) Petition No. 04990046

Equal Employment Opportunity CommissionMar 23, 2000
04990046 (E.E.O.C. Mar. 23, 2000)

04990046

03-23-2000

) Petition No. 04990046


William D. Moore v. Department of the Army

04990046

March 23, 2000

William D. Moore, )

Petitioner, )

) Petition No. 04990046

v. ) Appeal No. 01944936/05960093

) Agency No. 92120030

Louis Caldera, )

Secretary, )

Department of the Army, )

Agency. )

____________________________________)

DECISION ON A PETITION FOR ENFORCEMENT

On August 12, 1999, the Equal Employment Opportunity Commission (EEOC or

Commission) docketed a petition for enforcement to examine the agency's

compliance with the Order set forth in William D. Moore v. Army, EEOC

Request No. 05960093 (October 16, 1998). This petition for enforcement

is accepted by the Commission pursuant to 29 C.F.R. � 1614.503.<1>

For the reasons set forth below, the Commission DENIES the petition.

In William D. Moore v. Army, EEOC Appeal No. 01944936 (October

2, 1995), the Commission held that petitioner had failed to prove

disability discrimination when the agency reassigned him from a light

duty Mechanic position to a permanent modified Locksmith position in

February 1993. Petitioner filed a timely request for reconsideration,

which the Commission granted, overturning its determination in the

prior decision, and finding that petitioner had proven his claim of

disability discrimination. See William D. Moore v. Army, EEOC Request

No.05960093 (October 16, 1998). In pertinent part, the Order in this

decision specified that the agency was to provide petitioner with:

"back pay with interest and benefits." The matter was assigned to a

Compliance Officer and docketed as EEOC Compliance No. 06990097.

On August 5, 1999, petitioner filed the petition for enforcement at issue.

Petitioner contends that he has been involved with an on-going dispute

with the agency regarding its compliance with the above referenced Order.

He claims that the agency failed to provide him with compensation for

overtime requested and denied from November 12, 1992, to February 18,

1993, for a total of 250 hours of overtime. Petitioner additionally

contends that the agency failed to compensate him for 434 hours of

overtime which he would have earned from February 22, 1993, to May

22, 1993, but for the discriminatory reassignment. In sum, petitioner

claims that he is entitled to payment for 680 hours of overtime pursuant

to our Order. Petitioner also claims that he is entitled to a group

award, amount unspecified, which he also would have received but for the

discriminatory reassignment.<2> The agency responded to this petition

by memorandum dated August 24, 1999.

1. Award for denied overtime requests (November 12, 1992�February

18, 1993)

The agency states that it has no record that petitioner either requested

or was denied overtime during the specified period. Moreover, at

petitioner's request, the agency interviewed one of his supervisors

during this time period, but he had no recollection of such requests

from petitioner.<3> Petitioner provided a table of dates and overtime

requested in support of his petition, but he did not provide any

documentation to demonstrate that he actually requested and was denied

overtime on any of the indicated dates. Accordingly, because there is no

evidence to support petitioner's claim for denied overtime in the amount

of 250 hours at issue, the agency declined to include this amount in the

award due petitioner under the Order. We concur with this determination,

and further clarify that our Order pertained only to the award of back

pay (including overtime) for the period commencing with petitioner's

discriminatory reassignment on February 23,1993. In fact, it appears that

petitioner is claiming the denied overtime award, at least in part, is

owed to him based on reprisal for having filed an earlier EEO complaint.

However, this claim was not adjudicated in either the prior appeal or

the request for reconsideration, and as such, an award based on a claim

of reprisal is not justified in this instance. Therefore, we find that

the agency has not failed to complied with the Order by denying payment

for this claim, and the petition in this part is denied.

2. Award for overtime (February 23, 1993 to May 22, 1993)

The agency acknowledges that petitioner is entitled to the amount of

overtime he would have worked but for the discrimination. The agency

notes that petitioner was one of a team of three painters with the

same supervisor, and that during the pertinent time period, they were

engaged in a project requiring overtime. The agency counters that

petitioner's claim for 434 hours is excessive, and was apparently based

on the number of overtime hours worked by the supervisor, who worked

substantially more overtime hours than his subordinates. Instead, the

agency argues that the proper calculation for overtime should be based on

the overtime worked by similarly situated workers, i.e., the two painters

on petitioner's former team. The agency then determined that the average

number of overtime hours worked by these two workers for the pertinent

period was 133 hours of overtime.<4> We concur with this determination.

The Commission notes that it is well settled that the amount of overtime

payable is calculated by taking the average amount of overtime worked

by similarly situated employees. See, e.g., Allen v. Department of the

Air Force, EEOC Petition No. 04940006 (May 31, 1996); Wrigley v. USPS,

EEOC Petition No. 04950005 (February 15, 1996); Zito v. Social Security

Administration, EEOC Petition No. 04970012 (October 9, 1997). Therefore,

we find that the agency in this action has complied with the Order and

the petition in this part is denied.<5>

3. Inclusion of (unspecified) amount of monetary award.

The agency indicates that petitioner is claiming $300-$400 in monetary

awards, although he does not specify an amount in the instant petition.

The agency further notes that it was unable to locate any documentation

to verify that an award was given to petitioner's former co-workers.

However, as a good faith gesture, the agency has agreed to pay petition

an award of $300.00. We note that petitioner has failed to provide any

supporting documentation or evidence in support of this claim. Therefore,

given the lack of evidence to demonstrate petitioner's entitlement to a

monetary award, and the agency's agreement to paid petitioner $300.00

to satisfy this claim, we find that the agency has complied with the

Order in this action and the petition in this part is denied.

Accordingly, we conclude that upon payment to the petitioner in accordance

with the above provisions, the agency shall be deemed to have satisfied

its obligations under the Commission's order in EEOC Request No. 05960093.

CONCLUSION

Based upon a review of the record herein, and the submissions of the

parties, and for the foregoing reasons, the Commission finds that the

agency has complied with the Order set forth in EEOC

Request No. 05960093.<6> Therefore, the Commission denies the

petitioner's petition for enforcement.

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:

3/23/00

Date Carlton M. Hadden, Acting Director

Office of Federal Operations

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 complainant, complainant's representative

(if applicable), and the agency on:

_______________ __________________________

Date Equal Employment Assistant

1On 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.

2In a supplemental petition, dated September 7, 1999, petitioner

acknowledges that he received a check from the agency in the amount of

$5,862.59 for 200 hours of overtime. He requests that his petition be

"continued" for the balance of the overtime hours he is claiming in his

original petition. However, based on the agency response memorandum,

it appears that this amount was issued to petitioner as straight time

"back pay," and not as compensation for overtime.

3Petitioner's other supervisor during this period was located in Germany

and did not respond to the agency inquiry regarding this matter.

4The agency further certified that it was preparing a check for petitioner

in the amount of approximately $4,500.00, representing the 133 hours of

overtime, plus interest.

5We note that the agency's memorandum discusses a claim for travel time.

However, petitioner does not reference this claim in his petition,

and we shall therefore not address it herein.

6Our review of the memorandum reveals that the agency has complied with,

or verifies that it will soon comply with, the entire remedy as set

forth in the Order, including training and notice posting.