[Redacted], Salvatore K., 1 Petitioner,v.Louis DeJoy, Postmaster General, United States Postal Service (Field Areas and Regions), Agency.

Equal Employment Opportunity Commission

Oct 26, 2022

Appeal Nos. 2019004918, 0720100024 (E.E.O.C. Oct. 26, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Salvatore K.,1 Petitioner, v. Louis DeJoy, Postmaster General, United States Postal Service (Field Areas and Regions), Agency. Petition No. 2021003812 Appeal Nos. 2019004918 & 0720100024 Hearing No. 570-2007-00375X Agency No. 4K-200-0229-06 DECISION ON A PETITION FOR ENFORCEMENT On June 21, 2021, the Equal Employment Opportunity Commission (EEOC or Commission) docketed a petition for enforcement to examine the enforcement of an Order set forth in EEOC Appeal No. 2019004918 (February 21, 2020). Docketing of this petition for enforcement is appropriate pursuant to 29 C.F.R. § 1614.503. BACKGROUND At the time of events giving rise to this matter, Petitioner worked as a Vehicle Operator, Maintenance Assistance, PS-6, at the Agency’s Largo 2 Vehicle Maintenance Facility (VMF) located in Capitol Heights, Maryland. On September 30, 2006, Petitioner filed an equal employment opportunity (EEO) complaint alleging that the Agency discriminated against him on the basis of his race (African American) and in retaliation for prior protected EEO activity when white co-workers received training and higher-level details and he was not afforded the same opportunities. 1 This case has been randomly assigned a pseudonym which will replace Petitioner’s name when the decision is published to non-parties and the Commission’s website. 2021003812 2 In an October 7, 2008 decision, an EEOC Administrative Judge (AJ) found discrimination and awarded Petitioner, among other relief, back pay, non-pecuniary compensatory damages, and the next available facility Acting Supervisor (204B) detail assignment. Subsequently, the Agency issued a final order rejecting the AJ’s decision and appealed that decision to this Commission. In EEOC Appeal No. 0720100024 (May 15, 2012), we reversed the Agency’s final order and affirmed the AJ’s finding of discrimination. We ordered the Agency to, among other relief, give Petitioner “the next available” 204B assignment at the facility as well as future 204B assignments in rotation with his coworkers, and back pay. The matter was assigned to a Compliance Officer for monitoring. Petitioner subsequently filed a petition for enforcement in which he disputed, among other matters, the 204B detail offered by the Agency and the back pay and interest calculations. The Commission docketed the petition for enforcement as Petition No. 0420140009. Specifically, with regard to back pay calculations, Petitioner argued that the back pay was incorrectly calculated as the difference between the 204B pay (EAS-l7) provided to two named mechanics and P9 level pay, which the Agency apparently presumed was Petitioner’s pay level. However, Petitioner argued that during the relevant period he was at the P7 level of pay, so the calculation should have been the difference between 204B pay and P7 pay, which would have been a greater amount. Petitioner further argued that the Agency offered him one 204B assignment, which was on the night shift, and he had to decline it because he works the day shift due to family responsibilities. In pertinent part, the order in Petition No. 0420140009 (January 9, 2017) provided the following: The Agency shall issue a final decision, appended with supporting documentation . . . explicitly detailing its compliance with the order in EEOC Appeal No. 0720100024 with regard to: (a) a detailed accounting of how Petitioner's back pay award was calculated, along with any necessary corrections, if appropriate; (b) whether the Petitioner has been provided 204B assignments in rotation with his VMF coworkers. In compliance with the order, the Agency issued a final decision and, on June 11, 2019, Petitioner filed an appeal. In Appeal No. 2019004918 (February 21, 2020), the Commission modified the final decision and remanded the matter for remedial relief. Specifically, in pertinent part, the Order in Appeal No. 2019004918 provided: Within sixty (60) calendar days from the date this decision is issued, the Agency is ordered to undertake the following actions: (1) The Agency shall issue another final decision, appended with supporting documentation, explicitly detailing its compliance with the order in EEOC Appeal No. 0720100024 and this decision with regard to a detailed 2021003812 3 accounting of how Petitioner’s back pay was calculated. Such calculations must include detailed information showing the times and dates each comparator worked 204B assignments during the relevant period. These figures must be broken down so that they show each individual assignment for each individual coworker who worked 204B assignments during the period. The Agency must then show the sum of all such 204B hours worked by Petitioner’s coworkers, multiplied by the difference in 204B pay and Petitioner’s pay, to show how it arrived at the $1353.00 gross pack pay amount. (2) The Agency shall also provide evidence, such as affidavits from management officials at Petitioner’s Capitol Heights facility, showing that Petitioner has been placed on a regular rotation of 204B assignments available to coworkers at that facility. If the Agency is unable to provide such assignments, the Agency shall provide an affidavit from a management official explaining why. The Agency is further directed to submit a report of compliance, as provided in the statement “Implementation of the Commission’s Decision.” The report shall include supporting documentation verifying that the corrective action has been implemented. The matter was assigned to a Compliance Officer for monitoring and docketed as EEOC Compliance No. 2020002563. As of June 2, 2021, the Compliance Officer noted that the Commission had no record of the Agency’s implementation of our Order and recommended the docketing of a petition for enforcement. On June 21, 2021, the Commission docketed the instant petition for enforcement and suspended compliance pending a decision. Petitioner submitted a brief, stating he “isn’t raising any new points of contention in his supporting documentation but merely wishes to highlight the outstanding grievances that he has suffered and that of which [have] already been acknowledged in these proceedings.” Petitioner stated that he seeks compliance with the AJ’s order, as to training and promotional opportunities. He stated that he incurred further damage following his 2017 removal. ANALYSIS AND FINDINGS The matters that remain at issue here are the appropriate calculation of back pay and placement of Petitioner in regular rotation for 204B assignments with his coworkers. The purpose of a backpay award is to restore to Petitioner the income he would have otherwise earned but for the discrimination. See Albemarle Paper Co. v. Moody, 422 U.S. 405 (1975). Back pay should include all forms of compensation and must reflect fluctuations in working time, overtime rates, penalty overtime, Sunday premium and night work, changing rate of pay, transfers, promotions, and privileges of employment to which Petitioner would have been entitled but for the 2021003812 4 discrimination. Potter v. Dep’t of Agriculture, EEOC Appeal No. 0720120029 (September 10, 2013), req. for recon. den. EEOC Request No. 0520140083 (May 9, 2014); see also Ulloa v. U.S. Postal Service, EEOC Petition No. 04A30025 (August 3, 2004)(citing Allen v. Dep’t of the Air Force, EEOC Petition No. 04940006 (May 31, 1996)); Perez v. U.S. Postal Service, EEOC Petition No. 04A40041 (March 3, 2005). The Commission realizes that precise measurement cannot always be used to remedy the wrong inflicted and that the computation of back pay awards inherently involves some speculation. Hanns v. U.S. Postal Service, EEOC Petition No. 04960030 (September 18, 1997). Nonetheless, uncertainties involved in a backpay determination should be resolved against the Agency since it has already been found to have committed the acts of discrimination. Id.; see also Kloock v. U.S. Postal Service, EEOC Petition No. 04A40012 (June 16, 2004). In Appeal No. 0720100024, the Commission awarded Petitioner remedial relief including “next available” and future 204B assignments and backpay. Subsequently, in Petition No. 0420140009, we ordered the Agency to provide detailed back pay calculations and proof that Petitioner was in the 204B assignment rotation with his coworkers. Most recently, in EEOC Appeal No. 2019004918, in pertinent part, we essentially repeated theses orders to be completed within sixty days. We issued Appeal No. 2019004918 on February 21, 2020. Based on the record we have before us, the Agency has yet to comply with our Order(s). The Commission has the inherent power to control and prevent abuse of its orders, processes and procedures. The Commission can and will impose sanctions for Agency malfeasance. Hashimoto v. Dep’t of Housing & Urban Development, EEOC Petition No. 0420110011 (June 12, 2012)(citing Turner v. Dep’t of the Interior, EEOC Petition No. 04980037 (August 5, 1999) and Byrd v. Dep’t of Agriculture, EEOC Petition No. 04980004 (Dec. 12, 1997)). To that end, should the Agency fail to comply with the actions mandated by the Order set forth below, the Commission may issue a “Show Cause” notice to the Agency to appear in person before the Commission to explain the Agency’s continued failure to comply. 29 C.F.R. § 1614.503(e). We restate the aforementioned Order from Appeal No. 2019004918 below, with the expectation of full and timely compliance. ORDER Within sixty (60) calendar days from the date this decision is issued, the Agency is ordered to undertake the following actions: (1) The Agency shall issue another final decision, appended with supporting documentation, explicitly detailing its compliance with the order in EEOC Appeal No. 0720100024 and this decision with regard to a detailed accounting of how Petitioner’s back pay was calculated. Such calculations must include detailed information showing the times and dates each comparator worked 204B assignments during the relevant period. 2021003812 5 (2) These figures must be broken down so that they show each individual assignment for each individual coworker who worked 204B assignments during the period. The Agency must then show the sum of all such 204B hours worked by Petitioner’s coworkers, multiplied by the difference in 204B pay and Petitioner’s pay, to show how it arrived at the $1353.00 gross pack pay amount. (3) The Agency shall also provide evidence, such as affidavits from management officials at Petitioner’s Capitol Heights facility, showing that Petitioner has been placed on a regular rotation of 204B assignments available to coworkers at that facility. If the Agency is unable to provide such assignments, the Agency shall provide an affidavit from a management official explaining why. The Agency is further directed to submit a report of compliance, as provided in the statement “Implementation of the Commission’s Decision.” The report shall include supporting documentation verifying that the corrective action has been implemented. ATTORNEY'S FEES (H1019) If Petitioner has been represented by an attorney (as defined by 29 C.F.R. § 1614.501(e)(1)(iii)), she/he is entitled to an award of reasonable attorney's fees incurred in the processing of the complaint. 29 C.F.R. § 1614.501(e). The award of attorney's fees shall be paid by the Agency. The attorney shall submit a verified statement of fees to the Agency -- not to the Equal Employment Opportunity Commission, Office of Federal Operations -- within thirty (30) calendar days of receipt of this decision. The Agency shall then process the claim for attorney's fees in accordance with 29 C.F.R. § 1614.501. IMPLEMENTATION OF THE COMMISSION’S DECISION (K0719) Under 29 C.F.R. § 1614.405(c) and § 1614.502, compliance with the Commission’s corrective action is mandatory. Within seven (7) calendar days of the completion of each ordered corrective action, the Agency shall submit via the Federal Sector EEO Portal (FedSEP) supporting documents in the digital format required by the Commission, referencing the compliance docket number under which compliance was being monitored. Once all compliance is complete, the Agency shall submit via FedSEP a final compliance report in the digital format required by the Commission. See 29 C.F.R. § 1614.403(g). The Agency’s final report must contain supporting documentation when previously not uploaded, and the Agency must send a copy of all submissions to the Petitioner and his/her representative. 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 29 C.F.R. §§ 1614.407, 1614.408, and 29 C.F.R. § 1614.503(g). 2021003812 6 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) (1994 & Supp. IV 1999). If the Petitioner 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. Failure by an agency to either file a compliance report or implement any of the orders set forth in this decision, without good cause shown, may result in the referral of this matter to the Office of Special Counsel pursuant to 29 C.F.R. § 1614.503(f) for enforcement by that agency. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0920) The Commission may, in its discretion, reconsider this appellate decision if Petitioner or the Agency submits a written request that contains arguments or evidence that tend to establish that: 1. The appellate decision involved a clearly erroneous interpretation of material fact or law; or 2. The appellate decision will have a substantial impact on the policies, practices, or operations of the agency. Requests for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration. A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within which to submit a brief or statement in opposition. See 29 C.F.R. § 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9 § VII.B (Aug. 5, 2015). Petitioner should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx Alternatively, Petitioner can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, a Petitioner’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). 2021003812 7 See 29 C.F.R. § 1614.403(g). Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless Petitioner files his or her request via the EEOC Public Portal, in which case no proof of service is required. Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together with the request for reconsideration. The Commission will consider requests for reconsideration filed after the deadline only in very limited circumstances. See 29 C.F.R. § 1614.604(c). PETITIONER’S RIGHT TO FILE A CIVIL ACTION (R0610) 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 (Z0815) If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. 2021003812 8 Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Petitioner’s Right to File a Civil Action for the specific time limits). FOR THE COMMISSION: Carlton M. Hadden’s signature Carlton M. Hadden, Director Office of Federal Operations October 26, 2022 Date