0420090006
11-04-2009
Paul C. Carroll, Petitioner, v. Michael B. Donley, Secretary, Department of the Air Force, Agency.
Paul C. Carroll,
Petitioner,
v.
Michael B. Donley,
Secretary,
Department of the Air Force,
Agency.
Petition No. 0420090006
Petition No. 0420070018
Appeal No. 0720060064
Hearing No. 140-2005-00086X
Agency No. 4130040601F06
DECISION ON A PETITION FOR ENFORCEMENT
On October 20, 2008, the Equal Employment Opportunity Commission (EEOC
or Commission) docketed a petition for enforcement to examine the
enforcement of an order set forth in Paul C. Carroll v. Department of
the Air Force, Appeal No. 0420070018 (February 29, 2008). 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.
Petitioner filed a complaint in which he claimed that the agency
discriminated against him on the bases of age and in reprisal for
prior protected EEO activity under the Age Discrimination in Employment
Act of 1967 (ADEA). Subsequent to a hearing, an EEOC Administrative
Judge (AJ) issued a decision finding that petitioner was discriminated
against based on age and age related reprisal when he was not selected
for a GS-11, Non-Supervisory Air Traffic Control Specialist (Terminal)
position at the agency's North Carolina Air National Guard facility.
The agency issued a final action wherein it declined to implement
the AJ's finding of discrimination and appealed the AJ's decision to
the Commission. In EEOC Appeal No. 0720060064, the Commission modified
the agency's final order, finding that the agency discriminated against
petitioner when he was not selected for the aforementioned position and
ordered that he be offered the position of Non-Supervisory Air Traffic
Control Specialist (Terminal) or a substantially equivalent position.
The order further stated that the agency had to pay back pay and interest
on back pay where sovereign immunity had been waived.
On July 10, 2007, petitioner filed a petition for enforcement.
Petitioner claimed that the agency failed to offer him the position
that he would have occupied absent discrimination or a substantially
equivalent position. Petitioner also claimed that the agency was not in
compliance with the Commission's order regarding back pay. According to
petitioner, he received a check for $131,361.75 as payment for back pay,
but the payment failed to include interest, night differential pay,
bonuses, compensatory time and sick leave due him. Petitioner also
requested compensatory damages and attorney's fees.
In EEOC Petition No. 0420070018, the Commission found that the
agency established that the original position for which petitioner
was nonselected had been abolished in good faith. However, we stated
that the agency's offer of an Air Traffic Control Specialist position
in St. Joseph, Missouri was not substantially equivalent to the Air
Traffic Control Specialist position denied petitioner in North Carolina.
We based our finding on the fact that the position in Missouri was not
located close to the North Carolina position. We therefore ordered the
agency to offer petitioner a substantially equivalent position that was
similar in duties, responsibilities and location to the position that
he would have occupied. With regard to the back pay due petitioner,
we observed that although the agency paid petitioner $131,361.75, it
subsequently stated that it made an error in calculating back pay and
that the proper amount due was $110, 258.67.
Upon remand, we therefore instructed the agency to clarify its
calculations for back pay, specifically detailing how it determined
petitioner's gross salary due and its method of calculating outside
earnings during the relevant period. We further instructed the agency
to provide documentation indicating its calculations for all other
leave and benefits due petitioner as well as evidence that petitioner
received payment for these amounts. We rejected petitioner's claim
for interest on the back pay award, noting that an award of interest on
back pay is not available as a remedy under the ADEA. We also declined
to award compensatory damages or attorney's fees since the finding of
discrimination was based on age and age related reprisal.
On October 20, 2008, petitioner filed the instant petition for enforcement
with the Commission. Petitioner claims that although he has returned
to work and received approximately $199,000.00 in back pay, the agency
has still not paid him for leave, overtime/compensatory time or bonuses.
Petitioner states that the agency is refusing to pay interest on back pay.
Petitioner argues that the Back Pay Act of 1967, as amended in 1978
and 1987, created a limited waiver of sovereign immunity and that it
provides for the payment of attorney's fees and interest on back pay.
Petitioner maintains that since reprisal occurred an award of compensatory
damages and attorney's fees is appropriate.
In response, the agency asserts that petitioner was issued back
pay without interest because interest on an award of back pay is not
available as a remedy under the ADEA. The agency notes that the remedy
provision of the ADEA does not mention interest and the doctrine of
sovereign immunity shields the Federal Government from interest awards
absent an express statutory waiver. The agency notes that petitioner
accepted the offer of employment and began employment with the agency as
an Air Traffic Control Specialist on June 2, 2008. The agency further
asserts that petitioner is not entitled to recover compensatory damages
or attorney's fees since his claim arises under the ADEA. The agency
states that the ADEA permits the recovery of only equitable relief and
precludes the payment of attorney's fees. The agency maintains that the
Petition for Enforcement should be denied because it is in compliance
with the Commission's order.
The record contains a May 6, 2008 letter offering petitioner the
position of a Non-Supervisory Air Traffic Control Specialist (Terminal),
GS-2152-11, step 10, with the 235th Air Traffic Control Squadron located
in New London, North Carolina. The offer informed petitioner that if
accepted, his appointment shall be retroactive to December 1, 2003.
The offer stated petitioner had 15 days to accept or decline the offer.
The agency notes petitioner accepted the offer on May 29, 2008, and states
he started working at the agency on June 2, 2008. In his October 20,
2008 petition, petitioner acknowledges he has begun working for the
agency and does not raise any challenges to the position he accepted.
With regard to petitioner's claim for interest on the back pay award,
we reiterate the position taken in our previous decision. The Commission
has consistently recognized that interest on an award of back pay is not
available as a remedy under the ADEA. Ryan v. Department of Defense, EEOC
Petition No. 04960005 (November 7, 1996). As for petitioner's request
for compensatory damages and attorney's fees, the record establishes that
the discrimination finding was based on age and age related reprisal.
Therefore, pursuant to the ADEA, petitioner is not entitled to an award
of compensatory damages or attorney's fees.
With respect to the amounts excluding interest that petitioner claims
the agency failed to include in the back pay award of approximately
$199,000.00, we observe that the order in our previous decision provided
that the agency shall provide documentation indicating how it determined
the amount of back pay due petitioner, specifically, detailing how it
determined petitioner's gross salary due and its method of calculating
outside earnings during the relevant period. We further instructed
the agency to provide documentation indicating its calculations for
all other leave and benefits due petitioner as well as evidence that
petitioner received payment for these amounts. The record does not
contain any documentation reflecting back pay calculations; nor does the
record contain documentation indicating calculations for the amounts for
leave, overtime/compensatory time, or bonuses, or proof that petitioner
received payment for the amounts claimed. In its response, the agency
did not address petitioner's contentions that the amount of back pay
did not include payment for other leave, overtime/compensatory time,
or bonuses. We also note the agency failed to provide any of the back
pay calculations or documentation previously ordered by the Commission.
CONCLUSION
Accordingly, the Commission finds that the agency has not fully complied
with our previous Order set forth in EEOC Petition No. 0420070018
(February 29, 2008) 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 action:
Within 30 days of the date this decision becomes final, the agency
shall provide its calculations for back pay, specifically, at a minimum
detailing how it determined petitioner's gross salary due and its
method of calculating outside earnings during the relevant period.
Additionally, the agency shall provide documentation indicating its
calculations for other leave and benefits due petitioner and shall
provide evidence petitioner received payment for these amounts.
Documentation showing compliance with this Order shall be sent to the
Compliance Officer referenced herein.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K1208)
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.
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
November 4, 2009
__________________
Date
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0420090006
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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