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.