U.S. Equal Employment Opportunity Commission (E.E.O.C.)
Office of Federal Operations
* * *, PETITIONER,
v.
ERIC H. HOLDER, JR., ATTORNEY GENERAL, DEPARTMENT OF JUSTICE (U.S. MARSHALS SERVICE), AGENCY.
Petition No. 0420130021
Request No. 0520120397
Appeal No. 0120111958
Agency No. USM20080027
December 17, 2013
 
DECISION ON A PETITION FOR ENFORCEMENT
 
On February 22, 2011, the Equal Employment Opportunity Commission (EEOC or Commission) docketed a petition for enforcement to examine the enforcement of an Order set forth in * * *v. Department of Justice, Appeal No. 0120111958, recon. denied, Request No. 0520120397 (October 3, 2012). 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 to issue a final compliance report, post a notice and pay back pay.
  
BACKGROUND
 
At the time of events giving rise to this complaint, Petitioner worked as an Aviation Security Officer at the Agency's Oklahoma City, Oklahoma. All ASOs worked under a contract that stipulated payment per assignment without any minimum guarantee of work. Petitioner filed a complaint in which she alleged that the Agency discriminated against her on the bases of sex (female), age (61), and reprisal for prior protected 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. and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. Petitioner appealed the Agency's final decision to the Commission, and in Appeal No. 0120111958, the Commission found that she was subjected to reprisal when on April 11, 2008; management informed her that her services were no longer needed.
 
The Agency was ordered to reinstate Petitioner to her position retroactive to the official dale of the termination of her contract. The Order also specified that the Agency had to calculate and pay back pay. Specifically, the Order required the Agency to "take into account the average salary earned by the Aviation Security Officers during the relevant time period." The matter was assigned to a Compliance Officer and docketed as Compliance No. 0620130008.
 
On November 26, 2012, the Agency contacted Petitioner and informed her that it had calculated back pay in the amount of $25,716.25 for the period of April 11, 2008 up until her reinstatement on December 21, 2012. The Agency also advised that:
In addition, if your client has no objection to the lump sum amount as pan of the deal the Agency will have no objection to your verified statement of attorney fees in the amount of $4,942.00 and can also send that to you separately from the lump sum amount via electronic transfer.
 
On March 29, 2013, Petitioner submitted the petition for enforcement at issue. Petitioner contends that the Agency failed to properly calculate her back pay award, because the Agency used the lowest possible pay rate and hours worked in its calculations, thus reducing the average payment to a much lower amount than what she had worked in previous years. For example, Petitioner submits an affidavit wherein she avers that in 2006, she was paid $44, 705.00, and in 2007, she was paid $44,096.00. However, in calculating the award for 2009, the Agency included individuals who worked only few hours in comparison, thus reducing the average yearly salary to $23,954.97. Petitioner asserts that she was one of the top earning Aviation Security Officers.
 
Petitioner asserts that using figures from part time employees is not appropriate and does not make her whole. Moreover, she asserts she is due the per diem she had normally received, as well as the pay raise she was due during the back pay period. Petitioner also maintains that the Agency failed to issue a final compliance report, and post a notice. Finally, Petitioner takes issue with the Agency's position that its payment of attorney's fees was contingent on Petitioner's acceptance of the back pay award.
  
ANALYSIS AND FINDINGS
 
The purpose of a back pay award is to restore to Petitioner the income she would have otherwise earned but for the discrimination. See Albemarle Paper Co. v. Moody, 422 U.S. 405 (1975); Davis v. United States Postal Service, EEOC Petition No. 04900010 (November 29, 1990). Back pay should include all forms of compensation and must reflect fluctuations in working time, overtime rates, penalty overtime, Sunday premium and night work, changing rate of pay, transfers, promotions, and privileges of employment to which Petitioner would have been entitled but for the discrimination. See Ulloa v. U.S. Postal Service, EEOC Petition No. 04A30025 (Aug. 3, 2004) (citing Allen v. Dep't of the Air Force, EEOC Petition No. 04940006 (May 31, 1996)); Perez v. U.S. Postal Service, EEOC Petition No, 04A40041 (Mar. 3, 2005).
 
The Commission realizes that precise measurement cannot always be used to remedy the wrong inflicted and that the computation of back pay awards inherently involves some speculation. Hanns v. U.S. Postal Service, EEOC Petition No. 04960030 (Sept. 18, 1997). Nonetheless, uncertainties involved in a back pay determination should be resolved against the Agency, which has already been found to have committed the acts of discrimination. Id.; see also Kloock v. U.S. Postal Service, EEOC Petition No. O4A4O012 (June 16.2004).
 
In this case, the Agency must provide Petitioner with make-whole relief that places her in the position she would have occupied absent the discrimination. This means that the Agency must provide Petitioner with all compensation, benefits, and privileges that Petitioner would have received had she been selected for the position. In using the "average" ASO in this case, the Commission intended to have the Agency calculate an hourly amount that accounted for some speculation, given the uncertainty of the number of hours Petitioner would have worked, had she not been subjected to discrimination.
 
However, the Agency's consideration of all employees in its average calculation reduced Petitioner's award and thus, we find it is not in compliance with our order. As an analogy, in accordance with Commission precedent, the appropriate method of determining the promotions, awards, and overtime that Petitioner would have likely received, absent discrimination, is to examine the pay of similarly situated employees during the relevant period. See Sanders v. U.S. Postal Serv., EEOC No. 04990018 (April 23, 2001), citing Sanchez v. U.S. Postal Serv., EEOC Appeal No. 01975022 (Oct. 28, 1999); Hanns v. U.S. Postal Serv., EEOC Petition No. 04960030 (Sept. 18, 1997); Allen v. Dep't of the Air Force, EEOC Petition No. 04940006 (May 31, 1996).
 
Here, we find the Agency should have used only similarly situated employees when calculating the average salary. Therefore, the Agency shall recalculate its back pay figure, including only those individuals who are considered "similarly situated." For example, the agency's documentations reveal that Petitioner ranked 13th out of over seventy available Aviation Security Officers. Testimony in the record reveals that assignments were made in accordance with a number of factors, including availability of the ASO, and whether or not they had volunteered for work in the past. In its calculation, the Agency shall include those individuals who, like Petitioner, sought out work consistently and accepted assignments regularly. The Agency shall also include all benefits owed, including any pay raises, overtime hours and per diem amounts she would have received had she not been discriminated against. The Agency shall be cognizant of the theory of "make whole" relief, as enunciated in Albemarle Paper Co., 422 U.S. 405.
 
In terms of Petitioner's attorney's fees, the Agency is directed to process Petitioner's attorney's fees award in accordance with 29 C.F.R § 1614.501. The Agency's obligation to pay attorney's fees is not contingent on Petitioner's acceptance of the Agency's calculation of back pay. In light of the need for this petition, Petitioner may need to submit an updated, verified statement of attorney's fees in accordance with the paragraph below.
  
CONCLUSION
 
For the reasons stated herein, the Commission GRANTS Petitioner's Petition for Enforcement and ORDERS the Agency to comply with the back pay order in EEOC Appeal No. 012011958 and 0520120397 and the clarification above.
  
ORDER
 
The Agency is ordered to take the following remedial action:
 
1. Within sixty (60) calendar days of the date this decision becomes final, the Agency shall make a written offer to Petitioner of reinstatement to the position as an Aviation Security Officer at Justice Prisoner and Alien Transportation Systems in Oklahoma City, Oklahoma, retroactive to official date of the termination of her contract. Petitioner shall be given a minimum of fifteen (15) days from receipt of the offer of reinstatement within which to accept or decline the offer. Failure to accept the offer within the time period set by the Agency will be considered a rejection of the offer, unless Petitioner can show that circumstances beyond her control prevented a response within the time limit. If Petitioner accepts, the Agency shall retroactively promote Petitioner to the next appropriate step and/or grade, respectively, if applicable according to Agency policy.
 
2. Petitioner shall be awarded back pay retroactive to the date her contract was terminated. The Agency shall calculate the back pay and interest owed to Petitioner in accordance with 29 C.F.R. § 1614.501. In doing so. the Agency shall take into account the average salary earned by similarly situated Aviation Security Officers during the relevant time period. The Agency shall provide Petitioner with a detailed statement clarifying how Petitioner's back pay award was reached. The statement shall consist of a clear and concise, "plain language" statement of the methods of calculations used for the instant matter and actual calculations applying said formulas and methods. If there is still 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 thirty (30) days of the date the Agency determines the amount it believes to be due;
 
3. 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 or enforcement must be filed with the Compliance Officer, at the address referenced in the statement entitled "Implementation of the Commission's Decision;"
 
4. Within sixty (60) calendar days of the date this decision becomes final, the Agency shall conduct a supplemental investigation to determine whether Petitioner is entitled to compensatory damages incurred as a result of the Agency's discriminatory action. The Agency shall allow Petitioner to present evidence in support of her compensatory damages claim. See Carle v. Dep't of the Navy, EEOC Appeal No. 01922369 (January 5, 1993). Petitioner shall cooperate with the Agency in this regard. The Agency shall issue a final decision addressing the issues of compensatory damages no later than 60 days after the Agency's receipt of all information. The Agency shall submit a copy of the final decision to the Compliance Officer at the address set forth herein.
 
5. Within sixty (60) calendar days of the date this decision becomes final, the Agency shall provide the employees identified in the earlier decision as S1 and S2 with live EEO training with an emphasis on the prohibition against retaliation.
 
6. The Agency is further directed to submit a report of compliance, as provided in the statement entitled "Implementation of the Commission's Decision." The report shall include supporting documentation of the Agency's calculation of back pay and other benefits due Petitioner, including evidence that the corrective action has been implemented.
  
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 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 (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 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.
  
PETITIONER'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