0420070026
09-11-2009
Marvin T. Moore, Petitioner, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Marvin T. Moore,
Petitioner,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Petition No. 0420070026
Appeal No. 0720050084
Hearing No. 370-2004-00099X
Agency No. 1F-941-0061-03
DECISION ON A PETITION FOR ENFORCEMENT
On July 5, 2007, the Equal Employment Opportunity Commission (EEOC or
Commission) docketed a petition for enforcement to examine the enforcement
of an order set forth in Marvin T. Moore v. United States Postal Service,
Appeal No. 0720050084 (March 6, 2007). 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
order that it pay him $120,000.00 in non-pecuniary, compensatory damages.
Petitioner filed a complaint in which he claimed that the agency
discriminated against him on the bases of his race (Black) and in
reprisal for his previous EEO activity in violation of Title VII of
the Civil Rights Act of 1964, as amended,, 42 U.S.C. � 2000e et seq.
A hearing was held before an EEOC AJ and the AJ issued a decision finding
discrimination on each of the alleged bases. The agency subsequently
issued a decision not to implement the AJ's decision and filed an appeal
with the Commission. In EEOC Appeal No. 0720050084, the Commission
found that the AJ's findings of race and reprisal discrimination were
supported by substantial evidence.
The order specified that the agency had to pay complainant $120,000.00
in non-pecuniary, compensatory damages. The order also provided that
the agency pay complainant with appropriate back pay (including overtime)
of $5,069.00 per month, with interest, from February 27, 2003, to August
2, 2005. The order further stated that the agency shall calculate
petitioner's entitlement to future pecuniary damages and pay petitioner
the determined amount of future pecuniary damages based on his final
salary with the agency for a period of two years from August 3, 2005.
The order noted that any future pecuniary damages paid to petitioner must
be offset by the amount of any wage replacement benefits he received
from the Office of Workers' Compensation Programs (OWCP), any fringe
benefits which have been continued under OWCP, and any wages he earned
working in any position for a period of two years from the date of the
agency's final order.
The record reveals that petitioner was represented by Attorney A at
the hearing and subsequently on appeal. On April 4, 2007, the agency
forwarded to Attorney A's law firm a check in the amount of $120,000.00
that was made payable to petitioner and the law firm. The record contains
a letter dated June 25, 2007, from petitioner to the law firm stating
that "[e]ffective immediately, you are not authorized to represent me
in any forum."
On July 5, 2007, petitioner submitted the petition for enforcement at
issue. Petitioner contends that the agency failed to comply with the
provisions of the order that directed the agency to pay him $120,000.00
in non-pecuniary, compensatory damages and provide him with appropriate
back pay. Petitioner maintains that the check sent by the agency on April
4, 2007, should have been issued only to him. Petitioner argues that
additional funds should be issued to him. Petitioner also denies that he
entered into an agreement with the law firm that had represented him that
would have allowed the firm to claim 1/3 of any settlement or judgment.
The agency subsequently submitted a request to the Commission for a
ruling on the award of the damages checks. According to the agency,
on March 19, 2007, Attorney A presented it with a copy of a lien with
petitioner's signature on it. The agency noted that the lien stated
that the attorney "shall have a lien for services rendered and costs
advanced on any sums recovered, whether by settlement or judgment, on
account of the Client's claims" and the "Client gives the Attorney the
power and authority . . . to receive on the Client's behalf any monies
or other things of value to which the Client may be entitled because of
any judgment recovered . . ." The agency stated that on June 20, 2007,
petitioner claimed that the compensatory check sent to Attorney A's firm
should be voided and reissued solely to him. The agency further stated
that on June 25, 2007, petitioned requested that a back pay award check
be issued solely to him.
The agency requested that the Commission hold that its actions with regard
to the compensatory damages check were appropriate. In the alternative,
the agency requested that any order to the contrary include directing
Attorney A to return the check before ordering the agency to issue a
check made out solely to petitioner. Finally, the agency asked the
Commission to whom it should make out the back pay check. The agency
subsequently notified the Commission that its calculations showed that
petitioner would have earned a little more than $5,069.00 per month.
The agency requested that the Commission revise its order to reflect
back pay of at least $5,069.00 per month rather than $5,069.00 per month.
In response, Attorney A asserts that its retainer agreement with
petitioner provided that the law firm would be entitled to 1/3 of the
gross recovery minus any award of attorney's fees paid by the agency.
Petitioner's Attorney A states that pursuant to the retainer agreement,
any checks issued be made out to both the firm and petitioner in order
to fulfill the lien. Attorney A notes that she has not received any
calculations from the agency as to the determination of amounts owed to
petitioner for back pay and loss of future earning capacity. Attorney A
states that these calculations are necessary in order to determine the
disputed amount - the 1/3 minus the attorney's fees award. Attorney A
requests that the calculations be provided to the law firm and that the
agency be ordered to provide all checks to the law firm.
We first address petitioner's claim that the agency failed to pay him
the non-pecuniary, compensatory damages ordered. The Commission's
previous decision ordered the agency to pay complainant $120,000.00
in non-pecuniary, compensatory damages. The record reveals the agency
sent a check in the amount of $120,000.00 to the law firm representing
petitioner on appeal (Attorney A is employed by that law firm) and
making the check out to both the law firm and petitioner. At the time
the agency forwarded the check to the law firm, the agency acted upon
the law firm's representation that a lien was in effect as a result
of the retainer agreement entered into by complainant. The check was
issued prior to petitioner's notification that the law firm would no
longer represent him. Upon review, we find there was no bad faith by the
agency in issuing the check jointly payable to petitioner and Attorney A.
Moreover, we note that Civil Action No. CGC07-467590 concerning the
appropriation of the $120,000.00 of the non-pecuniary, compensatory
damages between petitioner and Attorney A is currently pending in the
Superior Court of California County of San Francisco. Therefore, we shall
not address the dispute between petitioner and his former attorney as to
the validity of the retainer agreement and the purported lien therein.
Given the civil action and absence of bad faith by the agency in payment
of the non-pecuniary, compensatory damages we shall not order the agency
to at this time take any further action regarding the non-pecuniary,
compensatory damages.
We next address petitioner's contention that the agency failed to pay him
the appropriate back pay. We note the record contains no documentation
that petitioner was issued a check for back pay or future loss of earning
capacity (future pecuniary damages) as specified in our previous decision.
Moreover, we note the agency acknowledges it was unsure whether to issue
a back pay check to petitioner and/or to Attorney A. As the agency is
now on notice that petitioner is no longer represented by Attorney A's
firm we find that any check issued subsequent to the agency's receipt
of this decision as payment of back pay or as payment for future loss
of earning capacity (future pecuniary damages) must be forwarded only
to petitioner and made payable only to petitioner. Additionally, if the
agency's calculations of the back pay to which petitioner is entitled are
greater than the $5,069.00 amount specified in the previous decision's
order, we note that our previous decision does not preclude the agency
from paying petitioner that greater amount.
CONCLUSION
Accordingly, the Commission finds the agency has not fully complied
with our previous Order set forth in EEOC Appeal No. 0720050084 and must
take additional steps to be in full compliance. The agency is therefore
directed to comply with the Order herein.
ORDER
The agency is ordered to take the following remedial actions:
1. The agency shall within 30 days after the date this decision becomes
final issue a check directly to petitioner and made payable only to
petitioner reflecting the amount of back pay due.
2. The agency shall within 30 days after the date this decision
becomes final issue a check to petitioner for the amount based on its
calculations that petitioner is due for future loss of earning capacity
(future pecuniary damages). The agency shall send the check directly
to petitioner and make it payable only to petitioner.
3. The agency shall provide petitioner calculations of back pay and
future loss of earning capacity (future pecuniary damages).
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 of the
agency's calculation of back pay and future pecuniary damages due
petitioner, including evidence that the corrective action has been
implemented.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0408)
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 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.
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (R0408)
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 (Z1008)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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 with
the Court 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
September 11, 2009
__________________
Date
2
0420070026
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0420070026
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