Roger V. Holly, Petitioner, v. John E. Potter, Postmaster General, United States Postal Service, Agency. Petition No. 04A50003 Prior Petition No. 04990020 Appeal No. 01950220 Hearing Nos. 370-94-2318X, 370-94-2319X Agency Nos. 5E-1081-91, 5E-1167-92 November 2, 2005 DECISION ON A PETITION FOR ENFORCEMENT On October 25, 2004, the Equal Employment Opportunity Commission (EEOC or Commission) docketed a petition for enforcement to examine the enforcement of an order set forth in Roger V. Holly v. United States Postal Service, Petition No. 04990020 (March 26, 2001). This petition for enforcement is accepted by the Commission pursuant to 29 C.F.R. § 1614.503. For the reasons set forth herein, the petition is DENIED. BACKGROUND Petitioner filed a complaint in which he alleged that the agency discriminated against him on the basis of sex (male) and reprisal (prior EEO activity) in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq. The agency accepted a finding of discrimination rendered by an EEOC Administrative Judge (AJ), but declined to award all of the relief ordered by the AJ. Petitioner appealed the agency's decision to the Commission, and in Appeal No. 01950220, the Commission found that petitioner was not entitled to front pay, but was entitled to back pay. The matter was assigned to a Compliance Officer and was docketed as Compliance No. 06971923. Subsequently, the agency proffered proof of compliance, and the matter was closed. Thereafter, petitioner filed a petition for enforcement docketed as Petition No. 04990020. Petitioner contended, inter alia, that the agency had never provided him with a comprehensible explanation of how his back pay was calculated, and had failed to include overtime and step increases. The Commission granted the petition and ordered the agency to recalculate the amount of back pay owed to petitioner, and to provide him with a comprehensible explanation of its method of calculation. Roger V. Holly v. United States Postal Service, EEOC Petition No. 04990020 (March 26, 2001). The matter was assigned to a Compliance Officer and docketed as Compliance No. 06A10951 on March 28, 2001. Subsequently, the agency proffered proof of compliance, and the matter was closed. On October 25, 2004, petitioner submitted the petition for enforcement at issue. Petitioner contends that there remain unresolved tax issues related to the agency's payment of monies to the Office of Workers' Compensation Programs (OWCP) in connection with a workers' compensation claim related to the acts of discrimination underlying his EEO complaint. Petitioner further contends that the agency did not use an adequate number of comparative employees for purposes of calculating the overtime element of his back pay award. In this regard, it is noted that the agency was unable to locate the "overtime desired" list for the relevant time period (September 21, 1991 to April 5, 1995), and so solicited information from petitioner regarding comparatives for the calculation of overtime. Petitioner identified two employees, whose overtime work hours were averaged to calculate the amount of back overtime pay to which he was entitled. One worked 1724.63 hours, and the other worked 547 hours. The agency averaged their work hours and paid petitioner for 6.21 overtime hours per week for 183 weeks, less the amount of overtime back pay he had already been paid. Petitioner contends that there were some 35 to 40 employees in his unit at the time, and that all of their overtime hours should have been averaged. ANALYSIS and FINDINGS "Back pay" includes all forms of compensation, and reflects fluctuations in working time, overtime rates, penalty overtime, Sunday premium and night work, changing rates of pay, transfers, promotions, and privileges of employment. See Williams v. United States Postal Service, EEOC Appeal No. 01933156 (May 4, 1994), req. to reopen den., EEOC Request No. 05940680 (February 16, 1995). The Commission has held that the overtime component of a back pay award should be calculated based upon the average amount of overtime worked by similarly situated employees. See, e.g., Zito v. Social Security Administration, EEOC Petition No. 04970012 (October 9, 1997). In this case, information regarding the identity of employees on the "overtime desired" list for the relevant time frame was not available. The agency therefore solicited information from petitioner, who identified two comparative employees. The agency then proceeded, in accordance with Commission precedent, to calculate the average number of overtime hours worked by the employees as the basis for awarding complainant additional overtime back pay. There is no evidence of any wrong-doing or bad faith by the agency in this regard. While agencies are charged with preserving records related to known EEO claims or known potential EEO claims, 29 C.F.R. § 1602.14, in this case the claim was for sexual harassment, not denial of overtime. Further, complainant has not explained how he was disadvantaged by the agency's reliance on the information he provided. The two comparatives worked a widely different number of hours of overtime. While it is possible that averaging a greater number of employees' hours might result in an upward adjustment of the overtime back pay award, it might just as likely result in a downward adjustment. Under the circumstances of this case, the Commission is persuaded that the agency has complied with its previous orders with regard to overtime back pay. Regarding petitioner's contention that there remain unresolved tax issues related to the agency's payment of monies to OWCP in connection with a workers' compensation claim related to the discrimination, the Commission notes that it has no involvement in the payment of monies between the agency and OWCP, nor any authority over such matters. Petitioner is advised to address his concerns about this matter with OWCP. CONCLUSION Based upon the foregoing, the Petition for Enforcement is DENIED. COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S0900) 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. 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. If you file a request to reconsider and also file a civil action, 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