) Petition No. 04990001

Equal Employment Opportunity CommissionFeb 25, 2000
04990001 (E.E.O.C. Feb. 25, 2000)

04990001

02-25-2000

) Petition No. 04990001


Melody Sands v. Department of Defense

04990001

February 25, 2000

Melody Sands, )

Petitioner, )

) Petition No. 04990001

v. ) Appeal No. 01955520

)

William S. Cohen, )

Secretary, )

Department of Defense, )

Agency. )

)

DECISION ON PETITION FOR ENFORCEMENT

Melody Sands (petitioner) filed a Petition for Enforcement with the Equal

Employment Opportunity Commission (Commission) requesting enforcement

of the order for remedial relief set forth in Alma J. Burrow et

al. v. Department of Defense, EEOC Appeal No. 01955462 (February 27,

1998).<1> Pursuant to that Order, the Commission directed the agency

to redress petitioner following a finding that agency officials had

discriminated against her in violation of Title VII of the Civil Rights

Act of 1964, as amended, 42 U.S.C. � 2000e et seq. This petition

for enforcement is accepted by the Commission pursuant to 29 C.F.R. �

1614.503.<2>

ISSUE PRESENTED

The issue presented is whether the agency fully complied with the

Commission's Order in EEOC Appeal No. 01955462.

BACKGROUND

Petitioner was one of four complainants who filed individual complaints

on December 10, 1993, alleging discrimination when on October 31,

1993, three similarly situated Caucasian employees were changed from

GS-2091 Sales Store Cashiers to GS-530 Cash Clerks at the Tinker Air

Force Base Commissary, in Fort Lee, Virginia. This action resulted

in an increase of pay and promotional opportunities while complainants

(all African-Americans), who had more seniority, were not reassigned.

Since the four claims were based on the same issues, the complaints were

consolidated for processing.

Following an investigation, the agency issued a Report of Investigation

(ROI) finding that all four complainants had been discriminated against

because of their race. Complainants requested a hearing. However,

after determining there existed no genuine disputes of material facts,

an administrative judge (AJ) issued a decision without a hearing finding

discrimination against all four complainants. The AJ recommended that:

(1) three of the complainants (including petitioner herein) be offered

promotions, retroactive to the date of selection with interest on the

back pay; (2) complainants be offered full training; (3) responsible

agency officials be given EEO sensitivity training and that their

conduct towards African-American employees be closely monitored; (4)

a discrimination notice be posted for no less than nine months; and (5)

complainants be awarded reasonable attorneys' fees.

The agency ultimately adopted the findings of discrimination and

issued a final agency decision (FAD) determining attorneys' fees and

compensatory damages. However, unsatisfied with the amount to be awarded

each complainant and the corrective action in remedying discrimination,

all four complainants appealed.

In a previous decision, the Commission affirmed the agency's finding of

discrimination and ordered the following relief:

(1) If the agency has not already done so, the agency shall follow the

AJ's recommendation and offer [complainant . . .] Sands, placement [in]

the position[] of Sales Clerk at the Tinker Air Force Base Commissary or

[an] equivalent position[], retroactive to October 30, 1993. The agency

shall accomplish this action within sixty (60) calendar days of the date

this decision becomes final.

(2) If it has not already done so, the agency shall determine the

appropriate amount of back pay, interest, and other benefits due

[complainants], including full training, pursuant to 29 C.F.R. �

1614.501, no later than sixty (60) calendar days after the date

this decision becomes final. [Complainants] shall cooperate in the

agency's efforts to compute the amount of back pay and benefits due,

and shall provide all relevant information requested by the agency.

If there is a dispute regarding the exact amount of back pay and/or

benefits, the agency shall issue checks to the designated [complainant]

for the undisputed amount within sixty (60) calendar days of the date

the agency determines the amount it believes to be due. [Complainants]

may petition for enforcement or clarification of the amounts in dispute.

The petitions for clarification or enforcement must be filed with the

Compliance Officer at the address referred to in the statement entitled,

"Implementation of the Commission's Decision."

(3) The agency shall take immediate steps, no later than sixty (60)

days after this decision becomes final, to provide training to all

supervisory and managerial staff at its Tinker Air Force Base Commissary

on the current state of the law on employment discrimination, including

discrimination based on race, sex, and disability and the goals behind

requiring equal employment opportunity for all.

(4) Within thirty (30) days of the date on which this decision becomes

final, the agency shall tender to each of the four [complainants]

additional nonpecuniary and future pecuniary compensatory damages in

the amount of $10,000 for a total of [ . . .] $10,000 for Sands.

(5) The agency shall pay reasonable attorneys' fees incurred in the

processing of this complaint as described below.

(6) 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 other benefits due [complainants],

including evidence that the corrective action has been implemented.

(7) Having posted a Notice of Discrimination from June 2, 1995 through

March 2, 1996, the agency has fulfilled its posting obligation.

The previous decision also noted that petitioner raised disability

discrimination for the first time on appeal. The previous decision

did not address this issue finding that it was not a previously raised,

accepted, or investigated claim.

There is no dispute between the parties that the effective date of the

promotion was October 30, 1993. There is also no dispute that petitioner

was on enforced leave intermittently after the effective date of the

promotion during which time she received compensation from the Office

of Workers' Compensation Programs (OWCP).

On July 7, 1998, the agency issued its compliance report to the Office

of Federal Operations, Compliance and Control Division (Compliance).

The report indicated that:

. . . Back pay from October 30, 1993 to January 3, 1995 total[ed]

$405.71. . . .[Complainant was not paid interest as directed by the EEOC

and this Agency will pay interest for the back pay which was awarded

from October 30, 1993 to January 3, 1995 at an amount sanctioned by

the Federal government on the total of $405.71. [Complainant] was

not paid back pay for the time she was compensated for her injury via

Workers' Compensation (Enforced Leave). Workers Compensation (OWCP)

is 75% of an employees gross salary, nontaxable. [Complainant's] back

pay entitlement would have been taxable and would have resulted in

approximately the same amount of money. Back pay calculations do not

replace bona fide entitlements to injury compensation. In addition,

[complainant] was on Leave Without Pay (LWOP) for the period June 7,

1994 through July 11, 1994. Back pay entitlements do not cover periods

where the employee did not perform work due at their request. Therefore,

these deductions to the time of back pay were made and adjustments to

the entitlement for the days worked were made.

In letters dated September 10, 1998 and October 9, 1998, petitioner's

counsel notified the Commission that the agency did not pay all of the

back pay due petitioner. Petitioner's counsel contests the agency's

rejection of an award of back pay, with interest, during the time

periods petitioner was on enforced leave and receiving OWCP benefits

because petitioner "was forced to take worker's compensation pay rather

than given an opportunity to perform duties at the GS-04 position with

or without reasonable accommodation." Petitioner's counsel also argued

that the agency has denied him attorney's fees since he began representing

petitioner in April of 1995.

ANALYSIS AND FINDINGS

At the outset, the Commission notes that the agency, the AJ, and

the Commission's previous decision all found discrimination based on

petitioner's race, not disability. The previous decision did not address

petitioner's disability claim, first raised on appeal, noting that it

was not a previously raised, accepted, or investigated claim. Similarly,

the Commission will not now address petitioner's arguments with regard to

her back pay to include whether the agency "forced" her take OWCP benefits

when they did not reasonably accommodate her disability. Consequently,

the following decision will only address the disputed elements of the

relief awarded in the previous decision.

Back Pay

The agency and the petitioner disagree as to whether, and to what extent,

petitioner is entitled to an award of back pay for the periods of time

that she was on enforced leave, i.e., non-duty status, and receiving

workers' compensation wage-replacements benefits under Federal Employees

Compensation Act (FECA). It is well settled that worker's compensation

awards do not preclude recoveries for discrimination, such as back pay,

where such awards do not result in double recovery. Miller v. Bolger, 802

F.2d 660, 664 (3rd Cir. 1986); Ferguson v. United States Postal Service,

EEOC Request No. 05880848 (May 8, 1990). The Commission further held

that FECA does not limit the "make whole" relief to which a victim

of discrimination is entitled to under Title VII. Davis v. United

States Postal Service, EEOC Petition No. 04900010 (November 29, 1990).

The Commission reaffirmed its position in Finlay v. United States Postal

Service, EEOC Appeal No. 01942985 (April 30, 1997).

An OWCP award that is meant to compensate for lost wages should be

deducted from the total amount of back pay to which the petitioner is

entitled in order to avoid double wage recovery, but the portion of the

OWCP award that is paid as reparation for physical injuries should not be

deducted from back pay because it is unrelated to wages earned. See EEOC

v. Blue & White Service Corp., 674 F. Supp. 1579, 1582 (D. Minn. 1987);

Ferguson, EEOC Request No. 05880848 at pp. 12-3. Consequently, because

petitioner's OWCP award was meant to compensate her for lost wages,

she is entitled to the difference between the total amount of back pay

that she would have earned during the intermittent periods she was on

enforced leave, and the amount of the OWCP award that she received during

those times.

Absent a finding of racial discrimination, petitioner would have been

paid at the GS-4, not the GS-3, grade level starting on October 30, 1993.

Therefore, petitioner is entitled to back pay, with interest, from

October 30, 1993, until such time she left service. This award must,

however, be offset by what the complainant actually received from OWCP

during the period covered by the back pay award.

Attorney's Fees

By Federal regulation, an agency must award attorney's fees, in accordance

with existing case law and regulatory standards, for the successful

processing of an EEO complaint. 64 Fed. Reg. 37, 644, 37, 656 (1999)

(to be codified and hereinafter referred to as 29 C.F.R. �1614.501(e)).

The fee award is normally determined by multiplying the number of

hours reasonably expended on the case by a reasonable hourly rate.

Blum v. Stenson, 465 U.S. 886 (1984); Hensley v. Eckerhart, 461 U.S. 424

(1983); 29 C.F.R. � 1614.501(e)(2)(ii)(B). The attorney requesting

the fee award has the burden of proving, by specific evidence, his or

entitlement to the requested amount of attorney fees and costs in the

matter. Copeland v. Marshall, 641 F.2d 880, 892 (D.C. Cir. 1983).

By letter dated April 10, 1996, the record establishes that the agency

paid petitioner's first attorney (Attorney A), now deceased, $26,342.50

in reasonable attorney's fees. On March 27, 1998, petitioner's second

attorney (Attorney B) submitted an attorney's fees request to the agency

for a total of $21,000. By letter dated April 23, 1998, the agency

summarily denied this second request for fees noting that the record

reflected that Attorney B made no submissions in petitioner's case and

that petitioner failed to notify the agency that she was represented by

this attorney in accordance with 29 C.F.R. � 1614.501.

The record establishes, however, that Attorney B made a submission in

support of petitioner's case as early as August 14, 1995. Moreover,

petitioner notified the Commission of Attorney B's representation by

letter dated January 16, 1996. However, the record is not clear when

the legal services of Attorney A ceased and that of Attorney B began.

The record shows, however, that there may have been some duplication

of work and hours during 1995, when Attorney B alleges to have began

representing petitioner. In fact, Attorney B's billing sheet reflects a

brief description of services on August 8, 1995. The billing description

reads: "Contacted Burroughs [co-complainant] re [sic] who was handling

deceased atty's [sic] files, to corroborate completion of my files

restock any evidence of counselling [sic] therapy for [petitioner]."

The date of this billing description provides first, the Commission with

a certain date Attorney A was no longer providing legal services to

petitioner, and second, demonstrates that Attorney B may have overlapped

hours expended by the previous attorney.

The Commission has held that where there is some duplication of hours

a reduction in the number of hours reasonably expended is generally

appropriate. Therefore, in light of the lack of billing records of the

deceased Attorney A and the subsequent difficulty of making a concise

determination as to duplicated and redundant work, we find that Attorney

B should be compensated for the work he performed in this case starting

from August 14, 1995, until the work performed on this petition. A review

of the billing sheets reflects a total of 22.9 hours at $200 per hour for

a total of $4580. Although we recognize that there may have been some

overlap previous to this date, we do not find that the number of hours

expended during the two year period after that date to be unreasonable. We

also find that the $200 hourly rate to be reasonable. Therefore, we

find that the 22.9 hours requested by Attorney B fairly compensates him

for the work he performed, as well as takes into account the inevitable

overlap between the work which Attorney A began, and Attorney B completed.

CONCLUSION

Based on a review of the record, and the forgoing reasons, is the decision

of the Equal Employment Opportunity Commission to award relief as set

forth below.

ORDER

The agency, within sixty (60) calendar days of the date this decision

becomes final, is ORDERED to take the following remedial action:

(1) The agency will re-determine the appropriate amount of back pay

(with interest) utilizing the formula set forth in this decision.

The agency will recalculate the back pay due petitioner and issue a

complete breakdown of its calculation in plain English to be submitted

to petitioner and to this office. Interest will be paid on this amount

from October 30, 1993.

(2) The agency will tender Attorney B fees in the amount of $4580 for

his legal services.

IMPLEMENTATION OF THE COMMISSION'S DECISION (K1199)

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 64

Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter

referred to as 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)(Supp. V 1993). If the petitioner files a civil action, the

administrative processing of the complaint, including any petition for

enforcement, will be terminated. See 64 Fed. Reg. 37,644, 37,659 (1999)

(to be codified and hereinafter referred to as 29 C.F.R. � 1614.409).

COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (P1199)

This decision of the Commission is final, and there is no further right

of administrative appeal from the Commission's decision. You have the

right to file a civil action in an appropriate United States District

Court WITHIN NINETY (90) CALENDAR DAYS from the date that you receive

this decision. 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.

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:

Feb. 25, 2000

_____________________

DATE Frances M. Hart

Executive Officer

Executive Secretariat

CERTIFICATE OF MAILING

For timeliness purposes, the Commission will presume that this decision

was received within five (5) calendar days of mailing. I certify that

the decision was mailed to petitioner, petitioner's representative

(if applicable), and the agency on:

_________________________ __________________________

1 Petitioner's case was consolidated with four other complainants.

2 On November 9, 1999, revised regulations governing the EEOC's federal

sector complaint process went into effect. These regulations apply to all

Federal sector EEO complaints pending at any stage in the administrative

process. Consequently, the Commission will apply the revised regulations

found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the

present appeal. The regulations, as amended, may also be found at the

Commission's website at WWW.EEOC.GOV.