04970023
10-29-1998
Petitioner, ) Petition No. 04970023
John Mack v. United States Postal Service
04970023
October 29, 1998
John Mack, )
Petitioner, ) Petition No. 04970023
) Appeal No. 01950265
v. ) Agency No. 1-C-2149-93
)
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
________________________________)
DECISION ON PETITION FOR ENFORCEMENT
INTRODUCTION
Petitioner filed a petition for enforcement of the Order set forth in
John Mack v. United States Postal Service, EEOC Appeal No. 01950265
(August 29, 1996). The petition for enforcement is accepted by the
Commission pursuant to 29 C.F.R. �1614.503.
ISSUE PRESENTED
Whether the agency fully complied with the Commission's Order for relief
in EEOC Appeal No. 01950265.
BACKGROUND
In EEOC Appeal No. 01950265, the Commission found that the agency
discriminated against petitioner based on his disability when it did
not select him for transfer to the position of custodian at the Atlanta
Post Office. In its Order for relief, the Commission directed the agency
to accomplish the following:
(1) The agency shall offer petitioner the position of Custodian or a
comparable position in the Atlanta Post Office.
(2) The agency shall conduct EEO training for the responsible official
and other managers at the Atlanta Post Office, addressing their
responsibilities with respect to eliminating discrimination in the Federal
workplace. The training shall place special emphasis on prevention and
elimination of discrimination against persons with disabilities.
(3) The agency shall award petitioner backpay, and other benefits,
representing the amount which he would have earned had he been transferred
to the Custodian position in Atlanta in March 1993, minus any earnings he
received during that time. If there is a dispute regarding the exact
amount of backpay and/or benefits to which petitioner is entitled,
the agency shall issue a check to petitioner for the undisputed amount.
(4) post the appropriate notice at the facility at which the act of
discrimination took place; and
(5) award petitioner attorney's fees in accordance with 29
C.F.R. �1614.501(e).
In its compliance report to the Commission, the agency certified that it
offered petitioner a Modified PTF Distribution Clerk position on January
27, 1997, which petitioner accepted on March 31, 1997; that it scheduled
EEO training for the Personnel Section of Human Resources for June 27,
1997; that no backpay or benefits were due petitioner; that it posted the
required notice on December 30, 1996; and that no award of attorney fees
was due petitioner because he had not been represented by an attorney.
In support of its determination that petitioner was not due backpay or
other benefits, the agency stated that petitioner, who worked in a clerk
position (level 5, step 0) from March 1993 until April 1997 earned more
pay than he would have earned had he been transferred to the custodian
position (level 3, step 0) in March 1993. With respect to overtime pay,
the agency stated that petitioner worked 113.73 hours overtime during
the relevant time period. The comparative employee, who the agency
placed in the custodian position in April 1993, worked 180.7 hours of
overtime during that time period. The agency stated that petitioner is
not entitled to backpay for overtime because had the agency transferred
petitioner into the position, he would have shared overtime hours with
the comparative custodian. Alternatively, the agency stated that since
petitioner was paid at a higher rate for the overtime hours he actually
worked in the clerk position, he was not due any backpay for the overtime
hours he would have worked in the custodian position at a lower pay rate.
ANALYSIS AND FINDINGS
The Commission's Order in EEOC Appeal No. 01950265 directed the agency
to make petitioner "whole" by offering him placement in the position
where he would have been were it not for the unlawful discrimination.
Franks v. Bowman Transportation Co. 424 U.S. 747, 764 (1976). See also,
Albemarle Paper Co. v. Moody, 422 U.S. 405, 418 (1975). In applying
this principle to the question of backpay, the individual is entitled to
a sum of money equal to what was lost through discrimination less what
was actually earned from other employment during that period. The gross
backpay determination "must reflect fluctuations in working time, overtime
rates, penalty overtime, Sunday premium and night work, changing rates of
pay, transfers, promotions, and privileges of employment to which [the]
petitioner would have been entitled but for the discrimination." Allen
v. Department of the Air Force, EEOC Petition No. 04940006 (May 31,
1996).
In his request for enforcement, petitioner maintains that the agency
did not comply with the backpay portion of the Commission's Order.
Based on our review of the record, including the compliance report
and the parties' statements, the Commission is not satisfied that the
agency has complied with the backpay portion of the Commission's Order.
Specifically, the agency did not include in its compliance report
documentation of petitioner's actual salary, including overtime pay,
for the relevant time period. It did not include documentation of the
comparative's actual salary, including overtime pay, for the relevant
time period. Moreover, the agency provided no documentation to support
its determination that petitioner would have worked fewer overtime hours
or would have shared overtime hours had he been placed in the custodian
position in March 1993. Finally, the agency did not provide documentation
reflecting the salary range for the custodian position or document the
salary petitioner would have received had he been transferred to the
custodian position in March 1993. In the absence of this documentation,
the Commission can not verify whether the agency has fully complied the
backpay portion of its Order.
On remand, the agency shall provide the compliance officer with
documentation to demonstrate compliance with the Commission's backpay
order. The information should include documentation of petitioner's
salary rate and actual earnings during the relevant time period and
shall include documentation of the comparative's salary rate and actual
earnings during the relevant time period. The information shall also
include documentation of the salary range for the custodian position.
CONCLUSION
Based upon a thorough review of the record, and the submission of
the parties, and for the foregoing reasons, the Commission grants the
petition for enforcement. The Commission orders the agency to comply
with the prior Order in EEOC Appeal No. 01950265 (August 29, 1996) as
set forth in detail in the Order below. There is no further right of
administrative appeal from this decision.
ORDER
The agency is ORDERED to comply with the Commission's prior order in
EEOC Appeal No. 01950265 (August 29, 1996), Specifically no later than
forty-five (45) calendar days after the agency's receipt of this Order,
the agency shall:
(1) provide the petitioner and the EEOC's compliance officer detailed
information regarding its calculation of backpay and benefits.
The supporting documentation shall include the following information:
a) the salary rate and actual earnings the petitioner received during
the relevant time period, including overtime pay; b) the salary rate
and actual earnings the comparative received during the relevant time
period, including overtime pay; and c) the salary range for the custodian
position; and
(2) recalculate petitioner's backpay award if necessary.
STATEMENT OF PETITIONER'S RIGHTS ON PETITION FOR ENFORCEMENT
RIGHT TO FILE A CIVIL ACTION (P0993)
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.
It is the position of the Commission that 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.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive this decision. To ensure that your civil action
is considered timely, you are advised to file it WITHIN THIRTY (30)
CALENDAR DAYS from the date that you receive this decision or to consult
an attorney concerning the applicable time period in the jurisdiction
in which your action would be filed. 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 (Z1092)
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:
Oct. 29, 1998
DATE Frances M. Hart
Executive Officer
Executive Secretariat