Valerie G. Morman v. Department of Defense 04A10006 July 31, 2002 . Valerie G. Morman, Petitioner, v. Donald H. Rumsfeld, Secretary, Department of Defense, (Defense Commissary Agency), Agency. Petition No. 04A10006 Appeal No. 01973349 Agency No. SAC-95-CA-0083-E Hearing No. 380-95-8147X DECISION ON A PETITION FOR ENFORCEMENT On August 24, 2000, the Equal Employment Opportunity Commission (EEOC or Commission) docketed a petition for enforcement to examine the enforcement of an order set forth in Valerie G. Morman v. Department of Defense, EEOC Appeal No. 01973349 (May 17, 2000). This petition for enforcement is accepted by the Commission pursuant to 29 C.F.R. § 1614.503. Petitioner filed a complaint in which she alleged that the agency discriminated against her on the bases of race (Alaskan Native) and in reprisal for prior EEO activity. Petitioner appealed the agency's final decision dismissing her complaint to the Commission. In EEOC Appeal No. 01973349, the Commission found that the agency discriminated against complainant on the bases of race and reprisal when: (1) her shift was changed; (2) she was issued a Letter of Instructions because of excessive absenteeism, and for not following procedures for requesting leave; and (3) subsequent to her resignation she was not allowed to withdraw her resignation. The matter was assigned to a compliance officer and docketed as Compliance No. 06A01177 on May 18, 2000. On August 24, 2000, petitioner submitted the petition for enforcement at issue. Petitioner contends that the agency failed to fully comply with the Commission's order with respect to the following: (1) the agency failed to provide sufficient training in the area of race discrimination and reprisal; (2) the agency failed to properly reinstate complainant to a position that afforded her full-time work with full-time benefits; and (3) the agency failed to pay the appropriate back pay including benefits. Training The Commission's May 17, 2000 decision ordered the following with respect to training. To the extent it has not already done so, the agency shall take corrective, curative and preventive action to ensure that race and reprisal discrimination does not recur, including but not limited to providing training to the responsible official(s) at the Fort Richardson, Alaska, facility in the law against employment discrimination. ... In its Report of Compliance, the agency states the following. [T]he agency's Western/Pacific Region employees<1> have been provided with video tapes (to be shown at each commissary) on Equal Employment Opportunity subjects, including sexual harassment, other forms of discrimination, diversity and communication. On April 6, 2000, the Director, Western/Pacific Region, issued an all-employee memorandum entitled “Equal Opportunity and the Prevention of Sexual Harassment” in which he called upon all employees to maintain a work environment free of discrimination. A brochure entitled, “Preventing Sexual Harassment - A Fact Sheet for Employees” was distributed to every employee in the region in July 2000. The Region's Equal Employment Manager will make visits on EEO subjects. Additionally, all supervisors and work leaders are required to attend a 3-day, 24-hour course entitled, “Managing your EEO Responsibilities” that is part of 120 hours required leadership training. We find that while the agency does not indicate specifically whether the training listed above includes training on race discrimination and reprisal, it reasonable to assume that a good portion of it does. Specifically, we find the 3-day course entitled “Managing your EEO Responsibilities” sufficient in providing the appropriate training required in the Commission's order. Accordingly, we find that the agency has complied with our order with respect to training. Reinstatement and Backpay Our May 17, 2000 order states the following with respect to reinstatement and back pay. The agency shall immediately reinstate complainant to her Cashier position or to a comparable position for which she qualifies and which she would accept, and, prior to the reinstatement, the agency shall inquire from the complainant's physicians with respect to her job. The agency is further ordered to compensate complainant for all wages lost as a result of its discriminatory refusal to accept complainant's request to withdraw her resignation. Complainant was reinstated on May 9, 1999.<2> The record indicates that from June 28, 1993 to May 9, 1999, complainant was receiving worker's compensation benefits and did not work. Complainant claims that she could have been reinstated earlier if the agency reasonably accommodated her disabilities prior to May 9, 1999. Moreover, complainant asserts that although she was not working 40 hours per week upon her reinstatement, she is still entitled to all benefits associated with full-time work.<3> The agency claims that complainant was unable to work until May 9, 1999. Moreover, the agency asserts that complainant was reinstated to the position of Cashier, GS-2091-03, at the Fort Richardson Commissary at the recommendation and approval of her attending physician and it was intended that she would gradually increase from 16 to 30 or more hours per week at her physician's direction and as her physical condition improved. However, as of the date of the Report of Compliance (August 15, 2000), the agency stated that, at complainant's own insistence, she is still working the lesser number of hours (i.e., 16 hours per week). To the extent that complainant asserts that she should have been reinstated to a full-time position, with full-time benefits, the record is devoid of evidence indicating that complainant was able to work a full-time schedule at any relevant time. Accordingly, we shall remand this issue to the agency to compile evidence and make a determination with respect to this issue. With respect to complainant's assertion that she should have been reinstated earlier than May 9, 1999, we find that this issue cannot be considered by the Commission in a petition for enforcement since it seeks to obtain a remedy not provided in the Commission's May 17, 2000 order. With respect to backpay, it appears as though complainant is arguing that despite the fact that she was receiving OWCP payments during the period from June 28, 1993 through May 9, 1999 (“backpay period”) she, nevertheless, should be entitled to backpay and benefits from the agency. The agency states that complainant was placed on worker's compensation under the Federal Employees Compensation Act on June 28, 1993 for a work place injury and has continued to receive all benefits due her, including pay, from that organization to the present day. The agency asserts that complainant received all the pay and benefits that she was entitled to for the period June 28, 1993 through May 9, 1999 (“backpay period”). It is well settled that worker's compensation awards do not preclude recoveries for discrimination, such as backpay, where such awards do not result in double recovery. Sands v. Department of Defense, EEOC Petition 04990001 (February 25, 2001). An OWCP award that is meant to compensate for lost wages should be deducted from the total amount of backpay to which petitioner is entitled in order to avoid double wage recovery, but the portion of the OWCP award that is paid as reparation for physical injuries should not be deducted from backpay because it is unrelated to wages earned. Id. citing Ferguson v. United States Postal Service, EEOC Request 05880848 (May 8, 1990).<4> Accordingly, in order to determine the proper amount of back pay that complainant is entitled to the agency must determined what portion of complainant's OWCP benefits applied to back pay, leave and other benefits and what portion of complainant's OWCP benefits applied to reparation for her physical injuries. The record is devoid of such information. Accordingly, we remand this matter to the agency to make such determination.<5> The agency should also note that if it can obtain and present persuasive evidence that complainant was not able to work during the back pay period, back pay would not be awarded. However, the agency has the burden of proof with respect to back pay. See Davis v. United States Postal Service, EEOC Petition No. 04900010 (November 29, 1990). Accordingly, for the reasons set forth herein above, this matter is AFFIRMED, in part and REMANDED, in part. ORDER Within 30 days of receipt of this order, the agency shall conduct a supplemental investigation which shall include the following actions: Determine, with specificity and supporting documentation, what portion of complainant's OWCP benefits applied to back pay, leave and other benefits and what portion of complainant's OWCP benefits applied to reparation for her physical injuries; For the purposes of back pay calculations, determine, with specificity and supporting documentation, whether or not complainant was unfit for duty at any time during the back pay period; Following its investigation regarding OWCP benefits, the agency shall recalculate its back pay award with specificity, including interest;<6> and Determine, with specificity and supporting documentation, whether or not complainant was physically able to be reinstated and/or requested reinstatement to a full-time position at any time. The agency shall complete its supplementation of the record within thirty (30) calender days of the date this decision becomes final and forward a copy of the supplemental record to petitioner for her comments thereon. Within sixty (60) calendar days of the date this decision becomes final, the agency shall forward to the Commission the information obtained during its supplemental investigation, as well as any comments from petitioner, for further review of its compliance with the Commission's prior Order. The agency is further directed to submit to the Compliance Officer, as referenced below, copies of the letters that transmit the evidence to petitioner and the supplemental investigation to the Commission; evidence that it has paid petitioner the back pay in question; and evidence that it has issued a decision addressing the matters herein. IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501) 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 complainant. If the agency does not comply with the Commission's order, the complainant may petition the Commission for enforcement of the order. 29 C.F.R. § 1614.503(a). The complainant 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, the complainant 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 the complainant 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 (H0900) If complainant 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. STATEMENT OF PETITIONER'S RIGHTS - PETITION FOR ENFORCEMENT COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (R0900) 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 (Z1199) 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: ______________________________ Carlton M. Hadden, Acting Director Office of Federal Operations July 31, 2002 __________________ Date 1 The agency explained that the training could not take place at the Fort Richardson Commissary since it is no longer in existence. Moreover, the agency noted that most of the employees from the Fort Richardson Commissary were transferred to the Western/Pacific facilities. 2 While unclear from the record, it appears as though complainant was reinstated prior to our May 17, 2000 decision as a result of a Merit Systems Protection Board (MSPB) appeal. 3 Since the Commission ordered complainant's reinstatement on May 17, 2000, complainant's argument that she should have been reinstated prior to that time is not a proper issue before us. The Commission can only enforce its order of May 17, 2000. However, as explained below, complainant's argument that she was fit for duty during the back pay period is relevant to the award of back pay. 4 We also note that complainant is not entitled to any leave or other benefits already restored under FECA. See Schultz v. USPS, EEOC Appeal No. 03980087 (October 14, 1999). 5 We remind the agency that failure to obtain evidence in support of its position may lead to an adverse inference in favor of complainant. 6 It is the agency's obligation to ensure that its back pay calculations are clear, supported in the record and in accordance with 29 C.F.R. § 1614.501 and 5 C.F.R. § 550.805.