COLETTE L. HANNS, PETITIONER,
v.
MARVIN T. RUNYON, JR., POSTMASTER GENERAL, UNITED STATES POSTAL SERVICE, (PACIFIC/WESTERN REGION), AGENCY.

Petition No. 04960030
Appeal No. 01943389

DECISION ON PETITION FOR ENFORCEMENT

INTRODUCTION

On September 25, 1996, Colette L. Hanns (hereinafter referred to as petitioner) initiated a petition for enforcement to the Equal Employment Opportunity Commission (EEOC) requesting the enforcement of the order for remedial relief set forth in Colette L. Hanns v. United States Postal Service, EEOC Appeal No. 01943389 (October 24, 1995). Pursuant to that order, the United States Postal Service (hereinafter referred to as the agency) was directed to redress petitioner for a violation 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

Whether the agency has fully complied with the Commission's order to retroactively hire petitioner into a casual position, with an award of backpay at the appropriate grade and step.

BACKGROUND

The controversy surrounding this case arose when petitioner filed a formal complaint of discrimination with the agency, dated March 22, 1993. In that complaint, petitioner alleged that the agency discriminated against her on the basis of her physical disability (myelitis) when she was found to be medically unqualified to be hired for a casual clerk position at the Ukiah, California Post Office in November 1992. At petitioner's request, a hearing was held on her complaint before an EEOC Administrative Judge (AJ) on December 1, 1993.

On February 2, 1994, the AJ issued a recommended decision finding petitioner had been subjected to disability discrimination. To remedy the discrimination, the AJ recommended, that if the agency concluded, after completing a proper accommodation assessment, that petitioner could have been reasonably accommodated in the disputed position, she should be immediately placed in a casual position and provided with an appropriate award of backpay. The AJ further held that the backpay should include "the amount paid to transitional employees during the time the complainant would have been offered such position, i.e., after two terms of casual employment."1 AJ's Findings of Fact and Conclusions of Law at 32.

On April 6, 1994, the agency issued petitioner a final decision rejecting the AJ's finding of discrimination. Petitioner appealed this decision to the Commission. On October 24, 1995, the Commission reversed the agency's final decision, finding disability discrimination had occurred. Colette L. Hanns v. United States Postal Service, EEOC Appeal No. 01943389. Based on this finding, the Commission ordered the agency to take the following remedial action:

[Petitioner] shall be retroactively hired into a casual position, or a substantially comparable position. [Petitioner] is to receive pay at the appropriate grade and step.

The Commission's order also provided that the agency issue petitioner a check "for the appropriate amount of backpay, 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."Since the agency did not request reopening of the Commission's decision, it became final and the agency was obligated to fully comply with its order.

The record indicates that while petitioner's complaint was being processed the agency hired her into a career position effective March 19, 1994. Prior to this appointment, petitioner had been essentially unemployed since November 1992. Upon receipt of the Commission's October 24, 1995 decision, the agency provided petitioner with a backpay award reflecting the salary she would have received had she served two casual ninety-day appointments. In addition, the agency provided petitioner with interest on the backpay award commencing on January 1, 1993, calculated daily based on the Quarterly Federal Internal Revenue Service Overpayment Interest Rate.

On September 25, 1996, the petitioner filed the instant Petition for Enforcement asserting the agency had failed to fully comply with the Commission's order in EEOC Appeal No. 01943389 by erroneously calculating her backpay award. Specifically, petitioner contends that backpay should have been calculated to reflect the normal career progression of a casual employee at the Ukiah Post Office. Therefore, petitioner asserts that after she received backpay for two ninety-day casual appointments, she should have received backpay first as a transitional employee (TE), and then a part-time flexible (PTF) employee, through March 19, 1994, the date of her employment into a full-time career position. Petitioner argues that this was the usual career progression for casual employees, and the one represented to her by the Ukiah Postmaster when she first applied for a casual position. In addition, petitioner asserts her backpay award should have included an allowance for the overtime wages she would have earned as a casual employee, especially in light of the fact that she would have been hired over the winter holiday season. Petitioner also claims entitlement to the value of the health insurance benefits she would have received as a TE. Finally, petitioner argues that the agency should have calculated interest from November 28, 1992, the date she claims she would have started working, rather than January 1, 1993.

In its response to the petition for enforcement, the agency asserts it fully complied with the Commission's order in EEOC Appeal No. 01901479.

ANALYSIS AND FINDINGS

The Commission's order in Colette L. Hanns v. United States Postal Service, EEOC Appeal No. 01943389 (October 24, 1995) directed the agency to redress the petitioner for its discriminatory actions in violation of the Rehabilitation Act of 1973, as amended, 29 U.S.C. §791 et seq. The issue now before the Commission is whether the agency has fully complied with the order in EEOC Appeal No. 01943389.2 After carefully reviewing the Commission's previous decision in this matter, the AJ's recommended decision, the arguments of the parties and the entire record, the Commission finds that its previous order requires some further compliance from the agency.

Backpay which is provided pursuant to a finding of discrimination is designed to make the victim "whole" by placing him or her "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, 418-19 (1975). The Commission recognizes that precise measurement cannot always be used to remedy the wrong inflicted, and therefore, the computation of backpay awards inherently involves some speculation. The Commission has held that uncertainties involved in a backpay determination should be resolved against the agency which has already been found to have committed acts of discrimination. See J.D. Davis v. United States Postal Service, EEOC Petition No. 04900010 (November 29, 1990); Gary Besemer v. United States Postal Service, EEOC Petition No. 04890005 (December 14, 1989).

It is undisputed in this case that the agency has provided petitioner with a backpay award reflecting the salary she would have earned had she served two consecutive ninety-day casual appointments. The agency argues that this resulted in full compliance with the Commission's previous order in Appeal No. 01901479 that petitioner be "retroactively hired into a casual position" and be provided with "[back]pay at the appropriate grade and step."Petitioner asserts that she is entitled to further backpay reflecting first a transitional appointment following the two casual appointments, and then an appointment as a PTF employee, through the effective date of her career appointment (March 19, 1994) with the agency. Petitioner argues she is entitled to this additional award because it mirrors the usual career path of casual employees at the Ukiah Post Office and places her in the position she would have been in had she not been the victim of discrimination.

The Commission is unpersuaded by petitioner's arguments that the Commission's decision in EEOC Appeal No. 01901479 entitled her to backpay reflecting retroactive placement in a transitional and/or PTF position following her casual appointment. The Commission's decision specifically ordered petitioner's placement in a "casual position" with backpay appropriate to that appointment. It did not impose any duty to place petitioner in other positions following the expiration of her casual appointment. The record is clear that casual appointments are limited to terms of 90 days, with no guarantee of rehire. While petitioner asserts that casual employees customarily received transitional appointments after two 90-day casual terms, and then eventually secure career appointments, the evidence of record does not support this claim.

The record shows that no one else was hired by the agency in place of petitioner when the decision was made that she was not medically qualified to serve as a casual employee. Therefore, unlike the usual nonselection case, direct comparison with the career path of a selectee is not available. The agency has submitted some evidence related to all employees hired at the Ukiah Post Office between October 1992 and September 1994, from which it appears that some casuals eventually secured a transitional, and then career, appointment and others did not. Moreover, the agency's submission indicates that no transitional employee was hired at the Ukiah Post Office between December 1992 and the date petitioner secured a career position with the agency. The agency argues that this evidence strongly indicates that petitioner would not have received a transitional appointment following her two casual appointments as it appears that there was no need for a transitional employee during this relevant period. Petitioner has not submitted any evidence on this point or provided any argument countering the agency's submissions. Considering that our previous decision only expressly ordered petitioner's retroactive placement in a "casual" position, and that it would be speculative to conclude that petitioner would have secured a transitional position, the Commission finds that the agency had no obligation to provide petitioner with additional backpay reflecting a subsequent appointment to a transitional or PTF position.

Petitioner has also argued that she is entitled to a payment for overtime work she would have received had she not been discriminated against. In this instance, the Commission finds petitioner's argument has merit as the documentation submitted by the agency clearly indicates that no payment was made to reflect any overtime petitioner would have worked during her two casual appointments. The Commission has held that backpay should include all forms of compensation and must reflect fluctuations in working time, overtime rates, penalty overtime, Sunday premium and night work and other changing rates of pay to which petitioner would have been entitled but for the discrimination. See Dale R. Allen v. Department of Air Force, EEOC Petition No. 04940006 (May 31, 1996). Therefore, the Commission will order the agency to calculate the average overtime compensation provided casual employees in the Ukiah Post Office during the period in question and immediately issue petitioner an additional backpay award, with interest, reflecting that amount.

Finally, petitioner argues that the agency should have calculated interest payments from November 28, 1992, the date she asserts she would have started working had the discrimination not occurred, rather than the January 1, 1993 date used by the agency. The evidence of record indicates that petitioner had her pre-employment medical examination on November 25, 1992. Petitioner averred that she had been told to report to work on November 28, 1992, and did so, but was sent home because of some uncertainty about the results of her medical examination. By letter dated January 11, 1993, petitioner was informed by the agency that she had been found medically unqualified for the job. Based on this evidence, the Commission finds that it is more likely than not that petitioner would have started working on November 28, 1992, had she not been the victim of discrimination. Therefore, the Commission finds that the agency should use November 28, 1992, as the effective date of petitioner's first casual appointment and all backpay and interest calculations should start from that date.

CONCLUSION

Based upon a review of the record and the submissions of the parties, and for the foregoing reasons, the Commission finds that the agency has failed to fully comply with its previous order as set forth in EEOC Appeal No. 01943389 (October 24, 1995). The Commission therefore orders the agency to take the actions set forth in the Order below. There is no right of administrative appeal from this decision.

ORDER

1) The agency shall recalculate petitioner's gross backpay award to include the average amount of overtime compensation provided other casual employees working in the Ukiah Post Office for the 180 day period (two consecutive casual appointments) commencing on November 28, 1992. In addition, the agency shall recalculate the interest on backpay awarded petitioner to reflect the November 28, 1992 start date. The agency shall issue petitioner a check for any additional backpay due after the recalculation is accomplished within thirty (30) calendar days of the agency's receipt of this decision.

2) The agency shall reimburse petitioner for attorney's fees and costs incurred in connection with the filing of this petition for enforcement. The attorney shall submit a verified statement of fees to the agency within thirty (30) calendar days of the date of receipt of this decision. 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


1. A casual employee is a non-career employee with a limited term appointment of no more than ninety days. Employees can be appointed to consecutive casual (90-day) terms. A transitional employee has a non-career appointment which is indefinite in length, but can be terminated at the discretion of the agency. The record indicates that most transitional employees first serve two casual terms before appointment to transitional status. Transitional employees receive a higher hourly wage than casual employees.

2. The issue of compliance is limited to the agency's award of backpay and interest because appellant had already secured a career appointment with the agency by the time the Commission's order was issued.