WARDELLE MCCLENDON, PETITIONER,
v.
MARVIN T. RUNYON, JR., POSTMASTER GENERAL, UNITED STATES POSTAL SERVICE, AGENCY.

Petition No. 04960013
Appeal No. 01940072

DECISION ON PETITION FOR ENFORCEMENT

INTRODUCTION

Wardelle McClendon (hereinafter referred to as the petitioner), in August 1995, filed a Petition for Enforcement with the Equal Employment Opportunity Commission (Commission) requesting enforcement of the order for remedial relief set forth in Wardelle McClendon v. Marvin T. Runyon, Jr., Postmaster General, United States Postal Service, EEOC Appeal No. 01940072 (August 18, 1994). Pursuant to that Order, the Commission directed the United States Postal Service (hereinafter referred to as the agency) to redress petitioner following a finding that agency officials had discriminated against him because of his perceived physical disability (ruptured Achilles tendon) 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 in this petition is whether the agency has fully complied with the Commission's Order in EEOC Appeal No. 01940072.

BACKGROUND

The record shows that, at the time this matter arose, appellant, a PS-5 City-Carrier with the agency's Paterson, New Jersey facility, had been declared eligible for worker's compensation for a twenty percent permanent-partial loss of the use of his left extremity. The period of the award was November 20, 1990 through September 2, 1991. Petitioner filed a formal complaint against the agency which alleged that he was discriminated against on the bases of sex (male), reprisal (for prior EEO activity), and perceived physical disability (ruptured Achilles tendon) when: (1) he was not detailed to the position of EEO Counselor/Investigator, on May 28, 1991, and (2) he was not selected for the position of EEO Counselor/Investigator, EAS-17, on August 30, 1991. Subsequent to the agency's investigation, petitioner requested and received a hearing before an EEOC Administrative Judge (AJ) who issued a Recommended Decision (RD). The AJ found no discrimination with regard to Issue (1). However, with regard to Issue (2), the AJ found discrimination on the bases of disability and reprisal discrimination.

The final agency decision (FAD) adopted the AJ's recommended decision as to issue (1), the detail nonselection. However, the FAD rejected the RD's findings as to Issue (2), the non-selection for the permanent promotion. Petitioner filed an appeal with the Commission. In McClendon v. United States Postal Service, EEOC Appeal No. 01940072 (August 18, 1994), the Commission affirmed the agency's finding of no discrimination regarding Issue (1); however, with regard to Issue (2), the Commission found that petitioner had been discriminated against on the basis of a perceived physical disability. The Commission ordered, among other things, the following relief:

(1) [Petitioner] shall immediately be placed in the position of EEO Counselor/Investigator, EAS-17, or its substantial equivalent, for which he is qualified and whose essential functions he is able to perform with or without reasonable accommodation; and

(2) 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, no later than sixty (60) calendar days after the date this decision becomes final. The [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. If there is a dispute regarding the exact amount of back pay and/or benefits, the agency shall issue a check to the [Petitioner] for the undisputed amount within sixty (60) calendar days of the date the agency determines the amount it believes to be due. The [Petitioner] may petition for enforcement or clarification of the amount in dispute. The petition 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.

There is no dispute between the parties that the effective date of the promotion was September 7, 1991. The parties are also in agreement that during the period of September 3, 1991 through June 22, 1992, the petitioner was in a non-duty status. He received compensation from the Office of Workers' Compensation Programs (OWCP) for the period of September 3, 1991 through June 22, 1992, when he accepted a limited duty position with the agency.

On August 4, 1995, the agency issued its compliance report to the Office of Federal Operations, Compliance and Control Division (Compliance). The report indicated that:

1). The [Petitioner] was placed into the EEO Counselor/Investigator position in November 1994, and was promoted retroactively to 9/7/91.

2). Appropriate back pay with interest was determined with any benefits due and paid to [Petitioner].1 

3). The [Petitioner] received back pay and wrote to [the] EEO Specialist with concerns. His concerns were addressed during a meeting on May 23, 1995.

4). The Selecting Official received training in the law regarding disability discrimination.

5). The EEOC Posting was displayed at the New Brunswick USPS for the period 10/21/94-12/21/94.

In a letter dated August 10, 1995, the petitioner notified the Commission that the agency did not compensate him for the period of September 7, 1991 through June 22, 1992. He also noted the agency's failure to provide him with annual and sick leave for the period in question. On August 28, 1995, Compliance issued a letter finding that the agency had complied with the order in EEOC Appeal No. 01940072.

The record contains a May 17, 1995 memorandum from a Human Resources Specialist (HRS) to the Senior EEO Specialist. According to the HRS, the petitioner, during his non-duty status, received compensation at the rate of 75% of his salary, tax free. Consequently, because his normal salary would have been taxed, had he worked during the period of September 7, 1991 through June 22, 1992, the HRS concluded that the petitioner received the same "net pay" and therefore was not entitled to the 25% difference, "because there was no loss." The HRS also said that the petitioner was not entitled to sick or annual leave during the period of September 7, 1991 through June 22, 1992, because he was in a non-pay status with the agency. Citing an agency regulation, ELM 512.311(e)(1), the HRS said "[e]mployees do not earn sick and annual leave while off the rolls or in a non-pay status."

ANALYSIS AND FINDINGS

In order to deprive appellant of his entitlement to back pay and leave during the period when he was not working and receiving workers' compensation payments, it must be determined whether appellant could have performed in the EEO Counselor/Investigator position at the time of the selection. First, the Commission notes that the record contains no medical evidence that had the petitioner been selected, he would have been unable to perform the duties of an EEO Counselor/Investigator during the period of September 7, 1991 through June 22, 1992. Petitioner testified that he had not worked as a Carrier since 1988, when he was injured, because he could not stand or walk for prolonged periods of time. However, the agency has not presented any evidence that the EEO Counselor/Investigator position requires the same prolonged standing or walking as that required of a Carrier. Therefore, we find that the petitioner was able to perform the duties of an EEO Counselor/Investigator during the period of September 7, 1991 through June 22, 1992. Consequently, appellant shall be reimbursed for back pay and have any leave restored pursuant to the qualifications set forth herein.

BACK PAY
With respect to back pay, it is well settled that workers' compensation awards do not preclude recoveries for discrimination, such as back pay, where such awards do not result in double recovery. Miller v. Bolger, 802 F.2d 660, 664 (3d Cir. 1986); Ferguson v. United States Postal Service, EEOC Request No. 05880848 (May 8, 1990); Tuch v. United States Postal Service, EEOC Appeal No. 01881207 (June 8, 1988). In line with these rulings, the Commission has also held that workers' compensation awards under the Federal Employees Compensation Act (FECA) do not preclude awards of back pay under the Rehabilitation Act. Davis v. United States Postal Service, EEOC Petition No. 04900010 (Nov. 29, 1990).

Therefore, an OWCP award that is meant to compensate for lost wages should be deducted from the total amount of back pay to which the petitioner is entitled in order to avoid a double wage recovery, but the portion of the OWCP award that is paid as reparation for physical injuries should not be deducted from back pay because it is unrelated to wages earned. See EEOC v. Blue & White Service Corp., 674 F. Supp. 1579, 1582 (D. Minn. 1987); Ferguson, EEOC Request No. 05880848 at pp. 12-13. Consequently, in the present case, if the petitioner's OWCP award was meant to compensate him for lost wages, he would be entitled to the difference between the total amount of back pay that he would have earned during the period of September 7, 1991 through June 22, 1992, and the amount of the OWCP award that he received for the period. On the other hand, if the OWCP award was meant to compensate the petitioner for his physical injuries, he would be entitled to the total amount of back pay that he would have earned during the period of September 7, 1991 through June 22, 1992. Because the record does not indicate whether the petitioner was compensated for lost wages or as reparations for his injuries, we will remand this matter to the agency for additional investigation in accordance with the Order below.

LEAVE

We also reject the agency's contention that the petitioner was not entitled to sick or annual leave during the period of September 7, 1991 through June 22, 1992, because he was in a non-pay status. Notwithstanding the agency's reliance on its regulation to reach this conclusion, we remind the agency that the relief which is provided pursuant to Title VII is designed to make a person who has been subjected to discrimination "whole" by placing him/her "as near as may be, in the situation (s)he would have occupied if the wrong had not been committed." Albermarle Paper Co. v. Moody, 442 U.S. 405, 418-419 (1975).2 Based on our determination above that the petitioner was able to perform the duties of an EEO Counselor/Investigator during the period of September 7, 1991 through June 22, 1992, we find that he is entitled to all benefits to which he would have been entitled, including, but not limited to, the annual and sick leave that he would have earned had he been permitted to work full time absent discrimination. We, therefore, will remand this matter to the agency for additional investigation in accordance with the Order below.

CONCLUSION

Based upon a review of the record, and for the foregoing reasons, Petitioner's request is granted. The Commission, for the reasons set forth above, remands the Petition for Enforcement to the agency for further processing in accordance with the Order below.

ORDER

The agency, within sixty (60) calendar days of the date this decision becomes final, is ORDERED to take the following remedial action:

A. The agency will ascertain whether the compensation that the petitioner received from the OWCP during the period of September 7, 1991 through June 22, 1992, was for lost wages, or in reparation for his physical injuries. If the agency determines that the petitioner was compensated for lost wages then it shall reimburse him for the difference between what he would have earned during the period in question and the amount he was actually provided by the OWCP, with interest. If the agency determines that the petitioner was compensated by the OWCP in reparation for his physical injuries then it shall provide him back pay with interest in accordance with the Order in EEOC Appeal No. 01940072.

B. The agency shall also determine and restore all other benefits, e.g., sick and annual leave due the petitioner, pursuant to 29 C.F.R. §1614.501 and 5 C.F.R. §550.805(g)(1) for the period of September 7, 1991 through June 22, 1992.

C. The agency must send a copy of the above determinations to the Compliance Officer as referenced below.

ATTORNEY'S FEES (H1092)

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.

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.

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:

Frances M. Hart
Executive Officer
Executive Secretariat

May 22, 1997

1. The record indicates that the Petitioner received payments in the amount of $18,419.42 for back pay and $1,743.03 for interest. The period of the award was July 2, 1992 through March 10, 1995.

2. In the area of disability discrimination, §505(a)(1) of the Rehabilitation Act provides that the remedies of §717 of Title VII shall be available to complaints of discrimination made under §501 of the Rehabilitation Act.