04990041
10-20-2000
Virginia A. McCann, Petitioner, v. F. Whitten Peters, Secretary, Department of the Air Force, Agency.
Virginia A. McCann v. Department of the Air Force
04990041
October 20, 2000
.
Virginia A. McCann,
Petitioner,
v.
F. Whitten Peters,
Secretary,
Department of the Air Force,
Agency.
Petition No. 04990041
Appeal No. 01971851, 01981491
Agency No. AL400990749
Hearing Nos. 100-94-7125X & 120-94-5328X
DECISION ON A PETITION FOR ENFORCEMENT
On July 9, 1999, the Equal Employment Opportunity Commission (EEOC
or Commission) docketed a petition for enforcement to examine the
enforcement of an order set forth in Virginia A. McCann v. Department
of the Air Force, EEOC Appeal No. 01971851, 01981491 (October 23, 1998).
This petition for enforcement is accepted by the Commission pursuant to
29 C.F.R. � 1614.503.<1>
ISSUE PRESENTED
Whether the agency complied with the order in EEOC Appeal Nos. 01971851
and 01981491 to provide the petitioner appropriate back pay.
BACKGROUND
The petitioner filed an employment discrimination complaint against
the agency. In a final decision the agency found that it discriminated
against the petitioner on the basis of reprisal when it removed her
from her term appointment effective April 17, 1992. The agency issued a
second final decision addressing a remedy issue. Arguing that she was
entitled to greater remedy, she appealed both final agency decisions.
The Commission ordered a larger remedy, including, in pertinent part,
a higher salary rate of back pay over a longer period, with interest
and benefits, including any step or incremental increases in pay.
The agency was ordered to provide the check within 60 calendar days of
the date the decision became final.
The agency initially issued a check to the petitioner in late May 1999
for $9,870.32. The petitioner argued that there were significant
calculation errors, the most considerable of which was an incorrect
assumption covering an approximately 1? year period that she was employed
with the government when this was not so.
In late November 1999 the agency, through the Defense Finance and
Accounting Service (DFAS) did recalculations, and determined the
petitioner was entitled to an additional $74,268.79 in back pay and
interest. The agency also awarded 234 hours of annual leave and 184 hours
of sick leave. In arriving at this back pay sum, DFAS deducted $10,274
the petitioner received in unemployment compensation in 1992 and 1993.
After the recalculation, the petitioner did not submit additional
comment.
On petition, the petitioner previously argued that the Commission should
impose sanctions against the agency, including additional compensatory
damages, for bad faith calculations and delay, and requests additional
attorney fees and costs.
In response, the agency argues that it did not act in bad faith.
It largely attributes delays and the calculation errors to DFAS,
a governmental component over which it states it does not control.
The agency also attributes delays and miscalculations to communication
problems between DFAS and the agency, and the complexity of the
calculations. The record shows that once the agency took a more proactive
role, the back pay calculation problems were solved.
ANALYSIS AND FINDINGS
The parties do not contend there are errors in the latest back pay with
interest calculations. But a significant error was made which requires
rectification.
The agency, based on calculations by DFAS, deducted from back pay $10,274
in unemployment compensation the complainant received in 1992 and 1993.
The Commission has held that unemployment compensation must not be
deducted from back pay. Scott v. United Postal Service, EEOC Appeal
No. 01921641 (June 11, 1993); Wallis v. United States Postal Service, EEOC
Appeal No. 01950510 (November 13, 1995). Accordingly, the agency must
pay the complainant an additional $10,274 in back pay, with interest.
The Commission declines to impose sanctions. While the agency should
have taken a more proactive role from the beginning, it did take part
in resolving issues. Further, the petitioner received her back pay
with interest.
The petitioner is a prevailing party and entitled to attorney fees and
costs for her efforts to secure enforcement of the Commission's decision
in EEOC Appeal Nos. 01971851, 01981491. This includes the instant
petition for enforcement. McNeil v. Unites States Postal Service, EEOC
Request No. 04990007 (December 9, 1999). This also includes other actions
by her attorney, e.g., telephone calls and correspondence to the agency
and DFAS, and filing a Freedom of Information Act request with DFAS.
The filing of the Freedom of Information Act request secured information
used to identify errors in calculations of back pay and resulted
in additional payment. When efforts outside the EEO administrative
process to secure compliance with a Commission back pay order were a
catalyst in getting compliance, attorney fees and costs are appropriate.
Bermudez v. United States Postal Service, EEOC Request No. 05920122
(November 30, 1992). Instructions on how to apply for attorney fees
and costs are set forth below.
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
agency is not in compliance with the Order set forth in EEOC Appeal
No. 01971851, 01981491. Therefore, the Commission, on its own motion,
grants the petitioner's petition for enforcement.
ORDER
The agency is ordered to pay the petitioner $10,274 in back pay, with
interest. The agency must take this action within 120 calendar days of
its receipt of this decision.
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 verifying
that the corrective action has been implemented. The agency must send
a copy of this report, including all enclosures, to the petitioner.
ATTORNEY'S FEES (H0900)
If complainant has been represented by an attorney (as defined by
29 C.F.R. � 1614.501(e)(1)(iii)), he/she 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 this
decision becoming final. 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 (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 (Q0900)
This decision affirms the agency's final decision/action in part, but it
also requires the agency to continue its administrative processing of a
portion of your complaint. 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 on both that portion
of your complaint which the Commission has affirmed and that portion
of the complaint which has been remanded for continued administrative
processing 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
October 20, 2000
__________________
Date
1On 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 29 C.F.R. Part 1614 in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.