Stella L. Shedd,<1> Petitioner,v.Daniel R. Glickman, Secretary, Department of Agriculture, Agency.

Equal Employment Opportunity CommissionDec 7, 2000
04990027 (E.E.O.C. Dec. 7, 2000)

04990027

12-07-2000

Stella L. Shedd, Petitioner, v. Daniel R. Glickman, Secretary, Department of Agriculture, Agency.


Stella L. Shedd v. Department of Agriculture

04990027

December 7, 2000

.

Stella L. Shedd,<1>

Petitioner,

v.

Daniel R. Glickman,

Secretary,

Department of Agriculture,

Agency.

Petition No. 04990027

Appeal No. 01970961

Agency No. 950811

DECISION ON PETITION FOR ENFORCEMENT

The Equal Employment Opportunity Commission (hereinafter, EEOC or

Commission) has docketed a petition for enforcement (PFE) from Stella

Shedd (hereinafter, petitioner) requesting enforcement of the Commission's

Order in Barnett v. Department of Agriculture, EEOC Appeal No. 01970961

(October 22, 1998). This petition is accepted by the Commission in

accordance with EEOC Regulation 29 C.F.R. � 1614.503(a).

The issue presented in this petition is whether the agency has fully

complied with the Order of the Commission set forth in EEOC Appeal

No. 01970961.

BACKGROUND

In EEOC Appeal No. 01970961 (October 22, 1998), the Commission found

that petitioner prevailed on her breach of settlement agreement claim,

reversed the agency's finding of no breach, and ordered the agency to

take the following remedial action:

Within fifteen (15) calendar days of the date this decision becomes

final, the agency shall calculate the difference in annual salary

between a GS-7, step 6 and a GS-9, step 4, for the period from July 9,

1992, to March 30, 1996.

Within thirty (30) calendar days of the date this decision becomes

final, the agency shall issue [petitioner] a check for the amount

calculated in paragraph (1) of this Order, less the $8,433.83 already

paid [petitioner], plus interest for this amount for the period between

when [petitioner] was issued the first check and her receipt of this

subsequent check.

In addition, the Commission ordered the agency to submit a compliance

report to the Commission within thirty (30) calendar days of the

completion of all ordered corrective action. The agency was also required

to include with its report all supporting documentation, which it was

also ordered to send to petitioner.

On February 9, 1999, the agency submitted its compliance report to the

Commission's Office of Federal Operations. In this report, the agency

indicated that it (1) recalculated the difference in salary between

a GS-7, step 6 and a GS-9, step 4 for the relevant period to total

$15,653.12; (2) determined that petitioner was entitled to $521.30 in

interest; and (3) issued a check to petitioner on February 4, 1999,

in the amount of $3,568.07. With regard to calculating the difference

in annual salary, the record shows that the agency determined the

difference in hourly pay between the GS-7, step 6 and the GS-9, step

4, and multiplied this number by the total number of hours worked by

petitioner from July 9, 1992, to March 30, 1996. As a result of this

formula, the agency determined that the total amount due to petitioner

was $15,653.12. Next, the agency subtracted, from the total amount due,

$12,767.83 (the amount previously paid to petitioner.) Thus, the agency

determined that the remaining amount due to petitioner was $2,885.29

plus $161.48 (tax refund) for a total of $3,046.77. Additionally, the

agency determined that petitioner was entitled to $521.30 in interest.<2>

The check issued to petitioner in purported compliance with the Order

in EEOC Appeal No. 01970961 was for $3,568.07 ($3,046.77 + $521.30).

In her PFE, petitioner claims that the agency erred in its calculations.

Specifically, petitioner states that the agency improperly relied on

hourly rate differences in determining the difference in annual salary

between the two grades. Petitioner claims that the agency should have

used annual differences in salary as stated in the Commission's decision

in Barnett v. Department of Agriculture, EEOC Appeal No. 01970961 (October

22, 1998). Petitioner apparently argues that the agency should have

divided the number of hours worked by complainant in a given year by

the standard number of hours worked per year and multiplied that result

by the annual difference in salary between a GS-9, step 4, and a GS-7,

step 6. According to petitioner's calculations, the total amount due to

her was $15,696.19. In addition, petitioner questions the accuracy of the

agency's interest calculations under the Prompt Pay Act. Petitioner also

argues that as a result of the agency's delay in paying her the correct

amount of money, she now has to pay taxes on the $521.30 in interest.

Petitioner claims that had the agency calculated the correct amount due

in 1996, and had that amount been placed in a tax deferred investment,

such as a Maryland bond fund, then she would not have had a tax obligation

in the year in which the money was actually received (1999). Finally,

petitioner asks for reimbursement for the time and money she spent in

obtaining the agency's compliance with the Commission's Order.

ANALYSIS AND FINDINGS

In its previous decision, the Commission held that the settlement

agreement provided for the calculation of the lump sum payment by

multiplying the annual difference in salaries for the two grades (at

the appropriate levels) by the time period identified in the agreement.

The record reveals that in support of its first calculation, the agency

determined the hourly difference in pay between the two grades and

multiplied this result by the number of hours worked by complaint during

the relevant period. The Commission rejected this method of calculation

in our prior decision. The record shows that in recalculating the

total amount due complainant following the Commission's Order, the

agency again determined the hourly difference in pay between the two

grades and multiplied this number by the total number of hours worked by

complainant during the relevant period. The Commission finds that the

agency improperly recalculated the difference in annual salary between

a GS-7, step 6 and a GS-9, step 4 for the period from July 9, 1992 to

March 30, 1996.

The Commission finds that in calculating the total amount due to

petitioner under our prior decision, the agency should have determined the

�annual� difference in salary between a GS-7, step 6, and a GS-9, step 4,

for the relevant period and multiplied this number by the percentage of

hours worked by petitioner that year (i.e., the number of actual hours

worked by petitioner divided by a 2080 hour work year).<3>

The calculations should have been made as follows:

Year Annual Salary Hours Worked Total Amount Due

Difference

1992 $3,921.00 1056/2080 $1,990.66

1993 $4,065.00 2080/2080 $4,065.00

1994 $4,237.00 2080/2080 $4,237.00

1995 $4,377.00 2080/2080 $4,377.00

1996 $4,486.00 480/2080 $1,035.23 _________

Sum = $15,704.89

The Commission's Order directed the agency to subtract $8,433.83 (the

money previously paid to petitioner) from the newly calculated total

amount due petitioner.<4> Thus, the remaining total due petitioner based

on the above calculations is $7,271.06 ($15,704.89 minus $8,433.83).

The record reveals that the agency issued petitioner a check on February

4, 1999, in the amount of $3,568.07 ($3,046.77 (additional money due)

plus $521.30 (interest)). Therefore, the agency owes complainant,

exclusive of interest (awarded in provision 2 of the prior Order),

$4,224.29 ($7,271.06 minus $3,046.77).

The following chart summarizes how the Commission calculated the amount

now due petitioner exclusive of interest:

Total Amount Due $15,704.89

minus

Amount paid by agency prior to issuance $8,433.83

of decision in EEOC Appeal No. 01970961

minus

Amount paid by agency after issuance of $3,046.77

decision in EEOC Appeal No. 01970961

______________

Amount (exclusive of interest) now due petitioner = $4,224.29

With regard to the $521.30 in interest paid by the agency on February

4, 1999, we find that the amount of interest must be recalculated.

The agency based its interest calculation on its finding that petitioner

was due an additional payment of $3,046.77 under the settlement agreement.

Because the Commission determines that the outstanding total amount

due petitioner is $4,224.29, we find that the agency's calculation of

interest on $3,046.77 was improper. Thus, the agency shall recalculate

the interest due petitioner and shall provide documentation illustrating

how it calculated the interest due.

Next, we address petitioner's argument that because of the agency's delay

in paying her the correct amount of money, she now has to pay taxes on

the $521.30 in interest she received. Specifically, petitioner claims

that had the agency calculated and paid her the correct amount in 1996

and had that amount been placed in a tax deferred investment, such as a

Maryland bond fund, then she would not have had a tax obligation in the

year in which the money was actually received (1999). To determine that

petitioner would have placed the money she received in 1996 in a tax

deferred investment would be too speculative. Thus, we find that the

relief requested by complainant is beyond the scope of the Commission's

underlying finding that the agency breached the settlement agreement.

Finally, we address petitioner's claim for costs resulting from her PFE.

The Commission has held that reasonable costs incurred by a prevailing

complainant herself in the course of litigating her own EEO claim are

compensable. Hafiz v. Department of Defense, EEOC Petition No. 04960021

(July 11, 1997); Howgate v. United States Postal Service, EEOC Petition

No. 04990031 (February 4, 2000) (Commission found PFE was a reasonably

foreseeable consequence of the agency's failure to comply fully with the

Commission's Order and awarded attorney's fees and costs for processing

PFE), petition for clarification denied, EEOC Petition No. 04A00016

(August 31, 2000). These costs may include such items as mileage,

postage, telephone calls, photocopying, and any other reasonable expenses

incurred in connection with the complaint. Hafiz, 04960021 (citing

Carver v. United States Postal Service, EEOC Petition No. 04950004 (June

19, 1996)). We note, however, that it is petitioner's burden to prove

not only that she incurred such costs but that they were reasonable

and to provide documentation to support her claim for costs. Id.

As the record contains no evidence to support petitioner's claim for

costs associated with her PFE, we order the agency to solicit necessary

information from petitioner to make a determination on the amount of costs

to which petitioner is entitled. See id. Thereafter, the agency shall

work with petitioner to reach an agreement on the amount of costs owed.

See id. If the parties are unable to reach an agreement, the agency shall

pay petitioner any undisputed amount and in its compliance report to the

Commission explain, in detail, referring to supporting documentation,

how it calculated costs due. See id.

CONCLUSION

The Commission GRANTS petitioner's Petition for Enforcement. The agency

shall comply with the Order set forth herein.

ORDER

Within 15 calendar days of the date this decision becomes final, the

agency shall:

Issue petitioner a check in the amount of $4,224.29, for the remaining

amount due petitioner.

Recalculate the interest due petitioner and provide documentation to

petitioner illustrating how it calculated all the interest due petitioner

including documentation showing how it calculated the $521.30 in interest

already paid petitioner.

Issue petitioner a check for the interest due on $4,224.29 (the amount

the agency failed to pay petitioner pursuant to our Order in EEOC Appeal

No. 01970961) for the period between the date petitioner was issued the

first check by the agency and the date she receives the new check issued

pursuant to provision (1) of this Order.

Solicit the necessary information from petitioner to make a determination

on costs due, if any, in accordance with the guidance in this decision.

If the agency wishes petitioner to verify her request for costs,

it shall instruct her to do so. Thereafter the agency shall strive

to reach a written agreement with petitioner regarding the amount of

costs due. If the agency is unable to reach an agreement, it shall pay

any undisputed costs to petitioner, and in its compliance report to the

Commission explain in detail how it calculated costs due, referring to

supporting documentation.

A copy of the agency's calculations, supporting documentation, and

evidence of the issuance of the appropriate checks to petitioner must

be sent to the Compliance Officer as referenced herein.

IMPLEMENTATION OF THE COMMISSION'S DECISION (K0900)

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 complainant. If the agency

does not comply with the Commission's order, the complainant may petition

the Commission for enforcement of the order. 29 C.F.R. � 1614.503(a).

The complainant 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). Alternatively, the complainant

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

complainant 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.

COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION

(R0900)

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 (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:

______________________________

Carlton M. Hadden, Director

Office of Federal Operations

December 7, 2000

__________________

Date

CERTIFICATE OF MAILING

For timeliness purposes, the Commission will presume that this decision

was received within five (5) calendar days after it was mailed. I certify

that this decision was mailed to complainant, complainant's representative

(if applicable), and the agency on:

__________________

Date

______________________________

1Complainant's former name at the time of the Commission's decision in

EEOC Appeal No. 01970961 was Stella L. Barnett.

2There are no calculations to show how the agency calculated the

interest.

3We note that in her calculations petitioner used 2,086 hours as the

standard number of hours worked in the year, however, the correct standard

number of hours worked in a year is 2080 (40 hours per week multiplied

by 52 weeks in a year).

4We note that in its recalculation, the agency incorrectly subtracted

$12,767.83 as money previously paid instead of $8,433.83 as stated in

the Commission's Order.