Petitioner, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Capital Metro Area), Agency. Petition No. 0420140007 Appeal No. 0120120923 Agency No. 4K-230-0209-08 DECISION ON A PETITION FOR ENFORCEMENT On February 21, 2014, the Equal Employment Opportunity Commission (EEOC or Commission) docketed a petition for enforcement to examine the enforcement of an Order set forth in Complainant v. U.S. Postal Serv., Appeal No. 0120120923 (May 3, 2013). The Commission accepts this petition for enforcement pursuant to 29 C.F.R. § 1614.503. Petitioner alleged that the Agency failed to fully comply with the Commission's order. BACKGROUND The record reflects the following chronology of events. In February 2000, Petitioner assumed the position of Customer Services Supervisor at the Milan Post Office in Norfolk, Virginia. However, in 2003, he became incapacitated due to a workplace incident and was unable to perform in his position from approximately September 16, 2003 to August 17, 2007. In 2007, Petitioner provided the Agency with documentation that he could return to work effective August 17, 2007, with certain medical restrictions. The Agency concluded that Petitioner could not perform the functions of his supervisory position and placed him on enforced leave. Petitioner filed an appeal on the issue of enforced leave to the Merit Systems Protection Board. The parties entered into a settlement agreement. As part of the settlement, Petitioner was placed into a Sales Services/Distribution Associate position effective March 29, 2008, with "saved pay" from his previous supervisory position. In January 2008, while the MSPB appeal was still pending, Petitioner filed a timely application with the Agency for an advertised position (Vacancy # CM-06937) of Labor Relations Specialist, EAS-17/19 in the Richmond, Virginia District. Petitioner was interviewed for the position and was notified by letter dated May 21, 2008, that he was not selected. Petitioner filed a formal EEO complaint. After the investigation of the complaint, Petitioner requested a hearing before an EEOC administrative Judge (AJ). Following a hearing, the AJ found that the Agency engaged in a per se violation of the Rehabilitation Act when it questioned Petitioner regarding his restrictions and when it instructed him to provide documentation clarifying his restrictions before extending him an offer of employment. However, the AJ further found that "the Agency's impermissible inquiry did not taint its selection process and was not a determinative cause of [Petitioner's] non-selection." Petitioner filed an appeal with the Commission's Office of Federal Operations (OFO) from the AJ's decision. In EEOC Appeal No. 0120120923 (May 3, 2013), the Commission found that the AJ erred in finding that the Agency's impermissible disability-related inquiry was not a determinative factor in Petitioner's non-selection. Based on this finding, OFO ordered the Agency to take the following actions: 1) The Agency will offer [Petitioner] the position of Labor Relations Specialist, EAS-17/19, Richmond, Virginia or a substantially equivalent position, within thirty (30) calendar days from the date this decision becomes final. [Petitioner] shall be given a minimum of 15 calendar days from receipt of this offer within which to accept or decline the offer. Failure to accept the offer within the 15-day period will be considered a declination of the offer, unless [Petitioner] can show that circumstances beyond his control prevented a response within the time limit. If the offer is accepted, appointment shall be retroactive to the date the selectee was hired. If the offer is declined, the back pay award will terminate as of the date of declination. 2) The Agency shall determine the appropriate amount of back pay, and other benefits due [Petitioner] pursuant to 29 C.F.R. 1614.501, no later than sixty (60) calendar days after the date the decision becomes final. The [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 benefits, the agency shall issue a check to [Petitioner] for the undisputed amount within sixty (60) calendar days of the date the Agency determines the amount it believes to be due. [Petitioner] may petition for enforcement or clarification of the amount in dispute. The petition for clarification of enforcement must be filed with the Compliance Officer, at the address referenced in the paragraph entitled "Implementation of the Commission's Decisions." 3) The Agency shall pay Complainant $45,212.70 in attorney's fees and costs, the amount awarded in the AJ's decision....[R]egarding the time Complainant's attorney expended on the appeal, Complainant's attorney as set forth below, shall submit a verified statement of the fees to the Agency within thirty (30) calendar days from the date the decision becomes final. Within sixty (60) calendar days of the date of the attorney's verified statement, the Agency shall determine payment of reasonable attorney's fees. The Order in EEOC Appeal No. 0120120923 also required the Agency to issue a final decision on the issue of compensatory damages, provide training to the selecting official, and post an order regarding the finding of discrimination.1 In correspondence to OFO dated July 12, 2013, Complainant's attorney asserted that the Agency still had not provided the relief ordered by the OFO in EEOC Appeal No. 0120120923. In correspondence to OFO dated March 17, 2014, Complainant's attorney acknowledged that the Agency issued a final decision with respect to compensatory damages.2 By correspondence to OFO dated April 2, 2014, Complainant's attorney asserted that Complainant was withdrawing his petition for enforcement pertaining to 8 hours of training for the selecting official and the posting requirements. The Agency filed its response to the petition for enforcement dated March 20, 2014. Therein, the Agency asserts that it has paid the ordered attorney's fees, issued a final decision on the issue of compensatory damages, posted the applicable notice and provided the required training. The Agency further asserts that it has substantially complied with the Commission's order regarding offering Complainant a substantially equivalent position and paying back pay. Regarding the job offer, the Agency states: [Petitioner] and his counsel rejected the Agency's offer to hire [him] starting at an EAS-17 level (his current level) and requiring him to successfully complete the career ladder 18-month training period as required for the position. The Agency has repeatedly indicated that following his successful completion of the 18-month training period, [Petitioner] would be promoted to the EAS-19 level and further receive a salary increase....The Agency has explained that the Labor Relations Specialist (Richmond EAS 17/19) position requires any candidate to successfully compete the 18-month training period at the Richmond Office. At the successful end of his/her training period, the candidate would be entitled to an automatic promotion to the EAS-19 level and an equivalent increase in salary." Regarding back pay, the Agency asserts it was delaying payment until Complainant was placed in the Labor Relations position. The Agency, however, "advised EEO Compliance and Appeals that because of [Petitioner's] failure to expressly accept either of the offers made to him ...they now consider [Petitioner] as having rejected to the offered position..." Job Offer and Back Pay We find that the Agency has failed to offer and retroactively place Complainant in a position to comply with the Commission's Order. Petitioner is entitled to make-whole relief for the Agency's discrimination. Albemarle Paper Co v. Moody, 442 U.S. 405 (1975). Such relief can include subsequent promotions that a complainant likely would have received if he had been selected for the position in the first instance. See generally Complainant v. Dep't of Defense, EEOC Request No. 05900807 (Sept. 11, 1990). In this regard, the Commission's case law distinguishes between competitive and career ladder promotions. See Complainant v. Dep't of Transportation, EEOC Request No. 05910201 (March 14, 1991) (Complainant not entitled to be placed at grade level beyond his career ladder, which he could only have obtained competitively, as such relief would be speculative). We note that the record reflects that this was a career ladder position to an EAS-19.3 Complainant's attorney asserts that Complainant should initially be retroactively placed in the Labor Relations Specialist position as an EAS-17 and then 18 months after that appointment date, Complainant shall be retroactively promoted to an EAS-19. We agree. We note that the Agency sent Complainant two job offers for the position at issue. However, it is unclear from the wording of these job offers when the Agency intended to promote Complainant to the EAS-19 level. We note that in response to the Agency's January 23, 2014 job offer, Complainant's attorney responded via letter dated February 6, 2014. Therein, Complainant's attorney stated that Complainant accepted the job offer to the extent it complied with the Commission's Order. Complainant's attorney also requested clarification of the job offer. Specifically, Complainant's attorney stated "please contact me immediately if the Agency's offer is not intended to be retroactive (that is, if the offer does not place [Petitioner] at the EAS-19 level effective 18 months from his retroactive appointment date)." The Agency in its correspondence to the Commission dated March 20, 2014, determined that it viewed Complainant's attorney's response to be a rejection of the job offer. We disagree. Rather, we find Complainant was simply seeking clarification of the Agency's job offers. In Complainant's February 6, 2014 letter to the Agency, Complainant's attorney asserts that Complainant's retroactive appointment date into the position in question should be May 21, 2008, rather than August 16, 2008. Specifically, Complainant's attorney asserts "I note for the record that the Agency's job offer letter indicates [Petitioner's] appointment is retroactive to August 16, 2008. I understand this to be because the selectee did not move into the Labor Relations Specialist position until that date. The selectee, however, was promoted to that position in May 21, 2008 date; she did not move into her position until August due to her prior management's delay in releasing her." The prior OFO order set forth that Complainant's appointment "shall be retroactive to the date the selectee was hired." Based on the foregoing, we find that Complainant's appointment should be retroactive to the date the selectee was officially placed in the position in question, that is, the official effective date listed on the selectee's Personnel Action form.4 We further find that the record is devoid of evidence that the Agency has paid Complainant any back pay. Thus, we order the Agency to pay Complainant back pay which corresponds to our finding that Complainant should be retroactively placed in the position as an EAS-17, and then 18 months from his retroactive appointment date, he should be retroactively promoted to the EAS-19 level. Based on the foregoing, we find that the Agency is not in compliance with the Commission's Order pertaining to offering Complainant the position of Labor Relations Specialist, EAS-17/19 and associated back pay. Attorney's Fees The record reflects that the Agency paid Complainant $45,212.70 in attorney's fees and costs as set forth in the Commission's Order. Complainant's attorney, however, asserts that he timely submitted to the Agency a verified statement of attorney's fees related to the appeal and that the Agency has not paid these fees.5 The record is devoid of evidence that the Agency paid Complainant reasonable attorney's fees related to the appeal. The Commission grants the petition for enforcement. The Commission finds that the Agency has not yet complied with the Commission's Order in its entirety and orders the Agency to comply as set forth in the decision herein and the Order below. ORDER To the extent the Agency has not already done so, the Agency shall undertake the following actions: 1. The Agency shall issue a revised offer to Petitioner for the position of Labor Relations Specialist, EAS-17/19, Richmond Virginia or a substantially equivalent position within thirty days of receipt of this decision. The revised job offer shall set forth the retroactive date of Petitioner's appointment (the date the selectee was hired)6 and clearly explain the terms of his career ladder advancement.7 Petitioner shall be given a minimum of fifteen (15) calendar days from receipt of the revised offer within which to accept or decline the offer. Failure to accept the offer within the 15-day period will be considered a declination of the offer, unless Petitioner can show that circumstances beyond his control prevented a response within the time limit. If the offer is declined, the back pay award will terminate as of the date of the declination. 2. The Agency shall determine the appropriate amount of back pay, and other benefits due Petitioner, pursuant to 29 C.F.R. § 1614.501, no later than sixty (60) calendar days from receipt of this decision. The 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. The Agency's determination shall be based on the fact that Petitioner would have received a retroactive career ladder promotion to the EAS-19 level 18 months from his retroactive appointment date to the Labor Relations Specialist position at issue. If there is a dispute regarding the exact amount of back pay and/or benefits, the Agency shall issue a check to Petitioner for the undisputed amount within sixty (60) calendar days of the date the Agency determines the amount it believes to be due. Petitioner may petition for enforcement or clarification of the amount in dispute. The petition for clarification or enforcement must be filed with the Compliance Officer, at the address referenced in the paragraph entitled "Implementation of the Commission's Decision." 3. To the extent it has not already done so, the Agency shall pay Petitioner reasonable attorney's fees for the time Petitioner's attorney expended on the appeal (EEOC Appeal No. 0120120923). Within 60 calendar days from the date this decision is received, the Agency shall determine the payment of reasonable attorney's fees associated with Petitioner's appeal. In addition, regarding the time Petitioner's attorney expended on the instant petition for enforcement, Petitioner's attorney, as set forth below, shall submit a verified statement of fees to the Agency, within thirty (30) calendar days from the date this decision becomes final. Within sixty (60) calendar days of the date of the attorney's verified statement, the Agency shall determine payment of reasonable attorney's fees. 4. The Agency is further directed to submit a report of compliance, as provided in the paragraph entitled "Implementation of the Commission's Decision." The report shall include supporting documentation including a copy of the Agency's revised job offer, documentation of the Agency's calculation of back pay and other benefits due Complainant, including evidence that the corrective action has been implemented. ATTORNEY'S FEES (H0610) 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 petition for enforcement. 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. IMPLEMENTATION OF THE COMMISSION'S DECISION (K0610) 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 77960, Washington, DC 20013. 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. COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (R0610) 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 (Z0610) 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 from the Court that the Court appoint an attorney to represent you and that the Court also 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 with the Court 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 February 19, 2015 Date 1 These matters are not at issue in the instant Petition for Enforcement. 2 Complainant filed an appeal with respect to the Agency's final decision regarding compensatory damages and this matter has been docketed as EEOC Appeal No. 0120140548 which is currently pending before the Commission. 3 Commission records for EEOC Appeal No. 0120120923 contain a copy of the vacancy announcement for the position at issue (Vacancy No. CM-06937). The vacancy announcement provides, in pertinent part, that "[t]his is a career ladder program position...If filled at EAS-17, the successful applicant will be eligible for non-competitive promotion to EAS-19 after 18 months." 4 The record does not contain a copy of the initial selectee's Personnel Action form. 5 The record does not contain a copy of this verified statement. 6 As set forth above, the retroactive appointment date is the official effective date the selectee was placed in the position, i.e. as set forth in the selectee's Personnel Action form. 7 The information regarding the career ladder advancement must be consistent with this decision. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 0420140007 U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 2 0420140007