U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Damon Q.,1 Petitioner, v. Megan J. Brennan, Postmaster General, United States Postal Service (Southeast Area), Agency. Petition No. 0420130028 Request No. 0520110550 Appeal No. 0120082510 Hearing No. 420-2007-00164X Agency No. 4H-350-0008-07 DECISION ON A PETITION FOR ENFORCEMENT On September 24, 2013, the Equal Employment Opportunity Commission (EEOC or Commission) docketed a petition for enforcement to examine the enforcement of an Order set forth in EEOC Appeal No. 0120082510 (December 22, 2010), request for reconsideration denied, EEOC Request No. 0520110550 (September 6, 2012). Petitioner alleges that the Agency has not complied with the Commission's order with respect to back pay. The Commission accepts the petition for enforcement pursuant to 29 C.F.R. § 1614.503. For the following reasons, the Commission GRANTS the petition for enforcement. ISSUES PRESENTED Whether, in computing the amount of back pay due Petitioner, the Agency properly: (1) determined that he had $43,800 in outside earnings from October 24, 2006 to March 24, 2008; and (2) excluded the March 25, 2008 to October 8, 2012 time period. BACKGROUND The Commission found that the Agency discriminated against Petitioner on the bases of race (African-American) and sex (male), in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq., when it terminated his employment as a Part Time Flexible City Carrier on October 24, 2006. Among other things, the Commission ordered the Agency to pay Petitioner back pay. In December 2012, Petitioner submitted documentation to the Agency related to his efforts to secure outside employment after his termination. The documentation included, in pertinent part, the following: * A March 24, 2008 OF 612 (Optional Application for Federal Employment) from Petitioner for a housekeeping aid supervisor position at the Department of Veterans Affairs (VA) indicating that he was currently working at a janitorial services company for 40 hours per week at $15 per hour; * A May 12, 2008 letter from a medical company informing Petitioner that he was not selected for a billing specialist position; * A June 3, 2008 printout of a USAJOBS job announcement for a medical support assistant position at the VA; and * A June 2, 2009 letter from VA Vocational Rehabilitation and Employment (VR&E) referencing Petitioner's appointment for an evaluation on June 17, 2009; * A June 23, 2009 email from a VA VR&E contractor referencing Petitioner's appointment for a vocational assessment on June 24, 2009; * A July 7, 2009 letter from VA VR&E referencing Petitioner's appointment for an evaluation on July 20, 2009; * A VA Form 3542 (Authorization to Report - Voucher for Mileage Allowance) indicating that Petitioner reported to VA VR&E for training on July 20, 2009; and * An undated written statement from Petitioner indicating that, on numerous occasions from 2010 to 2012, he sought employment at a janitorial services company, a barber shop, and an auto repair shop, but was informed that no positions were available. On January 10, 2013, the Agency issued Petitioner a check for $15,013.18 in net back pay. The Agency indicated on the check that the amount included 2,956.76 base hours and 369.43 overtime hours for October 24, 2006 to October 8, 2012. Petitioner's back pay report, dated January 11, 2013, reflects that the Agency offset $43,800 from his gross back pay based on his outside earnings. Petitioner's PS Form 50, processed on January 30, 2013, reflects that the Agency excluded the March 25, 2008 to October 8, 2012 time period from its back pay computation. On February 15, 2013, the Agency issued Petitioner a $6,546.33 check for the interest on the back pay. Subsequently, Petitioner submitted the instant petition for enforcement. CONTENTIONS IN PETITION In his petition, Petitioner contends that the Agency has not complied with the Commission's order with respect to back pay. Specifically, Petitioner argues that the Agency improperly determined that he had $43,800 in outside earnings. In addition, Petitioner argues that the Agency improperly excluded the March 25, 2008 to October 8, 2012 time period. In opposition, the Agency requests that we deny the petition. Citing 29 C.F.R. § 1614.504, the Agency argues that Petitioner untimely filed his petition. Regarding the $43,800 in outside earnings, the Agency argues that Petitioner submitted documentation showing that he earned $600 per week (40 hours at $15 per hour) at the janitorial services company until March 24, 2008. Regarding the exclusion of back pay from March 25, 2008 to October 8, 2012, the Agency argues that Petitioner did not make sufficient efforts to mitigate damages or was unable to work because of his disability. Specifically, the Agency asserts that evidence of Petitioner's inability to work included statements from his medical providers, his receipt of Social Security disability benefits, and his 90 percent VA disability rating. Moreover, citing EEOC Appeal No. 0120130887 (May 31, 2013) (awarding Petitioner $175,000 in non-pecuniary compensatory damages while noting that he "had trouble maintaining gainful employment"), the Agency asserts that Petitioner was compensated for the full amount of time he was unable to work. ANALYSIS AND FINDINGS As an initial matter, we decline to find that Petitioner untimely filed his petition. We emphasize that 29 C.F.R. § 1614.503, which pertains to the enforcement of final Commission decisions, does not provide a time period for a petitioner to file a petition. We note that 29 C.F.R. § 1614.504, which pertains to compliance with settlement agreements and final agency actions, is not applicable here. Regarding the outside earnings, we find that the Agency properly determined that Petitioner had $43,800 in outside earnings from October 24, 2006 to March 24, 2008. In computing the net amount of back pay payable, an agency is required to offset any outside earnings received by an employee for other employment undertaken to replace the employment from which the employee was separated. See 5 C.F.R. § 550.805(e)(1). Here, Petitioner indicated in his March 24, 2008 OF 612 (Optional Application for Federal Employment) that he was working at a janitorial services company for 40 hours per week at $15 per hour - thereby earning $600 per week. In addition, we note that approximately 73 weeks passed between Petitioner's October 24, 2006 termination and March 24, 2008. Finally, we note that Petitioner did not provide any alternative numbers in his petition to refute the Agency's calculation of his outside earnings. Regarding the March 25, 2008 to October 12, 2012 time period, we find that the Agency improperly excluded it from the computation of back pay. First, we find that the Agency did not show that Petitioner failed to mitigate damages during that time period. A back pay claimant under Title VII has a duty to mitigate damages by making a reasonable effort to find other suitable employment. See Hubert v. U.S. Postal Serv. EEOC Petition No. 04920004 (July 10, 1992). The burden is on the agency, however, to establish that the employee failed to mitigate damages. See id. The Commission has generally held that an agency must satisfy the following two-prong test to meet its burden of proof: (1) the petitioner failed to use reasonable care and diligence in seeking a suitable position; and (2) there were suitable positions available which the petitioner could have discovered and for which he was qualified. See id. Where a petitioner does not make an effort to mitigate damages and does not explain the lack of effort, the agency does not have to satisfy the second prong. See Simmons v. U.S. Postal Serv., EEOC Petition No. 04930005 (Dec. 10, 1993). Here, we find that the Agency has not met its burden. Specifically, the record reflects that Petitioner sought employment with various employers (a medical company, the VA, a janitorial services company, a barber shop, an auto repair shop) and sought employment assistance from VA VR&E. In addition, the record contains no evidence that there were other suitable positions available which Petitioner could have discovered and for which he was qualified. Second, we find that no reason to exclude that time period based on Petitioner's inability to work. To the extent that Petitioner was unable to work, the medical documentation in the record for EEOC Appeal No. 0120130887 reflects that it was linked to his discriminatory termination by the Agency. For example, a January 6, 2011 note from Petitioner's VA psychiatrist stated, "It is felt that patient's more severe depression resulting in patient's . . . inability to work . . . [was] significantly exacerbated and caused by the situation of unlawful termination at the [Agency]." Similarly, an October 19, 2012 letter from Petitioner's VA psychologist stated, "Although [Petitioner] suffered from Depression prior to his termination from the [Agency], the termination appeared to have aggravated and precipitated a significant worsening in his Depression to the Moderate and Severe Range and resulted in a significant increase in his service connected compensation award. Currently, he is unable to maintain gainful employment." Therefore, because the Agency's discriminatory termination caused Petitioner to be unable to work, we find that providing full relief to the Petitioner requires that we decline to limit the time period for back pay. Third, we find that the award of compensatory damages is irrelevant to the issue of back pay. Compensatory damages are available in addition to any relief under § 706(g) of Title VII and therefore does not affect the right to back pay already recoverable under Title VII. See EEOC Enforcement Guidance: Compensatory and Punitive Damages Available under § 102 of the Civil Rights Act of 1991, EEOC Notice No. 915.002, § I (July 14, 1992). Accordingly, as compensatory damages and back pay are two different remedies, we find no reason to reduce Petitioner's back pay based on the compensatory damages he received in EEOC Appeal No. 0120130887. CONCLUSION After a review of the entire record, we find that the Agency has not complied with the Commission's order with respect to back pay in EEOC Appeal No. 0120082510 (December 22, 2010), request for reconsideration denied, EEOC Request No. 0520110550 (September 6, 2012). As a result, the Agency is ORDERED to comply with the remedy below. ORDER The Agency shall determine the appropriate amount of back pay, with interest, and other benefits due Petitioner, pursuant to 29 C.F.R. § 1614.501, within one hundred and twenty (120) calendar days from receipt of this decision. Petitioner shall cooperate in the Agency's efforts to compute the amount of back pay and benefits due, and shall provide all relevant information requested by the Agency. The Agency's determination shall include back pay from the March 25, 2008 to October 8, 2012 time period. If there is a dispute regarding the exact amount of back pay and/or benefits, the Agency shall issue checks to Petitioner for the undisputed amount within one hundred and twenty (120) calendar days of the date the Agency determines the amount it believes to be due. Petitioner may petition for enforcement or clarification of the amount in dispute. The petition(s) for clarification or enforcement must be filed with the Compliance Officer, at the address referenced in the statement entitled "Implementation of the Commission's Decision." IMPLEMENTATION OF THE COMMISSION'S DECISION (K0610) 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 77960, Washington, DC 20013. The Agency's report must contain supporting documentation, and the Agency must send a copy of all submissions to Petitioner. If the Agency does not comply with the Commission's order, Petitioner may petition the Commission for enforcement of the order. 29 C.F.R. § 1614.503(a). Petitioner 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, Petitioner 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) (1994 & Supp. IV 1999). If Petitioner 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. ATTORNEY'S FEES (H0610) If petitioner 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. COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (R0610) 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 (Z0815) If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant's Right to File a Civil Action for the specific time limits). FOR THE COMMISSION: ______________________________ Carlton M. Hadden's signature Carlton M. Hadden, Director Office of Federal Operations ___11/19/15_______________ Date 1 This case has been randomly assigned a pseudonym which will replace Petitioner's name when the decision is published to non-parties and the Commission's website. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 0420130028 2 0420130028