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.