Pamala L.,1 Petitioner,v.Louis DeJoy, Postmaster General, United States Postal Service (Pacific Area), Agency.

Equal Employment Opportunity Commission

Nov 3, 2020

2020001571 (E.E.O.C. Nov. 3, 2020)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Pamala L.,1
Petitioner,

v.

Louis DeJoy,
Postmaster General,
United States Postal Service
(Pacific Area),
Agency.

Petition No. 2020001571

Appeal No. 0120171070

Agency No. 4F945005116

DECISION ON A PETITION FOR ENFORCEMENT

On October 16, 2019, the Equal Employment Opportunity Commission (EEOC or Commission)
docketed a petition for enforcement to examine the enforcement of an Order set forth in EEOC
Appeal No. 0120171070 (November 8, 2018). The Commission accepts this petition for
enforcement pursuant to 29 C.F.R. § 1614.503. Petitioner alleged that the Agency failed to fully
comply with the Commission’s order.

BACKGROUND

At the time of events giving rise to this complaint, Petitioner worked as a Rural Carrier at the
Agency’s Vallejo Main Post Office in Vallejo, California. Petitioner filed a complaint in which
she alleged that the Agency discriminated against her based on her disability (ankle injury) and in
reprisal for prior protected EEO activity in violation of Section 501 of the Rehabilitation Act of
1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. Petitioner appealed the Agency’s
final decision to the Commission, and in Appeal No. 0120171070, the Commission found that the
Agency retaliated against Petitioner when it reduced her work hours and forced her to relinquish
her assigned rural route.

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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The Order also specified that within 120 days, the Agency:

1. Return Petitioner to her former route, Rural Route 12, or a substantially equivalent route,
retroactive to the date that the Agency forced Petitioner to relinquish the route. The Agency
shall provide Petitioner with six (6) hours of modified duty consistent with her current
medical restrictions.

2. Determine the appropriate amount of back pay, with interest, and other benefits due
Petitioner, pursuant to 29 C.F.R. § 1614.501, for any lost earnings Petitioner suffered as a
result of the failure to provide her with six (6) hours of modified duty per day since
February 19, 2016.

3. Pay Petitioner compensation for the adverse tax consequences of receiving back pay as a
lump sum.

4. Conduct a supplemental investigation to determine whether Petitioner is entitled to
compensatory damages as a result of the Agency’s reprisal and issue a new Agency
decision determining Petitioner’s entitlement to compensatory damages.

5. Provide eight (8) hours of training to the responsible management officials, including the
Postmaster, regarding their responsibilities under the Rehabilitation Act. The training shall
have a special emphasis on employees’ responsibilities with respect to Section 501 of the
Rehabilitation Act of 1973 and the prohibition against reprisal.

6. Consider taking appropriate disciplinary action against the responsible management
officials, including the Postmaster. If the Agency decides to take disciplinary action, it shall
identify the action taken. If the Agency decides not to take disciplinary action, it shall set
forth the reason(s) for its decision not to impose discipline. If any of the responsible
management officials have left the Agency’s employ, the Agency shall furnish
documentation of their departure date(s).

7. Post a notice regarding the finding of discrimination.

The Commission also ordered the Agency to pay Petitioner’s attorney’s fees, upon a verified
statement of fees.

The matter was assigned to a Compliance Officer and docketed as Compliance No. 2019000847
on November 20, 2018. On May 30, 2019, the Agency submitted an Interim Report stating that it
had complied with orders 4 and 7, and that compliance with the other orders was ongoing, with
the training for management officials scheduled in June.

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With its report, the Agency provided a copy of Petitioner’s completed form to recover back pay,
in which she noted receiving workers’ compensation payments from March 4, 2016, through
October 4, 2018. The Agency included a back-pay settlement worksheet, noting that Petitioner
received $80,473.05 in workers’ compensation payments from February 19, 2016, through
October 4, 2018. Petitioner’s representative had responded that the Agency’s documentation did
not provide the exact estimates for the back-pay or how the workers’ compensation calculations
were determined, and the Agency provided Petitioner with a table with the breakdown of the
workers’ compensation calculations listing only the date range and amounts.

On October 8, 2019, the Agency submitted another Interim Report. The Agency stated that
compliance was “ongoing” for orders 1 and 2; it was awaiting information from Petitioner for
order 3; and it had complied with orders 4 and 7. For orders 5 and 6, the Agency stated that the
responsible management officials had retired, and it provided supporting documentation. The
Agency also provided a Back Pay Report, which stated that Petitioner’s back-pay totaled
$108,186.81, with her “outside earnings” at $103,179.92. The Agency calculated the difference as
$5,006.90, and after subtracting various deductions, it issued Petitioner a check for $1,359.89.

On October 16, 2019, Petitioner submitted the petition for enforcement at issue. Petitioner
contends that the Agency failed to comply with the Commission’s orders. Petitioner states that she
has been returned to Rural Route 12 as an “Unassigned Regular,” but that this was not a permanent
assignment, “as per the order.” Regarding the back-pay, Petitioner argues that the documentation
provided does not show how the determinations were made, and that her estimated back-pay for
approximately 27 months was $132,000.00. Petitioner states that she received the Agency’s letter
regarding the tax consequences and will respond.

Petitioner stated that she received $2,000.00 for compensatory damages, but the Agency did not
provide any information about how the determination was made.2 For orders 5 and 6, Petitioner
states that she never received information from the Agency about any efforts made to reprimand
the responsible officials. Petitioner also states that the Agency never posted the orders and that it
never paid her attorney’s fees.

ANALYSIS AND FINDINGS

EEOC Regulation 29 C.F.R. § 1614.503(a) provides that an aggrieved person may petition for
enforcement of an order issued by the Commission under its appellate jurisdiction. In this case,
Petitioner alleges that the Agency is not in compliance with the Commission’s orders in EEOC
Appeal No. 0120171070.

After a review of the record, we find that the Agency has shown that it complied with orders 1, 4,
5, 6, and 7. For order 1, Petitioner stated that the Agency returned her to Rural Route 12.

2 Petitioner appealed the Agency’s decision on her compensatory damages, which was addressed
in Charlotte H. v. U.S. Postal Service, EEOC Appeal No. 2019003018 (August 18, 2020).
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While Petitioner argues that it is not a permanent assignment “as per the order,” we note that our
previous order did not specify the permanence of the assignment. As such, we find that the Agency
complied with order 1. We further find that the Agency provided documentation showing its
compliance with orders 4-7.

However, we find that the Agency failed to show compliance with orders 2 and 3, and the order to
pay Petitioner’s attorney’s fees. Regarding back-pay, the Commission has found that it is
reasonable to require an agency to provide clear and concise “plain language” statements of the
formulas and methods used to calculate a petitioner’s back-pay, and that that it is the Agency’s
obligation to ensure that its back-pay calculations are clear, supported in the record, and in
accordance with 29 C.F.R. § 1614.501. See Vashi v. U.S. Postal Serv., EEOC Petition No.
0420060009 (Dec. 5, 2007).

Here, the Agency did not provide sufficient information regarding its calculation of Petitioner’s
back-pay award of $5,006.90. The Agency’s Back Pay Report shows that for each pay period, it
multiplied a certain number of hours by Petitioner’s base pay. However, there is no additional
information explaining how the Agency determined these calculations. For example, the Agency
did not provide an explanation for the varied number of hours used for each pay period, which
range from zero hours to 60 hours each pay period.

In addition, we find that the Agency did not explain how it determined the total for its deductions
for Petitioner’s “outside employment,” which was Petitioner’s workers’ compensation payments.
The Agency’s Back Pay Report notes the total for workers’ compensation payments was
$103,179.92, and the Agency gave Petitioner a table showing the amounts for each biweek, from
February 20, 2016, through October 4, 2018, totaling $80,473.05. However, the Agency did not
explain how it came up with their figures of $80,473.05 and $103,179.92, nor provide any
supporting documentation for these calculations.

Further, while a Federal Employees’ Compensation Act (FECA) award is meant to compensate
for lost wages and it should be deducted from the total amount of back-pay to which Petitioner is
entitled in order to avoid double wage recovery, the portion of the award that is paid as reparation
for physical injuries should not be deducted from back-pay because it is unrelated to wages earned.
If an agency contends that a petitioner’s receipt of workers’ compensation benefits would result in
double recovery, the agency must show what portion of a petitioner’s FECA benefits, if any,
applied to back-pay, leave, and other benefits, and what portion of a petitioner's FECA benefits, if
any, applied to reparation for physical injuries. See Ulloa v. U.S. Postal Serv., EEOC Petition No.
04A30025 (Aug. 3, 2004). In this case, the lack of information makes it impossible to determine
if the Agency’s total deduction for Petitioner’s workers’ compensation payments was appropriate.
Accordingly, we find that the Agency has failed to show that it properly complied with order 2.
We also find that the Agency has not yet shown compliance with order 3.

In addition, we find that the Agency has not shown compliance with the order to provide
Petitioner’s attorney’s fees. Petitioner asserts that the Agency did not pay attorney’s fees.
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However, it is not clear if Petitioner submitted a verified fee petition to the Agency, as required by
29 C.F.R. § 1614.501(e), and the record is devoid of any information regarding the payment of
attorney’s fees. Further, because Petitioner is a prevailing party in this petition for enforcement,
we also order the Agency to award Petitioner attorney’s fees incurred as a result of her need to file
this petition for enforcement.

Accordingly, based on a thorough review of the record, the Commission GRANTS Petitioner's
Petition for Enforcement and REMANDS this matter to the Agency for further processing
consistent with this decision and the ORDER below.

ORDER

Within thirty (30) calendar days of the date of this decision, the Agency shall provide a detailed
statement of all of its calculations, clarifying how Petitioner’s back-pay award was reached, and
include supporting documentation, to Petitioner, Petitioner’s counsel and the Commission. The
statement shall consist of a clear and concise, “plain language” statement of the methods of
calculation used for the instant matter and actual calculations applying said formulas and methods.
The Agency shall determine whether it properly calculated the correct amount for workers’
compensation payments from Petitioner's back-pay award, and if an improper amount was
deducted, it shall credit the proper amount back to Petitioner.

After the Agency has calculated and paid Petitioner's back pay award, Petitioner shall have sixty
(60) calendar days following the end of the tax year in which the final payment is received to
calculate the adverse tax consequences of any lump sum back pay awards, if any, and notify the
Agency. Following receipt of Petitioner’s calculations, the Agency shall have forty-five (45) days
to issue Petitioner a check compensating her for any adverse tax consequences established, with a
written explanation for any amount claimed but not paid.

The Agency is further directed to submit a report of compliance in digital format as provided in
the statement entitled “Implementation of the Commission's Decision.” The report shall be
submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Further, the
report must include supporting documentation of the Agency's calculation of back-pay and other
benefits due Petitioner, including evidence that the corrective action has been implemented.

ATTORNEY'S FEES (H1016)

If Petitioner has been represented by an attorney (as defined by 29 C.F.R. § 1614.501(e)(1)(iii)),
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 receipt of this
decision. The Agency shall then process the claim for attorney's fees in accordance with 29 C.F.R.
§ 1614.501.

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IMPLEMENTATION OF THE COMMISSION’S DECISION (K0719)
Under 29 C.F.R. § 1614.405(c) and § 1614.502, compliance with the Commission’s corrective
action is mandatory. Within seven (7) calendar days of the completion of each ordered corrective
action, the Agency shall submit via the Federal Sector EEO Portal (FedSEP) supporting documents
in the digital format required by the Commission, referencing the compliance docket number under
which compliance was being monitored. Once all compliance is complete, the Agency shall
submit via FedSEP a final compliance report in the digital format required by the Commission.
See 29 C.F.R. § 1614.403(g). The Agency’s final report must contain supporting documentation
when previously not uploaded, and the Agency must send a copy of all submissions to Petitioner
and his representative.
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). 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, 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 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.
Failure by an agency to either file a compliance report or implement any of the orders set forth in
this decision, without good cause shown, may result in the referral of this matter to the Office of
Special Counsel pursuant to 29 C.F.R. § 1614.503(f) for enforcement by that agency.
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.

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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 Petitioner’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

November 3, 2020
Date