Gary Besemer, Petitioner,
v.
Anthony M. Frank, Postmaster General, United States Postal Service, Agency.

Petition No. 04890005

CLARIFICATION

INTRODUCTION

On August 22, 1988, Gary Besemer (hereinafter referred to as petitioner) initiated a petition for enforcement to the Equal Employment Opportunity Commission (EEOC) requesting enforcement of a May 24, 1988 Commission Order. In the May 24, 1988 Order, the United States Postal Service (hereinafter referred to as agency) was directed to redress petitioner for acts of reprisal discrimination taken in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. 2000e et seq. The petition for enforcement is accepted by this Commission in accordance with the provisions of EEOC Regulation 29 C.F.R. 1613.238.

ISSUE PRESENTED

The issue presented in this petition is whether the agency complied with the May 24, 1988 Order instructing it to award backpay and all other benefits which would have accrued in the absence of discrimination, i.e., whether petitioner has provided evidence to show that the agency should have awarded him additional premium pay, night differential pay, and pay from penalty hours as part of petitioner's backpay award.

BACKGROUND

The controversy surrounding the present case arose when petitioner, a Bulk Mail Distribution Clerk, PS-5, filed three formal complaints of discrimination alleging either sex or reprisal discrimination when: (1) his position was reposted with a revised starting time on February 4, 1985, which resulted in his demotion to a lower grade; (2) the agency removed position #63, Postage Due Clerk, PS-5, from the bidding procedure on March 1, 1985; and (3) his request for a temporary change of schedule was denied on March 18, 1985. Although the agency issued a final decision finding no discrimination based on sex or reprisal, petitioner appealed the agency's decision to the Commission. In a May 24, 1988 decision, the Commission found for petitioner on all three complaints. Accordingly, the agency was ordered to take the following remedial action:

(1) The agency is directed to immediately and retroactively promote appellant to the position of Postage Due Clerk, PS-6, effective February 4, 1985, with backpay and all other benefits which would have accrued in the absence of discrimination. Backpay shall be computed in the same manner as prescribed by 5 C.F.R. 550.805. If appellant declines to accept the promotion, backpay liability shall cease on the date he is notified by the agency of his opportunity to accept promotion; otherwise, backpay liability shall cease on the date appellant is promoted to the position. The agency is also directed to revise appellant's attendance record to restore annual leave for 4 hours 45 minutes. Reasonable attorney's fees shall be awarded in accordance with 29 C.F.R. 1613.271(d).

(2) The agency is directed to conduct training for its supervisory and managerial staff at its Farmingdale, New York facility. The training shall detail their responsibilities with respect to eliminating discrimination based on sex and reprisal in the workplace. The training should also address supervisory and managerial responsibilities under all federal equal employment opportunity laws.

(3) The agency is directed to post at its facility in Farmingdale, New York copies of the attached notice. Copies of the notice, after being signed by the agency's duly authorized representative, shall be posted by the agency immediately upon receipt, and be maintained by it for 60 consecutive days, in conspicuous places, including all places where notices to employees and applicants for employment are customarily posted. The agency shall take reasonable steps to ensure that said notices are not altered, defaced, or covered by any other material.

The record reflects that petitioner was promoted to a Postage Due Clerk, PS-6, effective February 4, 1985, with backpay, totaling $9,130.74. EEO training was conducted at the agency facility on August 4, 1988 and the prescribed notice was posted there from June 30, 1988 through August 28, 1988. Additionally, the record reflects that petitioner received a draft from the Office of Worker's Compensation Programs (OWCP) in the amount of $4,608.84, and attorneys fees totaling $5,850.00. Consequently, the Commission terminated compliance monitoring on August 12, 1988.

On August 22, 1988 petitioner, through his attorney, informed the Commission that the agency's remedy was incomplete, inasmuch as he did not receive all of the lost overtime and out-of-schedule overtime to which he was entitled. In later correspondence, petitioner stated that he had no complaints with the OWCP adjustment or his legal fees. Nonetheless, petitioner contended that he was entitled to 2 1/2 hours additional premium pay, 1 hour night differential, and any and all penalty hours he should have received from 1984 to 1986, for a total of $46,873.26 in additional backpay.

In response to petitioner's correspondence, the agency submitted correspondence of its own in which it claimed that the agency was in compliance with our previous Order. The agency explained that pay adjustments included all overtime, night hours, out-of-schedule pay, holiday, Sunday differential, work/LWOP, annual, and sick leave hours. Specifically, the agency stated that out-of-schedule premium pay was issued based upon a 6:00 a.m. bid, as stated in the Commission decision. Moreover, overtime hours that petitioner did work as a Bulk Mail Clerk during the period in question were not deducted from his pay adjustments, and he received the overtime hours that the incumbent of the Postage Due Clerk, PS-6, position received during that period. The agency submitted numerous forms to document its position.

The Commission notes that one of the central problems in this case involves whether petitioner's backpay award should have been based upon a 6:00 a.m. bid, inasmuch as a change in the bid to 5:00 a.m. will result in a change of the premium pay, penalty pay, and night differential pay due petitioner.1 Because this problem is not clarified in our previous decision, the Commission finds that the issuance of a CLARIFICATION of the May 24, 1988 Order is warranted. As noted in 29 C.F.R. 1613.238(c), a clarification does not change the result of a prior decision, nor does it enlarge or diminish the relief ordered. Instead, the Commission believes that the following analysis will facilitate a resolution of the controversy presented in this petition for enforcement.

ANALYSIS AND FINDINGS

Relief which is provided pursuant to Title VII is designed to make a person who has been subjected to discrimination 'whole' by placing him 'as near as may be, in the situation he would have occupied if the wrong had not been committed.' Albermarle Paper Co. v. Moody, 422 U.S. 405, 418-419 (1975). The purpose of a backpay award is to restore petitioner to the position he would have occupied, but for the discrimination. Day v. Matthews, 530 F.2d 1083 (D.C. Cir. 1976). The Commission recognizes that precise measurement cannot always be used to reduce the wrong inflicted, inasmuch as the computation of backpay awards inherently involves speculation. Consequently, unrealistic exactitude is not required in backpay determinations. Nonetheless, uncertainties involved in a backpay determination should be resolved against the discriminating employer. Hairston v. McLean Trucking Co., 520 F.2d 226 (4th Cir. 1975). Therefore, the Commission believes that the burden of limiting the remedy rests with the defendant agency. Smallwood v. United Air Lines, Inc., 728 F.2d 614, 616, n. 5 (4th Cir.), cert. denied, 469 U.S. 832 (1984).

In the present case, the Commission finds that the agency has met its burden of limiting the remedy. The agency stated that the calculation of petitioner's backpay award was based upon a 6:00 a.m. bid, as per the Commission's prior decision. While we do not specifically state in our prior decision that the calculation should be based upon a starting time of 6:00 a.m., we note that the bid was originally posted at 6:00 a.m. Petitioner's representative also admits in his opening statement presented at the hearing that petitioner's original tour began at 6:00 a.m. Notwithstanding any subsequent changes in the starting time due to requests made by other employees or changing needs of the agency facility, the Commission finds that 6:00 a.m., the original posting, is the proper basis for calculation. Inasmuch as the agency has established that all premium pay, penalty pay, and night differential pay was issued to petitioner based upon the 6:00 a.m. tour, the Commission finds that the agency had complied with our May 24, 1988 Order.

The Commission also finds that petitioner has received all the overtime to which he is entitled. The agency awarded petitioner the overtime worked by the incumbent of the position on those days that petitioner was on the rolls of the agency and not receiving compensation from OWCP.2 Inasmuch as the incumbent of the position was clearly similarly situated to petitioner, we find that the comparative used by the agency was proper. There is no evidence that other more similarly situated employees received greater overtime pay.

CONCLUSION

Based upon a review of the record, and for the foregoing reasons, the Commission issues this CLARIFICATION of the remedy ordered in Gary Besemer v. Anthony M. Frank, Postmaster General, United States Postal Service, Northeastern Region, EEOC Appeal No. 01870809 (May 24, 1988). It is the decision of this Commission that the agency has fully complied with our previous decision, and therefore, petitioner's Petition for Enforcement is hereby denied. There is no right of administrative appeal from this denial.

RIGHT TO FILE A CIVIL ACTION

This decision of the Commission is final, and there is no further right of administrative appeal from the Commission's decision. However, you may have the right to file a civil action in the appropriate United States District Court WITHIN THIRTY (30) DAYS of the date that you receive the Commission's decision. If you file a civil action, YOU MUST NAME THE PERSON WHO IS THE OFFICIAL AGENCY HEAD OR DEPARTMENT HEAD AS THE DEFENDANT IN THE COMPLAINT. Agency or department means the national organization, and not the local office, facility or department in which you might work. DO NOT JUST NAME THE AGENCY OR DEPARTMENT. You must also state the title of the official agency head or department head. Failure to provide the NAME AND OFFICIAL TITLE of the agency head or department head, may result in the dismissal of your case. Fed. R. Civ. P. 25(d)(2).

If any of your claims of discrimination were based on the Age Discrimination in Employment Act of 1967 (29 U.S.C. 633a), as amended, AS TO THOSE CLAIMS ONLY, you MAY have up to six years after the right of action first accrued in which to file a civil action. See Lehman v. Nakshian, 453 U.S. 156 (1981); 29 U.S.C. 633a(f); and 28 U.S.C. 2401(a).

APPOINTMENT OF COUNSEL

If you decide to file a civil action and do not have or are unable to obtain the services of an attorney to act on your behalf, under Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e et seq., as amended, and the Rehabilitation Act of 1973, 29 U.S.C. 791 and 794c, as amended, you may request that the Court appoint an attorney to represent you. The Court may, in its discretion, appoint an attorney to represent you and may also permit you to file the civil action without payment of fees, costs, or security. If you want to request appointment of an attorney, your request must be FILED WITH THE COURT WITHIN THE TIME LIMITS FOR FILING A CIVIL ACTION, discussed above.

FOR THE COMMISSION:

Frances M. Hart
Executive Officer
Executive Secretariat

December 14, 1989

1. We note that petitioner claims that his backpay award should be based upon a 5:00 a.m. bid, inasmuch as he worked this schedule when he was reinstated to the position after filing a grievance, and he claims that the tour began at 5:00 a.m. approximately eight years prior to his receipt of the bidded tour. If petitioner was awarded backpay based upon a 5:00 a.m. bid, he would be entitled to 2 1/2 hours more premium pay, and one hour additional night differential pay, for the reason that the tour for a Bulk Mail Clerk is 9:00 a.m. to 6:00 p.m., and night differential pay is calculated from 6:00 p.m. to 6:00 a.m.

2. The Commission notes that the great discrepancy between the views of petitioner and that of the agency regarding any additional payment due petitioner could also be due, in part, to the fact that petitioner has neglected to exclude those days that he received worker's compensation benefits from his backpay calculation. Petitioner is not entitled to receive both forms of compensation, inasmuch as that would award him a windfall.