04980020
10-01-1998
v. ) Request No. 05960234
Lee C. Curry v. Department of the Army
04980020
October 1, 1998
Lee C. Curry, )
Petitioner, )
) Petition No. 04980020
v. ) Request No. 05960234
) Appeal No. 01943760
Louis Caldera, )
Secretary, )
Department of the Army, )
Agency. )
)
DECISION ON PETITION FOR ENFORCEMENT
On March 11, 1998, Lee C. Curry (hereinafter referred to as petitioner)
filed a petition for enforcement of the Order set forth in Lee C. Curry
v. Togo D. West, Jr., Secretary, Department of the Army, EEOC Request
No. 05960234 (October 2, 1997). Pursuant to that Order, the Commission
directed the Department of the Army (hereinafter referred to as the
agency) to redress petitioner following a finding that agency officials
had discriminated against him on the basis of his disability (back and
knee problems) in violation of �501 of the Rehabilitation Act of 1973,
as amended, 29 U.S.C. �791 et seq. This petition for enforcement is
accepted by the Commission pursuant to 29 C.F.R. �1614.503.
ISSUE PRESENTED
The issue presented herein is whether the agency has complied with the
Order set forth in the previous decision.
BACKGROUND
The record in the case herein reveals that petitioner filed a formal EEO
complaint alleging that he had been discriminated against on the basis
of his disability (back and knee problems) when he was not selected
for the position of Electronics Mechanic, WG-2604-11, in May 1989.
Petitioner had been asked to undergo a physical examination conducted by
the Supervisory Occupational Health Nurse, which essentially consisted
of bending forward and to the sides, and demonstrating proper lifting
techniques. According to the Nurse, petitioner, whose medical history
showed back and knee problems, was unable to touch his toes. Following an
investigation of the matter, the agency issued a final decision, finding
that petitioner was not subjected to disability discrimination.
On appeal, the Commission found that petitioner had been subjected
to disability discrimination. Curry v. Department of the Army, EEOC
Appeal No. 01943760 (November 29, 1995). Specifically, the Commission
determined that the agency failed to demonstrate that petitioner's
conditions presented a reasonable probability of substantial harm based
upon the Nurse's examination. The Commission subsequently denied the
agency's request for reconsideration. Curry v. Department of the Army,
EEOC Request No. 05960234 (October 2, 1997). The agency was ordered
to retroactively promote petitioner to the position in question, or a
substantially equivalent position, and provide him with backpay, with
interest from November 21, 1991, and appropriate benefits. The agency
was also instructed to post notice of the finding of discrimination,
and process petitioner's claim for attorney's fees.
Petitioner subsequently filed a petition for enforcement, stating
that the agency had not fully implemented the relief provided for in
the Commission's Order. Petitioner asserted that his backpay award of
$93,142.24 was inadequate, and did not reflect the entire period from May
1989 until his acceptance of the position in November 1997. In addition,
petitioner stated that he did not receive retirement benefits, or sick
and annual leave. Petitioner also indicated that the agency had not
processed his claim for attorney's fees.
In its compliance report to the Commission concerning EEOC Request
No. 05960234 (Compliance Action No. 06980033), the agency indicated
that it had complied with the previous Order. The agency submitted
Notification of Personnel Action forms showing that petitioner was placed
into an Electronics Mechanic position effective May 1, 1989, and received
appropriate pay adjustments and step increases. In addition, the agency
submitted backpay and interest worksheets. The agency calculated that
petitioner was entitled to $249,367.63 in gross backpay for the period
from May 1989 through November 1997, as well as $92,158.61 in interest.
The agency subsequently determined that petitioner was entitled to an
additional $364.48 in interest. The agency stated that it verified
that the appropriate amounts, including $149,470.46 in net backpay, were
received by electronic funds transfer in January 1998. The agency also
calculated that appellant would have earned 892 hours of sick leave and
1402 hours of annual leave. Finally, the agency provided documentation
showing that it posted notice of the finding of discrimination from
October 22, 1997, through December 23, 1997. A final decision regarding
the matter of attorney's fees was issued March 9, 1998.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. �1614.503(a) provides that a complainant may
petition the Commission for enforcement of a decision issued under the
Commission's appellate jurisdiction. In the case herein, the Commission
sought to make petitioner whole by restoring him "to a 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). At issue is
whether the agency has fully complied with the Commission's prior Order.
Appellant asserted that the agency failed to provide him with the
appropriate amount of backpay. The agency's submissions, however, show
that appellant received over $149,000.00 in net backpay for the period
from May 1989 through November 1997. In addition, appellant received
payment for interest. It appears from appellant's statements that he
mistook the interest payment on his earning and leave statement for
the backpay award.<1> The agency represented that both the backpay and
interest payments were received by electronic funds transfer. Further,
while appellant stated that he did not receive annual and sick leave,
the earning and leave statement he submitted reflects a balance of
897.5 hours of sick leave, 198.5 hours of annual leave, and 1218 hours
of restored leave.
Nevertheless, petitioner also raised the matter of his retirement
benefits. While it appears from petitioner's submissions that the
agency deducted petitioner's own contributions from his backpay, it is
unclear whether the agency provided petitioner with applicable matching
contributions. The Commission has previously held that, to the extent a
complainant would have received government contributions to a retirement
fund as a component of his salary, he is entitled to have his retirement
benefits adjusted as part of his back pay award, including receiving
interest which the account would have earned during the relevant period.
See Korchnak v. USPS, EEOC Petition No. 04960028 (December 19, 1996);
Wrigley v. USPS, EEOC Petition No. 04950005 (February 15, 1996). Thus,
the Commission will remand the matter to the agency for a supplemental
investigation to determine whether it has properly credited petitioner's
TSP account.
CONCLUSION
Based upon a review of the record herein, and the submissions of the
parties, and for the foregoing reasons, the Commission finds that the
record contains insufficient information to determine whether the agency
has complied with the previous Order set forth in EEOC Appeal No. 05960234
(October 2, 1997). Therefore, the Commission orders the agency to
conduct a supplemental investigation in accordance with the Order below.
ORDER
The agency is ORDERED to conduct a supplemental investigation, which
shall include the following actions:
The agency shall conduct a supplemental investigation with regard to the
precise manner in which it has compensated petitioner for his retirement
benefit loss engendered by the discrimination. Specifically, the agency
shall determine whether it provided petitioner with applicable matching
contributions. If the agency has not made the appropriate deductions
and contributions to petitioner's retirement fund and TSP, as directed
in this decision, then it shall do so.
The supplemental investigation shall be completed within thirty
(30) calendar days of the date this decision becomes final. If the
agency determines that appropriate contributions have not been made to
petitioner's TSP, the agency shall make such contributions within thirty
(30) calendar days of the completion of the supplemental investigation.
The agency is further directed to submit a report of compliance, as
provided in the statement entitled "Implementation of the Commission's
Decision." The report shall include supporting documentation of the
agency's calculation of retirement benefits due petitioner, including
evidence that the corrective action has been implemented.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0595)
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 appellant. If the agency does not comply with the Commission's
order, the appellant may petition the Commission for enforcement of
the order. 29 C.F.R. �1614.503 (a). The appellant 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. �� 1614.408, 1614.409, and 1614.503 (g). Alternatively,
the appellant 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. �� 1614.408 and 1614.409. 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
appellant files a civil action, the administrative processing of the
complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. �1614.410.
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 1, 1998
Date Frances M. Hart
Executive Officer
Executive Secretariat
1The Commission notes that appellant's January 29, 1998 earning and leave
statement includes both the interest payment and appellant's regular
salary payment for the preceding two weeks.