office; (d) conduct a
supplemental investigation pertaining to petitioner's entitlement to
compensatory damages;<2> and (e) process a claim for attorney's fees in
accordance with 29 C.F.R. � 1614.501.
In its 1999 and 2002 Orders, the Commission ordered, inter alia, the
agency to take the following remedial action: (a) cancel the Notice of
Separation-Disability that was issued on October 24, 1995; (b) conduct a
supplemental investigation regarding whether there were vacant positions
to which petitioner could have been reassigned; (c) to the extent that
the agency has not complied with the Commission's 1998 Order, the agency
shall offer petitioner any and all reasonable accommodations of his Letter
Carrier position; (d) process a claim for attorney's fees in accordance
with 29 C.F.R. � 1614.501; and (e) conduct a supplemental investigation
pertaining to petitioner's entitlement to compensatory damages.
Petitioner has submitted various statements in support of his five (5)
Petitions for Enforcement. His contentions are summarized as follows:
Back Pay (Petitions 1 and 2)
The record shows that on May 20, 1999 the agency issued petitioner back
pay in the gross amount of $111,181.46. After deductions for taxes and
retirement savings, petitioner received $64,583.58. Petitioner was later
paid interest on the back pay award totaling $23,059.89. The agency
also paid petitioner two bonuses totaling $1,350.00. In addition, the
agency provided petitioner with a 16-page back pay itemization for the
back pay period, as well as a two-page summary of the itemization.
The Commission recognizes that precise measurement cannot always be
used to remedy the wrong inflicted, and therefore, the computation of
back pay awards inherently involves some speculation. Hanns v. United
States Postal Services, EEOC Petition No. 04960030 (September 18, 1997).
The Commission has held that uncertainties involved in a back pay
determination should be resolved against the agency which has already
been found to have committed acts of discrimination. Id. See also Davis
v. United States Postal Service, EEOC Petition No. 04900010 (November
29, 1990); and Besemer v. United States Postal Service, EEOC Petition
No. 04890005 (December 14, 1989).
Annual and Sick Leave
Petitioner agrees with the agency that at the time of his discharge
(June 1994) he had a balance of 93.23 hours of annual leave accumulated.
Petitioner argues that he should have received an additional 160 hours
(i.e., the maximum carry-over amount) per each year during the back pay
period (i.e., 1995, 1996, 1997, 1998). Accordingly, petitioner argues
that he is entitled to 733.25 (93.23 + 160 + 160 + 160 + 160) hours of
annual leave. Petitioner also argues that he is entitled to 160 hours of
annual leave with respect to the year 1999. In the case of an improperly
terminated employee who is later reinstated, the agency regulations
permit the creation of a separate leave account with no carryover limits.
With respect to sick leave, petitioner argues that he is entitled to
4 hours of sick leave per each pay period during the back pay period.
Accordingly, petitioner argues that he is entitled to 508 hours of
sick leave.
Petitioner is entitled to a reimbursement of annual and sick leave for
the back pay period (June 1, 1994 through April 9, 1999 which totals 127
pay periods).<3> In addition, the record indicates that petitioner is
entitled to 6 hours of annual leave each pay period and 4 hours of sick
leave each pay period. Accordingly, we find petitioner is entitled to
762 hours (127 x 6) of annual leave and 508 hours of sick leave placed
in a separate account not subject to any carryover requirements.
Pay Rate and Step Increases
Petitioner claims that while the Commission's 1998 Order requires the
agency to reinstate petitioner at the PS-5 rate, his back pay calculation
should include an increase in his pay rate to the PS-6 rate as of
October 26, 1994 (i.e., the date the agency elevated all Route U-6 City
Carrier's pay rates due to a national interest arbitration decision).
The agency responds by stating that the Commission has no authority to
enforce arbitration awards. We disagree with the agency's argument.
The Commission ordered the agency to award petitioner back pay which
includes all forms of compensation, and should reflect fluctuations in
working time, overtime rates, penalty overtime, Sunday premium and night
work, changing rates of pay, transfers, promotions, and privileges of
employment. See Williams v. U.S. Postal Service, EEOC Appeal No. 01933156
(May 4, 1994), req. to reopen den., EEOC Request No. 05940680 (February
16, 1995). Accordingly, when the agency calculated the back pay owed to
petitioner, it should have included such elements.
It appears from the record that in October 1994, all Route U-6 City
Carrier's were upgraded to the PS-6 pay rate. Absent discrimination,
petitioner would have remained in the Route U-6 City Carrier position in
October 1994 and would have automatically received the pay rate increase.
Accordingly, we find that petitioner is entitled to a pay increase
retroactive to October 26, 1994. Such pay increase shall reflect the
PS-6 pay rate as well as the proper step amount that he should have been
entitled to at the time. The agency shall recalculate its back pay and
interest award to reflect this pay increase.
Petitioner also asserts that the agency miscalculated his step
increases. Specifically, petitioner argues that the agency applied
three step-increase deferments (3 months each) which were rescinded.
Accordingly, petitioner asserts that his step increases were delayed by
9 months. We find that petitioner is entitled to step increases at the
rate he would have received them absent discrimination. Accordingly,
if such step increase deferments were rescinded prior to the date that
petitioner would have received his step increases, then the agency shall
recalculate his step increases to reflect the change.
Interest Calculations
Petitioner is concerned that the interest award was improperly calculated
based upon his net back pay rather than his gross back pay. However,
we note that interest is properly computed on net back pay, rather
than gross back pay. See Wrigley v. United States Postal Service,
EEOC Petition No. 04950005 (February 15, 1996).
However, the Commission finds it unclear from the record how the agency
calculated the interest on its back pay award. While the agency provided
an itemization, it failed to show the computation of compounded interest
in accordance with 5 C.F.R. � 550.806. Accordingly, on remand the
agency is ordered to show how its computation of interest meets all the
requirements of 5 C.F.R. � 550.806.
We note that since the back pay and interest award must be recalculated,
additional interest has accrued during the back pay period (i.e., June
1, 1994 through April 9, 1999) based on the difference between the
revised net back pay award to be determined and the $64,583.58 in net
back pay already awarded to petitioner on May 20, 1999. In addition,
interest on that unpaid interest balance has accrued since May 9, 1999
(i.e., the date back pay was due), and will likewise have to be paid.
Allen v. Department of the Interior, EEOC Request No. 05970352 (August
11, 1999).
Tax Consequences
Petitioner argues that he should be compensated for the alleged adverse
tax consequence of receiving a lump sum back pay award. The record
contains a report from petitioner's tax attorney who concluded that
petitioner paid an additional $19,540 in taxes as a result of the lump
sum back pay awards he received in 1999. The agency fails to respond
to this issue. The Commission has held that increased tax liability
resulting from a lump sum back pay award are reimbursable as part of
an equitable remedy. See Goetze v. Department of the Navy, EEOC Appeal
No. 01991530 (August 22, 2001). We find the petitioner's tax attorney's
report sufficient proof of petitioner's additional tax liability.
Accordingly, we find that the agency is required to reimburse petitioner
$19,540 for the added tax burden suffered by petitioner as a result of
the discrimination.
Uniform Allowance
Petitioner claims that he is entitled to a uniform allowance since
the uniforms that he possessed when he was terminated are now old and
obsolete (i.e., the design has changed). The record does not indicate
whether all City Carriers received a uniform allowance when the uniform
design changed. If similarly situated carriers received a uniform
allowance, then the agency shall provide one to petitioner. However,
if Route U-6 City Carriers were required to pay for the new uniforms,
then petitioner shall not be entitled to a uniform allowance.
Retirement Deduction
Petitioner argues that the agency should not have deducted any amount
for retirement. According to Petitioner, his retirement plan was wholly
paid by the agency, without contribution from him. The agency disagrees
and argues that petitioner's contribution to his Basic Benefit Plan is
the difference between 7% of his basic pay and Social Security's old
age, survivor, and disability insurance tax rate, or .8%. The agency
refers the Commission to the Office of Personnel Management retirement
information available on www.opm.gov. The record indicates that the
agency properly deducted retirement contributions from petitioner in
its back pay award.
While it appears from petitioner's submissions that the agency deducted
petitioner's own contributions from his back pay, it is still unclear
whether the agency provided petitioner with applicable matching
contributions for the back pay period. The Commission has previously
held that, to the extent a complainant would have received government
contributions to a retirement fund as a component of his salary, he is
entitled to have his retirement benefits adjusted as part of his back pay
award, including receiving interest which the account would have earned
during the relevant period. See Korchnak v. United States Postal Service,
EEOC Petition No. 04960028 (December 19, 1996); Wrigley v. United States
Postal Service, EEOC Petition No. 04950005 (February 15, 1996). To the
extent that the agency has not done so, it must provide petitioner with
the applicable matching contributions for the back pay period.
Back Pay Hours
With respect to the back pay, (pay period 12/1994 through pay period
8/1999), petitioner argues that he received only 40 hours during
pay period (PP) 12/1994 and 0 hours during PP 17/1994. Accordingly,
petitioner contends that he is owed an additional 120 hours of back pay
and interest from 1994. Petitioner also notes that the first week of
the agency's interest itemization (6/17/94) is different from the first
back pay period (PP 12/1994). While it may be possible that petitioner
had worked and received payment during the first half of pay period
12/1994, we do not discern the justification for failure to reimburse
petitioner back pay for PP 17/1994. On remand, the agency shall clarify
the discrepancies noted by petitioner.
Fitness for Duty Expense Prior to Return to Reinstatement
The agency required petitioner's Chiropractor to confirm his fitness
for duty prior to reinstatement. Petitioner asserts that the cost of
this service should be reimbursed by the agency. The agency fails to
respond to this issue. We agree with petitioner. The Rehabilitation
Act requires the agency to pay for all costs associated with fitness for
duty assessments required by the agency. See EEOC Enforcement Guidance
on Reasonable Accommodation and Undue Hardship Under the American's with
Disabilities Act, No. 915.002, pp. 18-19 (October 17, 2002). Accordingly,
the agency should reimburse petitioner $200 for the fitness for duty
expense in July 1999.
General Contentions
In addition to the back pay issues set forth above, petitioner generally
claims that the agency failed to sufficiently itemize and explain
its back pay award in numerous ways. Accordingly, petitioner argues
that it is unclear whether the agency met its back pay obligations.
The agency asserts that, in accordance with the Commission's regulations,
petitioner is required to �specifically set forth the reasons that lead
[him] to believe that the agency is not complying with a decision.� See
29 C.F.R. � 1614.503(a). We agree with the agency that petitioner has
an obligation to specifically explain his contentions in his petition
for enforcement. Accordingly, other than the back pay issues specified
above, we cannot address general complaints of the back pay award other
than to remind the agency of its requirements under 5 C.F.R. � 550.806.
Limited Duty Reinstatement (Petition 3)
The parties dispute whether the agency was required to reinstate
petitioner to a �limited duty� position. The agency argues that since
the Office of Worker's Compensation rejected petitioner's worker's
compensation claim in May 1994, he is not entitled to a �limited
duty� position. Petitioner argues that the Commission's 1998 Order
requires the agency to reinstate him to a �limited duty� position.
While the agency argues the underlying facts in support of its position,
we look solely at the intent of Commission's 1998 Order to resolve this
issue.<4> First, we note that the Commission's 1998 decision upheld the
AJ's decision which found �that the evidence supported [petitioner's]
position that he was entitled to �limited duty' status.� The Commission's
1998 Order explicitly required the agency to �make an unconditional
offer of reinstatement to [petitioner] of the position of City Carrier,
PS-05, Utility Route U-6, at the Wyandotte, Michigan Post Office.� In
addition, the agency was ordered to �award [petitioner] back pay, with
interest, for all wages and benefits lost as a result of its failure to
allow him to retain his limited duty status, commencing June 1, 1994.�
(emphasis added). Accordingly, based upon the explicit holding of
the Commission's 1998 decision and order, we find that the agency was
ordered to reinstate petitioner retroactively into the City Carrier,
PS-05, Utility Route U-6 position described above.
Attorneys Fees and Costs (Petition 5)<5>
Petitioner submitted a timely fee statement on May 6, 1999, pursuant
to the Commission's 1998 Order. Petitioner's attorney sought $22,930
in attorney's fees and costs<6> associated with the appeals filed
by petitioner in February and June of 1997, in addition to other EEO
matters and compliance efforts following the Commissions 1998 and 1999
decisions. On June 19, 2000, the agency responded to petitioner's
attorney's fee petition arguing that the total award should not
exceed $4,360.00. Specifically, the agency argues that the attorney
fee petition describes the attorney's work in a �manner so general
and vague that it is impossible to determine the reasonableness of the
work performed or the time spent.� In addition, the agency argues that
the fee petition improperly seeks a fee award for hours expended on
other unrelated matters. The agency notes that the first Final Agency
Decision which petitioner's attorney appealed to the Commission was
not issued until January 27, 1997. Accordingly, any fees accrued prior
to January 27, 1997 could not have been in connection with the appeals
of the Final Agency Decisions at issue herein. The agency also notes
that petitioner's attorney listed work performed after the filing of
the relevant appeals.<7>
Upon review of the fee petition, we find that petitioner is entitled to
recover attorney's fees associated with two appeals filed by petitioner's
attorney in 1997. Such attorney's fees occurred between February 6,
1997 and June 2, 1997.<8> Petitioner's attorney listed the following
work during this period:
Date Services Time
2/6/97 Kloock in office 1.0
2/22/97 Review file 2.5
2/24/97 Review file 1.0
2/26/97 Kloock in office 2.5
3/2/97 Review Transcript and Exhibits 2.0
3/2/97 Review Transcript and Exhibits 1.0
3/4/97 Review Transcript and Exhibits .5
3/6/97 Brief 1.5
3/10/97 Brief .5
3/11/97 Brief 1.2
3/14/97 Brief .5
3/17/97 Brief .5
3/18/97 Brief 1.0
3/21/97 Brief 5.0
3/23/97 Brief 3.0
3/29/97 Brief 3.0
3/30/97 Brief 3.0
3/31/97 Kloock in office regarding exhibits
and transcript 2.0
4/1/97 Brief .5
4/9/97 Brief 1.5
4/10/97 Brief 5.0
4/17/97 Brief 2.0
4/18/97 Brief 1.0
4/22/97 Review Yurkanin letters, brief 2.0
4/24/97 Brief 4.0
4/25/97 Brief 3.0
4/28/97 Brief 2.0
5/28/97 1996 Brief 1.5
5/29/97 1996 Brief 3.0
5/30/97 Brief and cover letter .5
6/2/97 Finish brief 1.0
Total hours: 58.7
After careful review of the initial fee petition submitted herein,
the Commission finds that the hours claimed by petitioner's attorney,
are generally unsupported and vague. We find it difficult to ascertain
the reasonableness of work performed under such general descriptions.
When a fee reduction is in order based on excessive hours, it is not
necessary for the Commission to �perform a detailed analysis to determine
precisely the number of hours or types of work for which no compensation
is allowed; rather, it is appropriate to reduce the hours claimed by an
across-the-board reduction.� Abbate v. Department of Navy, EEOC Appeal
No. 01971418 (March 24, 2000) (citing, Finch v. United States Postal
Service, EEOC Request No. 05880051 (July 15, 1988)). Our review of the
record in this case indicates that such an across-the-board reduction
of hours expended by 20% is reasonable in this case (58.7 - 11.7 or 47
hours) Accordingly, we find that petitioner is entitled to attorney's
fees associated with the two appeals filed in 1997 in the amount of
$9,400 or 47 hours x $200 hourly rate<9>).
We also find that any attorney's fees associated with the petitioner's
request for reconsideration filed in October, 1999 have been waived since
petitioner failed to file an attorney's fee petition in accordance with
the Commission's 2002 order.
CONCLUSION
Based upon a review of the record and the submissions of the parties,
and for the foregoing reasons, the Commission grants the Petition for
Enforcement in part. The Commission finds that the agency has not fully
complied with the Commission's order. The agency shall implement the
order for relief set forth below.
ORDER
Within sixty (60) days of the date on which this decision becomes final,
the agency shall calculate the additional back pay and interest owed to
petitioner in the manner prescribed above. The agency shall provide a
copy of these calculations to petitioner. If there is still a dispute
regarding the exact amount of back pay and/or benefits, the agency
shall issue a check to the petitioner for the undisputed amount within
sixty (60) calendar days of the date the agency determines the amount
it believes to be due. The petitioner may petition for enforcement or
clarification of the amount 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.�
Within sixty (60) days of the date on which this decision becomes final,
the agency shall reimburse petitioner's added tax burden in the amount
of $19,540.
Within sixty (60) days of the date on which this decision becomes final,
the agency shall determine whether petitioner is entitled to a uniform
allowance and reimburse him accordingly, if necessary.
To the extent that the agency has not done so, within sixty (60) days of
the date on which this decision becomes final, the agency shall provide
petitioner with applicable matching retirement contributions for the
back pay period.
Within sixty (60) days of the date on which this decision becomes final,
the agency shall clarify the discrepancies noted by petitioner with
respect to the missing back pay for pay periods 12 and 17 in 1994.
Within sixty (60) days of the date on which this decision becomes final,
the agency shall reimburse petitioner $200 for the fitness for duty
expense in July 1999.
Within sixty (60) days of the date on which this decision becomes final,
the agency shall reimburse petitioner $9,400 in attorney's fees.
To the extent that the agency has not done so, within sixty (60) days of
the date on which this decision becomes final, the agency shall make an
unconditional offer of reinstatement to petitioner of the limited duty
position of City Carrier, Utility Route U-6, at the Wyandotte, Michigan,
Post Office.
The agency is further directed to submit a report of compliance, as
provided in the statement entitled �Implementation of the Commission's
Decision� and provide a copy of the report to the petitioner. The report
shall include evidence that the corrective action has been implemented
including supporting documentation of the agency's calculation of back
pay and interested.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)
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
petitioner. If the agency does not comply with the Commission's order,
the petitioner may petition the Commission for enforcement of the order.
29 C.F.R. � 1614.503(a). The petitioner 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 petitioner 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 petitioner 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.
ATTORNEY'S FEES (H0900)
If petitioner has been represented by an attorney (as defined by
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.
PETITIONER'S RIGHT TO FILE A CIVIL ACTION (R0900)
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
June 16, 2004
__________________
Date
1 For reasons set forth below, we find that our previous decision pertains
to all three claims. Accordingly, we find that the Commission correctly
identified the amount of compensatory damages that petitioner was seeking.
2 As set forth above, the issue of compensatory damages has been
previously resolved.
3 Petitioner was reinstated on April 12, 1999.
4 The Commission has no authority to modify a Commission order in a
Petition for Enforcement.
5 �Petition 4" pertains to compensatory damages which we have previously
addressed herein.
6 Petitioner does not dispute the costs awarded by the agency.
7 While the agency argues that April 28, 1997 is the cut off date, we
find that the record shows that petitioner's attorney filed the second
appeal on June 3, 1997.
8 Since we find that the agency did not fully comply with the Commission's
1998 and 1999 decisions, we find that petitioner is entitled to seek
attorneys fees associated with compliance efforts. However, such
attorney's fees are the subject of a new attorney fee petition as set
forth herein-below.
9 The agency does not dispute petitioner's attorney's hourly rate.