Sandra Kretschmar v. Department of the Navy 04A40044 March 25, 2005 . Sandra Kretschmar, Petitioner, v. Hansford T. Johnson, Acting Secretary, Department of the Navy, Agency. Petition No. 04A40044 Petition No. 04A20032 Request No. 05990685 Appeal No. 01961851 DECISION ON SECOND PETITION FOR ENFORCEMENT On September 21, 2004, the Equal Employment Opportunity Commission (EEOC or Commission) docketed a petition for enforcement to examine the enforcement of an order set forth in Sandra Kretschmar v. Department of the Navy, EEOC Petition No. 04A20032 (November 16, 2000).<1> This second petition for enforcement, is timely, and is accepted by the Commission pursuant to 29 C.F.R. § 1614.503.<2> The Commission previously found that: (1) petitioner was subjected to a hostile work environment because of her gender (female); (2) petitioner was subjected to discrimination on the basis of gender (female) when she was removed from her position as a Warehouse Worker, WG-4; and (3) petitioner was retaliated against when her desk was moved, her personal belongings were missing, and her co-workers treated her differently the day after she filed her EEO complaint. Sandra Kretschmar v. Department of the Navy, EEOC Appeal No. 01961851 (April 5, 1999), req. to recon. den., Request No. 05990685 (November 17, 2000). Petitioner previously sought enforcement of EEOC Request No. 05990685 (November 17, 2000). On November 16, 2000, the Commission granted petitioner's petition for enforcement and issued the following order: Within thirty (30) days of receipt of this decision, the agency shall offer petitioner reinstatement to her position of Warehouse Worker, WG-4, at the probationary level, retroactive to September 10, 1990, including all pay raises that would have likely occurred.<3> Petitioner shall be placed in a different warehouse under the supervision of different supervisory officials in order to insure that the hostile environment will not recur. The offer shall be made in writing. Petitioner shall have 15 days from receipt of the offer to accept or decline the offer. Failure to accept the offer within 15 days will be considered a declination of the offer, unless the individual can show that circumstances beyond her control prevented a response within the time limit. Within thirty (30) days of receipt of this decision, the agency shall award petitioner back pay, interest, and all other benefits she would have received absent discrimination from September 10, 1990 until the date of reinstatement or declination of the offer of reinstatement. 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 other benefits, the agency shall issue a check to petitioner for the undisputed amount it believes to be due. The agency shall award petitioner a sum equal to the back pay she would have received computed in the manner prescribed by 5 C.F.R. §550.805, from September 10, 1990 until the date of reinstatement or the date the offer of reinstatement is declined. Interest on back pay shall be included in the back pay computation. The agency shall provide training in the obligations and duties imposed by Title VII to the responsible management officials identified in her Petition for Enforcement with the initials RW, AH and CH. The agency shall pay petitioner reasonable attorneys fees and costs associated with the representation of petitioner's efforts to obtain the agency's compliance with the order in Sandra Kretschmar v. Department of the Navy, EEOC Request No. 05990685 (November 16, 2000), including the present Petition for Enforcement. See Sandra Kretschmar v. Department of the Navy, EEOC Petition No. 04A20032 (November 16, 2000). The present matter was assigned to a Compliance Officer and docketed as Compliance No. 06A31288 on September 4, 2003. On June 19, 2004, petitioner submitted the present petition for enforcement. Petitioner contends that the agency: (1) failed to offer her a permanent position as outlined in the Commission's previous order; (2) has not fully reimbursed petitioner's costs, with interest; (3) has not trained RW, AH and CH; (4) has not fully reimbursed petitioner's back pay, interest and benefits<4>; (5) has failed to provide petitioner with an adequate computation of back pay, including the one year of back pay that was reimbursed by the agency in 2001; and (6) failed to retroactively provide petitioner with employee awards. Petitioner also seeks compensatory and punitive damages to remedy the emotional pain and suffering caused by the agency's failure to comply with the Commission's order. On March 7, 2005, the agency submitted its "Final Compliance Report" which asserts that it has fully complied with the Commission's order. ANALYSIS AND FINDINGS 1. Offer of Reinstatement Our previous order requires the agency to offer petitioner reinstatement to her former position of Warehouse Worker at the appropriate grade level that petitioner would have occupied had she not been discriminated against. While petitioner's argument is not completely clear, she seems to claim that the agency never offered her a permanent position. According to petitioner, the position she was placed into, Material Expediter, turned out not to be a real position, with actual job duties. After petitioner complained, the agency allegedly placed her into a temporary detail as a purchasing agent. In addition, petitioner claims that the purchasing agent detail is part of a reduction-in-force (RIF) that is scheduled to occur in April 2005. Petitioner asserts that when the RIF is enforced in April 2005, she will revert back to a non-existent position without any job duties. In addition, petitioner asserts that her salary is incorrect. In its Final Compliance Report, the agency states and the record shows that on November 10, 2003, petitioner accepted a the position of Material Expediter, WG-6901-5, effective January 5, 2004. The agency explained that position of Warehouse Worker no longer exists. Documentary evidence provided by the agency shows that on January 5, 2004, petitioner was reinstated at the Grade 5, Step 5 pay level. The records also show that initially, petitioner received basic pay in the amount of $15.55 per hour. On May 25, 2004, the agency adjusted petitioner's basic pay to $16.27, retroactive to January 5, 2004. The agency also provided the appropriate wage-grade salaries for the relevant time period and location which show that $16.27 is the correct basic pay for Grade 5, Step 5. The record also shows that effective January 23, 2005, petitioner was temporarily promoted to the position of Purchasing Agent GS-1105, GS-6, Step 9. As result, petitioner's salary was adjusted to $41,003.00. While it appears that petitioner received the correct pay for the positions she has occupied, the agency, nevertheless, fails to address petitioner's allegation that the position of Material Expediter, WG-6901-5 fails to have any real duties. Accordingly, we find that the agency has once again failed to comply with our order with respect to reinstatement. We remind the agency that if the position of Material Expediter, at the appropriate level, is not available, or does not actually exist, it is obligated to offer petitioner a substantially equivalent position. The Commission has consistently held that a substantially equivalent position is one that is similar in duties, responsibilities, and location (reasonable commuting distance) of the position which complainant originally worked. See Spicer v. Department of the Interior, Petition No. 04980007 (September 24, 1998); Patterson v. Department of Agriculture, EEOC Request No. 05940079 (October 21, 1994). We note that the burden is on the agency to establish that the position offered to petitioner is in fact substantially equivalent to the position lost. Rai v. Department of the Interior, EEOC Appeal No. 01901186 (May 17, 1990). See also, Day v. United States Postal Service, EEOC Petition No. 04A20012 (August 19, 2002). 2. Attorney's Fees and Costs The Commission may award a petitioner reasonable attorney's fees and other costs incurred in the processing of a complaint regarding allegations of discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq. 29 C.F.R. § 1614.501(e). While there is a strong presumption that a complainant who prevails in whole or in part on a claim of discrimination is entitled to an award of attorney's fees and costs, in order to be entitled to attorney's fees and costs, a complainant's attorney must first submit a verified statement of attorney's fees (including expert witness fees) and other costs, as appropriate, to the agency within thirty (30) days of receipt of the decision and must submit a copy of the statement to the agency. 29 C.F.R. § 1614.501(e)(2)(i). Petitioner vaguely references unpaid attorneys fees and lists numerous alleged unreimbursed costs,<5> yet fails to submit evidence to show that a verified attorney's fee petition was timely submitted to the agency or that her current claims were included in a timely submitted fee petition.<6> Accordingly, we deny petitioner's petition with respect to this issue. 3. Training of Responsible Management Officials In the Commission's previous decision, since the agency failed to respond to petitioner's claims, we ordered the agency to train RW, AH, and CH in their obligations under Title VII. In response to the present petition for enforcement, the agency asserts that only petitioner's former supervisor (GW) was responsible for violating Title VII. Accordingly, the agency asserts that there is only one agency official responsible for the discriminatory/retaliatory acts. The agency also provides an itemization of the training that GW has received between October 1996 and August 2003. While it appears that GW received sufficient Title VII training, we nevertheless find that the agency has failed to comply with our previous order that specifically instructed the agency to provide Title VII training to RW, AH and CH. Despite the agency's efforts, the Commission has no authority to modify a previous order in a Petition for Enforcement. See Kloock v. United States Postal Service, EEOC Petition No. 04A40012 (June 16, 2004). Accordingly, we grant the petitioner's petitioner for enforcement with respect to this issue. 4. Back Pay Award In our previous decision, we ordered the agency to award petitioner back pay, interest, and all other benefits she would have received absent discrimination from September 10, 1990 until the date of reinstatement or declination of the offer of reinstatement. Petitioner again argues that the agency failed to pay the appropriate back pay award. The undisputed evidence shows that petitioner was initially paid a sum of $42,909.69 on or about April 21, 2001 for back pay and interest. The undisputed record also shows that the agency paid petitioner an additional sum of $510,958.00 on or about September 10, 2004, for back pay and interest. Overtime and Pay Increases Back pay "includes all forms of compensation, and reflects fluctuations in working time, overtime rates<7>, penalty overtime, Sunday premium and night work, changing rates of pay, transfers, promotions, and privileges of employment. See Williams v. U.S. Postal Service, EEOC Appeal No. 01933156 (May 4, 1994), req. to reopen den., EEOC Request No. 05940680 (February 16, 1995). Accordingly, when the agency calculated the back pay owed to petitioner, it should have included such elements. The information provided by the agency to the Commission shows that petitioner's back pay was calculated at a straight 40 hours per week. There is no indication that overtime payments were considered. Further, although the agency provides a breakdown of "hourly rate adjustments" it fails to explain the adjustments. It is impossible to determine from the agency's documentation the extent to which petitioner received pay increases related to cost-of-living adjustments and step-increases. See Holly v. United States Postal Service, EEOC Petition No. 04990020 (March 26, 2001). Accordingly, we find that the agency has failed to comply with our previous order with respect to this issue. Retirement Deductions Petitioner also contends that her retirement deductions were not taxed deferred, nor correctly calculated. The Commission has held that make whole relief requires the agency to make retroactive tax-deferred contributions to the petitioner's retirement account for the relevant period. Ballentine v. TVA, EEOC Appeal No. 01976157 (August 22, 2001); Fiene v. United States Postal Service, EEOC Petition No. 04920009 (September 3, 1992). Thus, to the extent petitioner would have received agency contributions to a retirement fund as a component of her salary, she is entitled to have her retirement benefits adjusted as part of her back pay award, including sums which the account would have earned during the relevant period. Hall v. Department of Justice, EEOC Appeal No. 01A00528 (June 1, 2000); Howgate v. United States Postal Service, EEOC Petition No. 04990031 (February 4, 2000). Consequently, the agency should have provided its calculations of the amount of contributions to the agency's retirement system that both it and petitioner would have made during her absence, as well as the earnings which would have accrued. However, the agency merely stated that the total amount of petitioner's "retirement deductions" is $2,474.89 and the total "TSP contribution" is $9,280.83.<8> It remains unclear whether petitioner was given the opportunity to elect to make retroactive, tax deferred contributions in the amount which she could have contributed during the entire back pay period. Moreover, the agency failed to submit information regarding the amount of contributions it would have made during the back pay period and there is no evidence that the agency calculated the earnings which would have accrued on such contributions. Accordingly, the Commission finds that the agency denied petitioner "make whole" relief when it failed to (1) permit petitioner to elect to make retroactive tax deferred contributions; (2) contribute retroactively to her retirement account; and (3) adjust the account for the earnings which would have accrued during petitioner's absence. Ballentine v. TVA, EEOC Appeal No. 01976157 (August 22, 2001). Annual and Sick Leave The record shows that on February 2, 2005, the agency reimbursed petitioner's annual and sick leave. The documentary evidence shows that petitioner's sick leave balance was readjusted to 913 hours and her annual leave balance was readjusted to 1879 hours. In addition, pursuant to 5 C.F.R. § 550.805(g)(1), the agency asserts that it has placed petitioner's annual leave in a separate account and that she has until January 8, 2014 to use such leave. Accordingly, without determining whether or not petitioner received the correct amount of leave, it appears as though the agency has complied with the Commission's previous order with respect to this issue. We note that petitioner also argues that she is entitled to interest on the restored leave. We disagree. Since petitioner chose to be reinstated as an employee, the agency is required to restore her annual and sick leave, rather than paying petitioner the value of her leave. If petitioner had not returned to the agency, she would have been entitled to the cash value of her lost annual leave, plus interest. Length of Service and Other Employee Awards Petitioner asserts that the agency failed to retroactively issue her "Length of Service" awards and other employee awards that she would have received absent being discriminated against. The agency has failed to respond to this claim. To the extent that similarly situated employees received such awards, petitioner should also receive such awards. Accordingly, we grant the petition for enforcement with respect to this issue. See Blum v. Department of the Navy, EEOC Appeal No. 01912547 (August 29, 1991); Bell v. Department of the Navy, EEOC Appeal No.01942904 (September 14, 1995). 1099 Issued on Interest Payment Petitioner claims that the IRS Form 1099 should be corrected since the interest paid on back pay was "compensatory" in nature and no withholdings were taken from this portion of the award. Accordingly, petitioner argues that it should not be classified as wages. The Commission declines to address the tax consequences to either the agency or petitioner regarding the agency's interest payment. See Stringfellow v. United States Postal Service, EEOC Appeal No. 01A13898 (July 25, 2002); Gaughan v. Department of the Treasury, EEOC Request No. 05920163 (July 9, 1992). 5. Compensatory Damages Petitioner seeks pecuniary<9> and non-pecuniary compensatory damages to remedy the pain and suffering she has endured due to the agency's repeated failure to comply with the Commission's final order (i.e., Kretschmar v. Department of Navy, EEOC Request No. 05990685 (November 17, 2000). Commission has held that a complainant may not recover compensatory damages based on the stress associated with prosecuting an EEO complaint or for remedying how an agency litigates an EEO complaint. Rountree v. Department of Agriculture, EEOC No. 01941906 req. den. 05950919 (February 15, 1996). Accordingly, we deny petitioner's petition with respect to this matter. 6. Sanctions Petitioner is seeking an award of punitive damages to sanction the agency's prolonged failure to comply with the Commission's final decision. Petitioner's claim for punitive damages must be rejected because punitive damages, although available against a private sector employer, are not available against a government or government agency such as the United States Department of the Navy. Section 102 of the Civil Rights Act of 1991, 42 U.S.C. §1981(A)(b)(1). However, the Commission is not without recourse in the face of recalcitrance. The Commission has the inherent power to control and prevent abuse of its orders, processes and procedures. The Commission can and will impose sanctions for agency malfeasance. See Byrd v. Department of Agriculture, EEOC Petition No. 04980004 (December 12, 1997); Turner v. Department of the Interior, EEOC Petition No. 04980037 (August 5, 1999). Further, should the agency fail to comply with the actions mandated by the Order set forth below, the Commission is expressly authorized to issue a "show cause" notice to the Secretary of the agency, and can require the Secretary to appear in person before the Commission to explain the agency's continuing failure to comply. 29 C.F.R. § 1614.503(e). Continuing failure to comply with the Order of the Commission can also result in this case being certified to the Office of Special Counsel for enforcement action. 29 C.F.R.§1614.503(f). Although we do not order sanctions at this time, we deem it appropriate to award petitioner interest from January 16, 2001 (i.e., 60 days after the agency received a copy of the Commission's decision in Request No. 05990685), until such time as the agency pays petitioner the balance of the back pay the Commission ordered it to pay petitioner pursuant to its January 16, 2001 decision. We remind the agency to include in its compliance report a detailed explanation and documentation in support of each aspect of compliance as set forth below. CONCLUSION Based upon a review of the record, and for the foregoing reasons, the Commission grants, in part, the petitioner's petition for enforcement of the order in Sandra Kretschmar v. Department of the Navy, EEOC Petition No. 04A20032 (September 4, 2003). The agency shall take the actions set forth below. ORDER The agency is ORDERED to take the following remedial action: 1. Within thirty (30) days of receipt of this decision, the agency shall offer petitioner reinstatement to her position of Warehouse Worker, WG-4, or a substantially equivalent position, retroactive to September 10, 1990.<10> Petitioner shall be placed in a different warehouse under the supervision of different supervisory officials in order to insure that the hostile environment will not recur. The offer shall be made in writing and include a written position description. Petitioner shall have 15 days from receipt of the offer to accept or decline the offer. Failure to accept the offer within 15 days will be considered a declination of the offer, unless the individual can show that circumstances beyond her control prevented a response within the time limit. 2. Within thirty (30) days of receipt of this decision, the agency shall award petitioner back pay, interest, and all other benefits<11> she would have received, absent discrimination, from September 10, 1990 until the date of reinstatement or declination of the offer of reinstatement. 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 other benefits, the agency shall issue a check to petitioner for the undisputed amount it believes to be due. 3. The agency shall award petitioner a sum equal to the back pay she would have received computed in the manner prescribed by 5 C.F.R. §550.805, from September 10, 1990 until the date of reinstatement or the date the offer of reinstatement is declined. Interest on back pay shall be included in the back pay computation. 4. The agency shall provide training in the obligations and duties imposed by Title VII to the responsible management officials identified in her Petition for Enforcement with the initials RW, AH and CH. 5. The agency shall pay petitioner reasonable attorneys fees and costs associated with the representation of petitioner's efforts to obtain the agency's compliance with the order in Sandra Kretschmar v. Department of the Navy, EEOC Petition No. 04A20032 (September 4, 2003), including the present Petition for Enforcement. 6. The agency shall pay petitioner interest on the total unpaid back pay balance beginning from January 16, 2001 (i.e., 60 days after the agency received a copy of the Commission's decision in Request No. 05990685), until such time as the agency pays petitioner the correct balance back pay. 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 detailed explanations for each award and supporting documentation, and the agency must send a copy of all submissions to the petitioner.<12> If the agency does not comply with the Commission's order, the petitioner may petition the Commission for enforcement of the order. 29 C.F.R. § 1614.503(a). The petitioner 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 petitioner 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 petitioner 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 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. STATEMENT OF PETITIONER'S RIGHTS - ON PETITION FOR ENFORCEMENT PETITIONER'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 March 25, 2005 __________________ Date 1 Petitioner submitted several amendments to this petition between December 2004 and February 2005. 2 Previously, on April 22, 2002, the EEOC docketed a Petition for Enforcement (PFE) to examine the order set forth in Sandra Kretschmar v. Department of the Navy, EEOC Request No. 05990685 (November 16, 2000). The Commission granted this PFE on September 4, 2003. 3 While petitioner's position was a WG-4 at the time of the discrimination, her back pay award and reinstatement shall include any pay raises and/or promotions that would have likely occurred had she been in her position of Warehouse Worker since September 10, 1990. 4 Specifically, petitioner seeks restoration of full back wages, retirement benefits, sick and annual leave, and overtime/differential wages. 5 Petitioner asserts that the agency has not reimbersed the following costs incurred in the processing of her complaint: (1) Payment of $700.00 to Leslie and Associates, Inc. dated November 15, 2004; (2) Charges for certified mail to the agency and the Commission between March 8, 2001 and May 13, 2002 in the amount of $37.77; (3) charges related to copying/faxing documents on March 8, 2001, March 15, 2001, May 11, 2002 and May 23, 2002 in the amount of $32.27; (4) portion of the costs of office supplies including computer, printer and computer discs purchased in October 2004 in the amount of $156.65; and (5) approximately $7,000.00 in costs associated with gas and mileage over a 9-year period. 6 We note the agency argues that, on August 13, 2004, it paid petitioner's attorney an additional $4,000.00 for fees and costs incurred during the processing of general compliance issues and petition for enforcement. The agency asserts that the payment of $4,000.00 was a final settlement of outstanding attorneys fees and costs. 7 We note that overtime calculations should be based on the average amount of overtime actually worked by employees similarly situated to petitioner) See Cook v. United States Postal Service, EEOC Request No. 05A21089 (November 14, 2002); Hanns v. United States Postal Service, EEOC Petition No. 04960030 (September 18, 1997). 8 The agency also includes a "Master Pay History" worksheet in support its payment of back pay. However, this worksheet does not sufficiently explain petitioner's reimbursed retirement benefits. 9 E.g., payment of $60.00 in November 2004 to "Psycare" for Post Traumatic Syndrome. 10 While petitioner's position was a WG-4 at the time of the discrimination, her back pay award and reinstatement shall include any pay raises and/or promotions that would have likely occurred had she been in her position of Warehouse Worker since September 10, 1990. 11 Back pay includes, but is not limited to, all cost-of-living increases, grade and step increases, promotions, overtime and pay differential, retirement benefits, leave benefits, and service awards. 12 The Compliance Report should include, but is not limited to: (1) a written job offer; (2) a written job description; (3) written documentation proving compliance with training; (4) back pay calculations including detailed accounting and explanation of cost-of-living and grade increases, overtime, pay differential, promotions, retirement benefits and adjustments, leave benefits, service awards and interest. This requirement also applies to the initial back pay award of $42,909.69 for petitioner's first year of back pay.