U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Shanel G.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Great Lakes Area), Agency. Appeal No. 0120140468 Agency No. 4J481000611 DECISION Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission) after the Agency failed to timely issue a letter of determination regarding her notice that it had not complied with its October 23, 2012, final order. See 29 C.F.R. § 1614.504(a); and 29 C.F.R. § 1614.402(e). For the reasons that follow, we find that the Agency has not complied with its final order. ISSUE PRESENTED Whether Complainant established that the Agency did not credit a $40,376.94 payment that she made to the Department of Labor in May 2012 when determining the total amount of OWCP payments that should have been offset from her subsequent back pay award. BACKGROUND Complainant filed a complaint alleging that she was discriminated against based on disability and in retaliation when, on September 21, 2010, she was issued a Notice of Termination, effective October 5, 2010. After an investigation, she requested a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). After the hearing, on June 25, 2012, the AJ found that Complainant had been subjected to discrimination when she was denied a reasonable accommodation and ordered, among other remedies, that: [W]ithin sixty (60) calendar days of the date this decision becomes final, the Agency must award the Complainant back pay, with interest, from October 10, 2010 (when her contract would have been renewed and she had not been discriminated against) to the date when she is reinstated minus the payments she received from OWCP. The amount of hours used to calculate this back pay is the average that other transitional employees worked during this time which was over 40 hours but also within the Complainant's restrictions of a [sic] 45 hours per week. See Findings of Fact, Nos. 43, 44, 45 and 50. The Complainant should also be awarded all the annual leave that she would have accrued if she had been employed from October 10, 2010 to the date of her reinstatement. See Findings of Fact. No. 51. No other fringe benefits are awarded because transitional employees did not get other benefits. [Emphasis added.] The Agency issued a final order that adopted the AJ's finding of discrimination. Complainant was reinstated as of December 23, 2012. Consequently, the Agency calculated Complainant's back pay entitlement as follows: Lost wages, 10/10/2010 -12/23/2012 $112,050.91 OWCP compensation, 10/10/2010 -12/23/2012 $72.077.11 Subtotal $39,973.80 Annual leave compensation $4961.60 Total $44,935.40 Complainant agreed that the total amount of lost wages was $112,050.91. She, however, contends that the Agency was only entitled to an offset of the OWCP payments made to her from May 30, 2012 to December 23, 2012. Therefore, according to Complainant, her total amount of OWCP compensation was only $20,127.25. Her calculations are as follows: Lost wages, 10/10/2010 -12/23/2012 $112,050.91 OWCP compensation, 5/30/2012 -12/23/2012 $20,127.25 Subtotal $91,923.66 Consequently, she believes she is entitled to an additional sum of $46,988.26. The record indicates that, prior to filing her EEO complaint, Complainant was bitten by a dog while working, i.e., delivering the mail. Her injury resulted in a reduced range of motion in her right hip as well as sciatic nerve pain. This is why she requested the reasonable accommodation that was denied by the Agency and which resulted in the AJ finding discrimination. Complainant subsequently brought a third-party lawsuit against the dog's owner under the Federal Employees Compensation Act (FECA). While her EEO complaint was pending, Complainant reached a settlement in that case for $115,000. Pursuant to the distribution structure provided under the FECA, Complainant retained $35,326.03. Her attorneys received $38,329.50. The remainder, $40,376.94, was recouped by OWCP. According to Complainant, her OWCP wage replacement benefits computation records show that she paid back the sum of $40,376.94 to the Agency which was the entire balance of her OWCP benefits at that point. This payment of $40,376.94, she maintained, paid off the full balance of all OWCP benefits that had been paid out by the Postal Service up to May 29, 2012. In a letter dated May 29, 2012, following her payment, OWCP informed her that: Our records show that you obtained a recovery from the third party responsible for your injury and that you have made appropriate refund of monies paid to you on your behalf under the Federal Employee Compensation Act. Therefore, the third party aspect of your claim under the FECA is considered closed. After the May 29, 2012, payment, Complainant argued that her EEO case was still pending, and she was still out of work and collecting wage loss benefits; consequently, for the period of May 29, 2012 to December 24, 2012, her return to work date, Complainant believes the Agency is only entitled to offset what they paid to her for that period, i.e., $20,127.25. The record contains a February 7, 2013 statement made by the Agency's Labor Relations Specialist on the Agency's Back Pay Decision/Settlement Worksheet. She indicated that, "[t]he amount of $40,376.94 that was repaid was applied to total compensation paid . . .." Emphasis added. The record also contains the Agency representative's April 24, 2013, letter to Complainant's attorney. In the letter, he noted that "[u]sing historical case compensation data from the Department of Labor, the Postal Service determined that [Complainant] had been paid a total of $72,077.11 in OWCP compensation during the relevant period, which runs from October 10, 2010 until her reinstatement." The representative further wrote, in pertinent part, that: As you have noted, [Complainant's] lawsuit against the owner of the dog that attacked her yielded a settlement of $115,000. From that settlement, $40,376.94 was refunded to the Department of Labor pursuant to a Federal Employees Compensation Act (FECA) lien. This refund to the Department of Labor constitutes the tortious dog-owner's share of the compensation paid to [Complainant]. Accordingly, of the $72,077.11 paid through OWCP, $40,376.94 was paid by the dog-owner, and the Postal Service paid the remaining $31,700.17. Regardless of which party or parties paid [Complainant] she received a total of $72,077.11 in wage-loss compensation during the relevant time period, and the Postal Service is entitled to an offset in that amount. [Emphasis added.] On appeal, the Agency argues that Complainant is attempting to infer that her back pay award in the EEO complaint was somehow influenced by the settlement of her personal injury action, but that she offered no legal authority to advance this theory. The Agency's position is that Complainant received funds from three separate and unrelated sources. First, she received a $115,000 settlement in her personal injury lawsuit against the dog owner. Second, she received an award of $20,000 in compensatory damages in the instant EEO complaint, plus attorneys' fees, and full back pay, minus the amount of money she received through OWCP wage loss compensation. Finally, she received wage loss compensation from OWCP in an amount totaling approximately $72,000.00. ANALYSIS AND FINDINGS EEOC Regulation 29 C.F.R. § 1614.504(a) provides that if a complainant believes that an agency has failed to comply with a final decision, the complainant shall notify the EEO Director, in writing, of the alleged noncompliance within 30 days of when the complainant knew or should have known of the alleged noncompliance. Further 29 C.F.R. § 1614.504(b) provides that the agency shall resolve the matter and respond to the complainant in writing. If the agency does not respond to the complainant, in writing, or if the complainant is not satisfied with the agency's attempt to resolve the matter, the complainant may appeal to the Commission for a determination as to whether the agency has complied with the terms of the decision. In the instant case, Complainant agrees that to the extent she received monies from the OWCP, the Agency has the right to offset those amounts from her back-pay award. The issue before us, however, is whether the $40,376.94 payment Complainant made, in May 2012, should have been credited towards the amount of OWCP compensation that she owed, i.e., $72.077.11. We find that the record supports Complainant's position that she already reimbursed the Agency, in part, for the OWCP wage replacement benefits that were made from October 2010 up until May 2012, albeit prior to the AJ's June 25, 2012 order. In this regard, we note the February 7, 2013 statement made by the Agency's Labor Relations Specialist that, "[t]he amount of $40,376.94 that was repaid was applied to total compensation paid . . . ." Unlike the Agency's argument on appeal, this admission indicates that the money from the settlement of Complainant's personal injury action that Complainant paid to the Department of Labor was applied towards the OWCP compensation she received. Consequently, it should have been credited to Complainant. Likewise, the Agency's representative clearly stated that Complainant's $40,376.94 refund covered the dog-owner's share of the compensation paid to Complainant in wage-loss compensation. According to the representative, the Agency only paid $31,700.17 towards Complainant's OWCP wage-loss compensation. In the instant case, we find that "make whole" relief requires that the Agency credit the amount Complainant already paid towards OWCP, i.e., $40,376.94, and return that amount to Complainant. If we were to find otherwise, the Agency would be able to retain money for which no reimbursement to OWCP was required.2 CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we REMAND this matter to the Agency for further processing in accordance with this decision and the ORDER below. ORDER The Agency, to the extent it is has not already done so, is ordered to take the following remedial actions within one hundred and twenty (120) calendar days of the date this decision is: Pay Complainant a total of $85,312.34 as back-pay, with interest, from October 10, 2010 to the date this decision becomes final.3 A copy of a report of compliance shall be sent to the Compliance Officer as referenced below. ATTORNEY'S FEES (H0610) 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. IMPLEMENTATION OF THE COMMISSIONS DECISION (K0618) Under 29 C.F.R. § 1614.405(c) and § 1614.502, compliance with the Commission's corrective action is mandatory. Within seven (7) calendar days of the completion of each ordered corrective action, the Agency shall submit via the Federal Sector EEO Portal (FedSEP) supporting documents in the digital format required by the Commission, referencing the compliance docket number under which compliance was being monitored. Once all compliance is complete, the Agency shall submit via FedSEP a final compliance report in the digital format required by the Commission. See 29 C.F.R. § 1614.403(g). The Agency's final report must contain supporting documentation when previously not uploaded, and the Agency must send a copy of all submissions to the Complainant and his/her representative. 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. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0617) The Commission may, in its discretion, reconsider the decision in this case if the Complainant or the Agency submits a written request containing arguments or evidence which tend to establish that: 1. The appellate decision involved a clearly erroneous interpretation of material fact or law; or 2. The appellate decision will have a substantial impact on the policies, practices, or operations of the Agency. Requests to reconsider, with supporting statement or brief, must be filed with the Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. A party shall have twenty (20) calendar days of receipt of another party's timely request for reconsideration in which to submit a brief or statement in opposition. See 29 C.F.R. § 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9 § VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. Complainant's request may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, the request to reconsider shall be deemed timely filed if it is received by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. The agency's request must be submitted in digital format via the EEOC's Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). The request or opposition must also include proof of service on the other party. Failure to file within the time period will result in dismissal of your request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted with your request for reconsideration. The Commission will consider requests for reconsideration filed after the deadline only in very limited circumstances. See 29 C.F.R. § 1614.604(c). 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 (Z0815) If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant's Right to File a Civil Action for the specific time limits). FOR THE COMMISSION: ______________________________ Carlton M. Hadden's signature Carlton M. Hadden, Director Office of Federal Operations ___7/6/18_______________ Date 1 This case has been randomly assigned a pseudonym which will replace Complainant's name when the decision is published to non-parties and the Commission's website. 2 We do not find that the Agency's actions here warrant a sanction as requested by Complainant, nor do we find that she should receive compensatory damages in the amount of $2000.00 for pursing this matter on appeal. 3 As noted above, the Agency has already indicated that it owes Complainant $44,935.40. Although Complainant on appeal argued that she was entitled to a total back pay recovery of $91,923.66, the amount that she acknowledges the Agency should be credited with already having provided her, $44,935.40, and the amount she paid OWCP, $40,376.94, does not equal $91,923.66. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 0120140468 7 0120140468