CARROLL D. PAULK, PETITIONER, v. JOHN E. POTTER, POSTMASTER GENERAL, UNITED STATES POSTAL SERVICE, (SOUTHEAST AREA), AGENCY. Petition No. 04A10026 Appeal No. 01970061 Hearing No. 310-96-5167X Agency No. 4-G-760-1302-95 DECISION ON A PETITION FOR ENFORCEMENT On March 19, 2001, the Equal Employment Opportunity Commission (EEOC or Commission) docketed a petition for enforcement to examine the enforcement of an order set forth in Carroll D. Paulk v. United States Postal Service, EEOC Appeal No. 01970061 (May 21, 1998). This petition for enforcement is accepted by the Commission pursuant to 29 C.F.R. § 1614.503. Petitioner alleged that the agency failed to fully comply with the Commission's order to award him back pay (with interest), offset by any earnings of the petitioner during the period subsequent to his termination. ISSUE The issue to be addressed is whether overtime earned by the petitioner during the period subsequent to his termination may be used to mitigate the amount of back pay owed to petitioner. BACKGROUND Petitioner filed a complaint in which he alleged that the agency discriminated against on the bases of sex (male) and disability (knee injury) when on or about August 4, 1995, he was terminated during his probationary period, in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq., and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. An EEOC Administrative Judge (AJ) found no discrimination based on sex, but that the agency had discriminated against petitioner on the basis of his disability. The agency then issued a final agency decision which accepted the AJ's finding of no sex discrimination but rejected the AJ's recommendation finding disability discrimination. In EEOC Appeal No. 01970061, the Commission affirmed that part of the FAD which found no discrimination based on sex, but reversed that part of the FAD which found no discrimination based on disability. See Paulk v. USPS, EEOC Appeal No. 01970061 (May 21, 1998). The Commission's order specified that the agency had to restore petitioner to a PTF position, award him back pay (with interest), offset by any earnings of the petitioner during the period subsequent to his termination. The order also specified that the agency shall conduct an investigation into compensatory damages owed to petitioner and take corrective, curative and preventative action to ensure that disability discrimination did not recur. Subsequently, the parties resolved the issue of compensatory damages in the instant case by means of a settlement agreement signed on January 21, 2000. That agreement provided for the agency to pay petitioner $27,500.00 in compensatory damages. On March 16, 2001, petitioner submitted the herein petition for enforcement. Petitioner contends regarding the Commission's order to award him back pay that the agency incorrectly determined that overtime worked by petitioner should be considered in determining whether petitioner is entitled to back pay. Petitioner contends that the overtime worked by him should not be considered in determining back pay and that the back pay should be determined based upon the differences in the base rates of pay by the agency and the new job which petitioner was forced to accept when he was terminated by the agency. The agency has responded, contending that all sums actually earned by petitioner during the interim period should be considered in reducing back pay otherwise allowable, and that there is no evidence to show that petitioner's interim overtime earnings fall within the limited "moonlighting" exception. Further, because the amount petitioner earned during his period of separation from the agency exceeds what he would have earned with the agency had he not been terminated, the agency contends that back pay was fully mitigated. ANALYSIS AND FINDINGS Back pay for petitioner has been calculated by the agency at $91,032.47, plus interest for the period subsequent to petitioner's termination from the agency of August 5, 1995 through December 5, 1998. The agency calculates that during that same period, he earned $92,267.83 by working 65 to 80 hours per week at between $7.00 and $9.00 per hour. The agency acknowledged that petitioner worked between 35 and 40 hours of overtime each week. Petitioner's interim earnings exceeded the amount he would have earned if his employment with the agency had not been interrupted by his termination. The agency states that its Employee and Labor Relations Manual provides that any amount which an employee earned in new employment to replace postal service employment must be determined and offset against the amount of the reimbursement to which the petitioner would be entitled. The agency further states that this policy is consistent with 5 U.S.C. § 550.805(e)(1), which requires an agency to deduct any amounts earned by an employee from other employment undertaken to replace the employment from which the employee had been separated during the period covered by the corrective action. Typically, supplemental income earned by a petitioner in addition to their regular job has been referred to as "moonlighting" earnings. Courts addressing the moonlighting issue have indicated that if the plaintiff could have held both the supplemental job and the job he did not receive because of discrimination, the earnings from the supplemental job will not be used to reduce the back pay award. See Lilly v. City of Beckley, 797 F.2d 191 (4th Cir. 1986); Whatley v. Skaggs Cos., 707 F.2d 1129, 1139 (10th Cir. 1983) (where plaintiff could not have held both supplemental job and job he lost because of discrimination, moonlighting earnings are "interim earnings); Bing v. Roadway Express, Inc., 485 F.2d 441, 454 (5th Cir. 1973) (indicating that if plaintiff could have held both jobs, then supplementary job is not "interim," but assumes "permanent" nature). The Commission has found, however, that the victim of discrimination must receive back pay equal to what he would have would have earned in the employment lost through discrimination, less interim earnings in other employment. Back pay should include all forms of compensation. This includes overtime and any premium pay that would have been earned during the period the victim of discrimination was denied the employment. Allen v. Department of the Air Force, EEOC Petition No. 04940006 (May 31, 1996). In the instant case, the Commission's order specifically stated that the agency shall award [petitioner] back pay (with interest), offset by any earnings of the [petitioner] during the period subsequent to his termination. The Commission's order made no distinction between earnings during regular time and earnings from overtime, but stated that the back pay award should be offset by any earnings of petitioner during the interim period prior to his reinstatement by the agency. In addition, we agree with the agency's finding that there is nothing in the record to indicate that petitioner's interim overtime earnings fall within the moonlighting exception referenced above. In so finding, we note that petitioner's overtime earnings were earned from his working 65-80 hours per week in a position he acquired during the period subsequent to his termination from the agency, and thus petitioner could not have held both the supplemental job and the job he lost because of discrimination. As a result, we agree with the agency's finding that overtime pay earned by the petitioner during the period subsequent to his termination must be considered as part of the mitigation of a back pay award. Based upon our review of the record, we find the agency complied with paragraph 2 of the order when it offset the $91,032.47 in back pay petitioner was entitled to by the $92,267.83 in salary and overtime he earned during the period subsequent to his termination by the agency. Finally, we note that petitioner's counsel has apparently contended that the agency required petitioner to make retirement contributions to his retirement account for the back pay period in order to receive annual and sick leave which would have accrued during that period. We note that the agency's representative has stated that the agency did not require petitioner to make retirement contributions during the back pay period, subsequent to his termination from the agency. After consideration of the record, the Commission finds that complainant has failed to establish that the agency required him to make retirement contributions to his retirement account for the back pay period in order to receive annual and sick leave. CONCLUSION After reviewing the instant petition for enforcement, the agency's response, the previous decision, and the entire record, the Commission finds the agency to have fully complied with its order in Paulk v. USPS, EEOC Appeal No. 01970061 (May 21, 1998). Accordingly, the Commission denies petitioner's petition for enforcement. STATEMENT OF PETITIONER'S RIGHTS - ON PETITION FOR ENFORCEMENT PETITIONER'S RIGHT TO FILE A CIVIL ACTION (R0900) 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 Director Office of Federal Operations October 4, 2001