Tracy Usry, Petitioner,v.Donna E. Shalala, Secretary, Department of Health and Human Services, Agency.

Equal Employment Opportunity CommissionAug 23, 2000
04a00004 (E.E.O.C. Aug. 23, 2000)

04a00004

08-23-2000

Tracy Usry, Petitioner, v. Donna E. Shalala, Secretary, Department of Health and Human Services, Agency.


Tracy Usry v. Department of Health and Human Services

04A00004

August 23, 2000

.

Tracy Usry,

Petitioner,

v.

Donna E. Shalala,

Secretary,

Department of Health and Human Services,

Agency.

Petition No. 04A00004

Agency No. FDA08295

DECISION

On November 18, 1999, Tracy Usry (petitioner) filed a Petition for

Enforcement of the Order set forth in Usry v. Department of Health and

Human Services, EEOC Appeal No. 01982615 (May 4, 1999). In the Order,

the Commission directed the agency to redress petitioner following

a finding that agency officials discriminated against him based on a

perceived disability in violation of Section 501 of the Rehabilitation

Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.<1>

This petition for enforcement is accepted pursuant to the provisions of

29 C.F.R. � 1614.503.

ISSUE PRESENTED

The issue presented is whether the agency has complied with the

Commission's order to provide petitioner with back pay and benefits,

with interest.

BACKGROUND

The decision in EEOC Appeal No. 01982615 found that petitioner was

discriminated against on the basis of a perceived disability when

the agency rescinded its employment offer for a Criminal Investigator

position.

The above decision ordered the agency, in relevant part, to provide

petitioner back pay, interest, and all other benefits he would have

received absent discrimination from the first date that other successful

candidates hired under the same vacancy announcement entered on duty to

the date petitioner was placed in the position or declined the agency's

offer to place him in the position. The decision noted that the back

pay, benefits and interest calculation should be computed in the manner

prescribed by 5 C.F.R. � 550.805.

Thereafter, in a letter dated June 28, 1999, petitioner advised the

agency that he did not wish to be placed in the position in question.

The agency determined that the back pay period was from October 16,

1994 to June 29, 1999. The parties do not contest the length of the

back pay period.

The agency found that petitioner's retroactive gross back pay totaled

$124,488.13, including annual leave, and that the interest due on this

amount was $25,427.73. The agency then made the required deductions

and issued a check to petitioner in the amount of $107,266.62.

In his petition for enforcement, petitioner argues that the agency

calculated the interest incorrectly and that the agency owes him

$203,078.05 in unpaid interest. In his petition, petitioner refers to

a January 11, 2000 letter written to the agency as detailing the correct

interest calculation. In that letter petitioner argued that the agency's

interest calculation was based on simple interest and that if the agency

followed the statutorily mandated interest calculation, compounding

interest daily, it would have arrived at the figure of $298,970.20.

He then argued that annual leave in the amount of $28,596.04 should

be added to this amount for a total of $327,566.24. As the agency had

already paid him $124,488.19, he requested that the additional $203,078.05

be forwarded.

In response to the petition for enforcement, the agency argues that it

calculated the interest due in accordance with the provisions of Sections

550.806(a)-(h) of the Code of Federal Regulations, using software provided

by the Office of Personnel Management for that purpose, as ordered by

this Commission. The agency requests that the Commission find it to

be in substantial compliance with the order.

FINDINGS AND ANALYSIS

After a careful review of the record, we find that the agency appears

to have based its interest calculation on 5 C.F.R. �� 550.806(a)-(h),

as ordered. Moreover, petitioner's explanation of how he arrived at

the figure of $203,078.05 is conclusory and does little to establish

that the agency did not fully implement the Commission's order.

Notwithstanding the above, we are troubled by the agency's failure

to provide a clear written explanation as to how it arrived at the

interest amount. The list of numbers, interest rates and dates provided

by the agency, apparently in lieu of a written explanation, is difficult

to interpret. For example, while the list appears to note the amount

owed petitioner for each pay period, beginning on November 8, 1994<2>,

along with the daily interest rate, there is nothing to indicate that the

interest calculated was added to the amount owed. Rather, pay period

dates are listed with a dollar amount and a notation of what the daily

interest rate was, followed by the next pay period and the same dollar

amount, changing occasionally, as follows:

DATE $ AMOUNT DUE # OF DAYS DAILY INTEREST

OR OWED RATE

11 8 1994 $816.60 14 .000219178

11 22 1994 $816.60 14 .000219178

....

1 31 1995 $842.81 14 .000219178

Although it may be the case that the agency's calculation is correct,

we are unable to make that determination based on the information

provided. Accordingly, the agency shall comply with the order below.

CONCLUSION

Based on a review of the record, and for the foregoing reasons, the

Commission grants the Petition for Enforcement of the order in Usry

v. Department of Health and Human Services, EEOC Appeal No. 01982615

(May 4, 1999). The agency shall comply with the prior order by taking

the actions set forth in the order below.

ORDER

1. The agency shall submit a report of compliance to the Commission,

with a copy to petitioner, that breaks down how it arrived at its interest

figure. Specifically, the calculations shall, for the entire back pay

period, be broken down on a biweekly or monthly basis to correspond with

the payments petitioner would have received had he been in the position

in question. The calculations shall explicitly identify the interest

due petitioner during each period (as interest begins to accrue on the

dates on which petitioner would have received the pay, allowances, and

differentials had he received the position in question, according to 5

C.F.R. � 550.806(a)). These figures shall then be subtotaled on a yearly

basis, and totaled for the entire back pay period. Any codes used in

the calculations shall be explained and identified so that a reasonably

knowledgeable third party could readily decipher the calculations.

2. If the agency concludes that it miscalculated the interest due,

it shall pay any additional sums owed to petitioner.

3. If the agency pays petitioner additional sums, it shall notify his

attorney of the procedures for filing a petition for attorney's fees

and costs with the agency.

4. The agency shall complete the above actions within sixty (60)

calendar days from the date this decision becomes final. It must submit

a report of compliance to the Compliance Officer, copied to petitioner,

which shall include all the above calculations and photocopies of any

additional payments made to petitioner.

IMPLEMENTATION OF THE COMMISSION'S DECISION (K1199)

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 64

Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter

referred to as 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 64 Fed. Reg. 37,644, 37,659 (1999)

(to be codified and hereinafter referred to as 29 C.F.R. � 1614.409).

COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION

(R0400)

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

August 23, 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

______________________________

1 On 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.

2 It is not clear why the calculations began on November 8, 1994, as

opposed to October 16, 1994.