J.D. Davis, Petitioner,
v.
Anthony M. Frank, Postmaster General, United States Postal Service, Agency.

Petition No. 
04900010

November 29, 1990

CLARIFICATION

INTRODUCTION

On May 26, 1990, J.D. Davis (hereinafter referred to as petitioner) initiated a petition for enforcement to the Equal Employment Opportunity Commission (EEOC) requesting enforcement of an April 16, 1990 Commission Order. In the April 16, 1990 Order, the United States Postal Service (hereinafter referred to as agency) was directed to redress petitioner for acts of discrimination taken in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. 2000e et seq., and 501 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. 791 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 in this petition is whether appellant is entitled to backpay for a period of time during which he was paid benefits by the Office of Workers' Compensation Programs (OWCP), i.e., whether workers' compensation benefits constitute the government's exclusive and total liability to petitioner.

BACKGROUND

Petitioner filed a complaint of race (Black) and sex (male) discrimination when he was terminated during his probationary period from his position as a City Carrier, PS-5. Although the agency issued a final decision finding no race or sex discrimination, petitioner appealed the agency's decision to the Commission. In an April 16, 1990 decision, the Commission found that appellant was not only subjected to race and sex discrimination when he was terminated, but handicap discrimination as well. Accordingly, the agency was ordered to take the following remedial action:

1. The agency shall reinstate appellant to a career appointment as a City Carrier, PS-5 subject to a 90-day probationary period. The agency shall accomplish this action within thirty (30) calendar days of the date this decision becomes final. During this second probationary period 30, 60 and 80-day evaluations shall be done pursuant to agency regulations.

2. The agency is ordered to issue a check to appellant no later than thirty (30) calendar days from the date this decision becomes final, for appropriate backpay with interest and other benefits from the date of his termination effective May 20, 1988. Appellant is ordered to cooperate in the agency's efforts to compute the amount of backpay, interest, and benefits due, and to provide all necessary information the agency requests to help it comply. If there is a dispute about the amount of backpay, interest due, and/or other benefits, the agency is ordered to issue a check to the appellant for the undisputed amount within thirty (30) calendar days of the date this decision becomes final. The appellant may petition for enforcement or clarification on the amount in dispute. This petition must be sent to the Compliance Officer as referenced in the implementation paragraph below.

3. Appellant shall be awarded appropriate attorney's fees pursuant to 29 C.F.R. 1613.271(d).

4. The agency is directed to post at its facilities in Arlington, Texas, 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 shall 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's attorney was paid attorney's fees totaling $551.00 thus far, and a notice was posted at the agency facility in question from June 4, 1990 through August 4, 1990. In response to petitioner's petition for enforcement, the agency claimed that it complied, to the best of its ability, with the April 16, 1990 Commission Order. The agency argued that reinstatement and backpay were not appropriate, inasmuch as petitioner was determined by OWCP to be temporarily totally disabled, and received a payment from OWCP in the amount of $14,521.16 for the period October 8, 1988 through August 26, 1989. The agency submitted additional evidence from the OWCP establishing that petitioner continued to receive monthly payments of $1,162.56 (75% of his regular pay, exempt from taxation), as well as health benefits and optional insurance. According to the agency, the legislative history of the Federal Employees Compensation Act (FECA) makes it clear that compensation under FECA is the exclusive remedy, and therefore no further relief beyond FECA benefits are owing to petitioner. Citing the case of Hill v. Thomas, C.A. No. 82-1708 (D.D.C. November 3, 1983), the agency claimed that courts have recognized that workers' compensation benefits provide full relief as well.

In response to the agency, petitioner, through his attorney, noted that because of agency error, OWCP was misinformed that petitioner did not file a claim for compensation until after his termination. Moreover, petitioner argued that the agency erroneously cancelled his medical coverage for a period of time. Petitioner concluded that, because of these incidents, and the agency's refusal to pay backpay and reinstate him, he has not been made whole.

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.' Albemarle Paper Co. v. Moody, 422 U.S. 405, 418-419 (1975). The policy behind Section 501 of the Rehabilitation Act is to 'make whole' any victim of handicap discrimination as well. [FN1] 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; nonetheless, 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 agency attempts to limit the remedy by arguing that because petitioner is receiving workers' compensation benefits under FECA, he is not entitled to backpay. To resolve this issue, we must turn to the statutory language of FECA. It is true that the receipt of compensation under FECA limits the employee's right to obtain other compensation from the federal government. 5 U.S.C. 8116 (c) provides in pertinent part:

The liability of the United States or an instrumentality thereof under this subchapter ... with respect to the injury or death of an employee is exclusive and instead of all other liability of the United States or the instrumentality to the employee ... entitled to recover damages from the United States or the instrumentality because of the injury or death in a direct judicial proceeding in a civil action, or in admiralty, or by an administrative or judicial proceeding under a workmen's compensation statute or under a Federal tort liability statute.

From this language, we discern that FECA is the exclusive source of 'damages ... because of injury', and it supplants alternative remedies 'under a workmen's compensation statute or under a Federal tort liability statute.' An examination of the legislative history, however, makes clear that FECA was intended only to be an exclusive substitute for suits against the United States for tortious injury. S.Rep. No. 836, 81st Cong., 1st Sess., reprinted in, 1949 U.S. Code Cong. Ad. News 2125, 2136, 2143 (emphasis added), cited in, Miller v. Bolger, 802 F.2d 660 (3d. Cir. 1986). Indeed, the language of 5 U.S.C. 8116(c) has generally been held to apply to personal injury claims covered by the Federal Tort Claims Act and the Suits in Admiralty Act. Nichols v. Frank, 732 F. Supp. 1085 (D. Or. 1990), (citing Reep v. United States, 557 F.2d 204, 207 (9th Cir. 1977)). In contrast, Title VII refers to 'equitable relief', not damages, and its remedies are viewed as equitable make whole relief. Rode v. Dellarciprete, 646 F. Supp. 876, 883 (M.D. Pa. 1986). The different relief afforded by the two statutes was particularly significant to the Third Circuit. As noted in Miller v. Bolger, supra:

Under FECA, an employee cannot recover any pay for periods prior to the date the Secretary of Labor determines the physical disability began.... Under Title VII Miller may recover back pay as relief for discrimination in the period prior to his physical disability.... Under FECA, a federal employee can recover at most three quarters of his or her pay.... Under Title VII ... no percentage reduction applies as in FECA. FECA makes no provision for recovery of attorney's fees.... FECA recovery (provides) ... no vehicle by which a federal employee could secure an order directing reinstatement, if warranted.

Thus, the Third Circuit concluded that under the 'make whole' theory, a postal employee's recovery of FECA benefits did not preclude him from pursuing Title VII remedies for discrimination.

The court did emphasize, however, that both FECA and Title VII guard against double recovery, but declined to specifically decide what relief might be recoverable under Title VII for lost wages if the employee was also recovering FECA benefits for lost wages. Id. p. 666 n. 5.

The reasoning of Miller v. Bolger was followed in a recent district court opinion, wherein the District Court of Oregon held that, to the extent that the backpay sought by a Postal Service employee did not constitute double recovery, the employee could pursue her claim for backpay, despite the receipt of benefits under FECA. Nichols v. Frank, 732 F. Supp. 1085 (D. Or. 1990). Other courts have also held that workers' compensation benefits are not an exclusive remedy, and therefore are deductible from backpay awards. See EEOC v. Blue and White Service Corp., 674 F. Supp. 1579 (D. Minn 1987); Gullet Gin Co. Inc. v. National Labor Relations Board, 179 F.2d 499 (5th Cir. 1950). Similarly, the Commission has recently held that FECA benefits are not the exclusive remedy. See generally, Ann C. Ferguson v. United States Postal Service, EEOC Request No. 05880848 (May 8, 1990); JoAnn Wreford v. United States Postal Service, EEOC Request No. 05890055 (June 29, 1989).[FN2]

The agency cites the cases of Black v. Frank, 730 F. Supp. 1087 (S.D. Ala. 1990) and Hill v. Thomas, CA No. 82-1708 (D.D.C. November 3, 1983) to support its view that petitioner is due no backpay. Nonetheless, the Commission finds that these cases do not comport with recent Commission policy. Specifically, the cases do not consider the different relief available under FECA and Title VII, nor do the cases thoroughly examine the legislative intent behind the two Acts. We recognize that in Hill v. Thomas we advocated the theory that OWCP payments constituted the totality of the compensation due and owing; nonetheless, we find that the more recent case law opposing exclusivity is the most equitable result.

Having found that FECA benefits are not an exclusive remedy, we must now determine petitioner's backpay entitlement. In the present case, it is clear that petitioner was taken off the agency rolls because he incurred an employment-related back injury on May 9, 1988. Evidence received from the agency reveals that petitioner received workers' compensation benefits for his total disability from October 8, 1988 through August 26, 1989, in the amount of $14,521.16. Thus, the Commission finds that petitioner was not able to work from October 8, 1988 through August 26, 1989. Moreover, the evidence from the agency reveals that petitioner began to receive continuous monthly payments from OWCP in the amount of $1,258.80 beginning August 27, 1989. Again, the compensation was for temporary total disability. The record does not indicate that the payments were terminated, thus we find that petitioner continued to be totally disabled.

On June 25, 1990, in response to an agency request, petitioner's physician submitted a report. In this report he indicated that petitioner could return to work in a part-time capacity with certain restrictions on his activities. The doctor opined that petitioner could gradually increase to an eight-hour workday and liberalize his activities as he improves. Considering the evidence submitted by the agency in an effort to limit the remedy in this case, the Commission concludes that petitioner's back injury rendered him unfit for duty from October 8, 1988 through June 25, 1990, the date of the most recent doctor's report. Given that the evidence indicates that petitioner was not able to work from October 8, 1988 through June 25, 1990, he is not entitled to backpay for this period. We emphasize that this finding is not based upon the fact that petitioner's OWCP compensation was an exclusive remedy. We instead base our finding on the evidence that petitioner was physically unable to work from October 8, 1988 through June 25, 1990.

The agency has submitted no evidence to limit the remedy from May 20, 1988 to October 8, 1988. We specifically note that the agency has submitted no unequivocal evidence verifying that petitioner was indeed unfit for duty up to October 8, 1988. We note that it is the agency's burden to submit such evidence. Accordingly, the Commission concludes that petitioner is due backpay from May 20, 1988 to October 8, 1988, in addition to appurtenant benefits and interest accumulated during this period. Given that petitioner was able to return to part-time employment as of June 25, 1990, he is entitled to backpay beginning this day and continuing. We note that petitioner's backpay should be offset by any compensation received from OWCP during this time. [FN3] The agency shall provide petitioner a complete and detailed accounting of the backpay calculation. Such an accounting must include a detailed accounting of earnings for each pay period during the time in question, which shall show the gross pay, Sunday and Holiday premiums, adjustments, etc., as well as the effective dates and salary changes. A calculation of interest shall also be included, along with calculations regarding the offset of workers' compensation benefits received.

Having clarified petitioner's backpay entitlement, there is still the matter of petitioner's reinstatement. According to the evidence of record, petitioner was not able to return to work until June 1990. It appears that as of June 1990, petitioner was able to resume part-time employment, and gradually resume a full time position. As such, he is entitled to reinstatement to a probationary position of part-time City Carrier. Petitioner should be permitted to gradually resume his full time position. The agency is directed to evaluate petitioner at thirty, sixty, and eighty days as before.

CONCLUSION

Based upon review of the record, and for the foregoing reasons, the Commission issues this Clarification of the remedy ordered in J.D. Davis v. Anthony M. Frank, Postmaster General, United States Postal Service, EEOC Appeal No. 01902389 (April 16, 1990). The agency is directed to reinstate petitioner in accordance with this CLARIFICATION, and award petitioner backpay and all other benefits to which he would have been entitled had the discrimination not occurred.

IMPLEMENTATION OF THE COMMISSION'S DECISION (R990)

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 by writing the Compliance Officer, Office of Review and Appeals, 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 petitioner.

STATEMENT OF PETITIONER'S RIGHTS

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 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).

RIGHT TO REQUEST COUNSEL (R990)

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 THIRTY (30) DAYS from the date you receive the Commission's decision.

FOR THE COMMISSION:

Frances M. Hart
Executive Officer
Executive Secretariat

[FN1]. See 505 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. 791 et seq.

[FN2]. The Commission notes that in Ferguson and Wreford, we held that the portion of workers' compensation paid as reparation for physical injury, as opposed to lost wages, should not be deducted from a backpay award. Inasmuch as the present case involves only FECA benefits received for lost wages, we need not address the issue of benefits paid for physical injury in this decision.

[FN3]. If petitioner received payment from OWCP for temporary total disability beginning June 25, 1990, when in fact he was entitled to compensation for partial disability, he may owe OWCP the overpayment he received.