Wendy Ghannam v. Agency for International Development 04A40007 June 22, 2004 . Wendy Ghannam, Petitioner, v. Andrew S. Natsios, Administrator, Agency for International Development (AID), Agency. Petition No. 04A40007 Petition No. 04A30007 Request No. 05A10146 Appeal No. 01990574 Agency No. EOP-96-04 Hearing No. 100-97-7514X DECISION ON A PETITION FOR ENFORCEMENT On December 29, 2003, the Equal Employment Opportunity Commission (EEOC or Commission) docketed a petition for enforcement (PFE) to examine compliance with an order set forth in Wendy Ghannam v. Agency for International Development, EEOC Petition No. 04A30007 (July 2, 2003). This petition for enforcement is accepted by the Commission pursuant to 29 C.F.R. § 1614.503.<1> At the conclusion of the Commission's decision on Petition No. 04A30007, the Commission ordered the agency to take the following remedial actions: Within sixty (60) calendar days of the date this decision becomes final, the agency shall: Award petitioner back pay, with interest, for all wages and benefits, if any, lost between the date she was denied reasonable accommodation (December 12, 1995), and the date she declined the offer of reinstatement (December 14, 2001). The agency shall determine the appropriate amount of back pay, interest, and other benefits due petitioner, pursuant to 29 C.F.R. § 1614.501(c). 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 within thirty (30) calendar days of the date such request is received by petitioner, or in the amount of time provided by the agency, whatever period is longer. If there is a dispute regarding the exact amount of back pay and/or benefits, the agency shall issue a check to the petitioner for the undisputed amount within sixty (60) calendar days of the date the agency determines the amount it believes to be due. The 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.” The agency is 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. Compliance will not be considered complete unless the report provides evidence that the corrective action has been implemented. The Commission has received an October 23, 2003 settlement agreement, signed by petitioner/complainant, and the agency's Director, Office of Equal Opportunity Programs. The parties agreed that the sum of $124,187.10 satisfied the agency's (gross) back pay obligation to petitioner for the period October 1, 1998, to December 14, 2001. Excluded from the settlement agreement are the following issues, which petitioner notably raises in her PFE: Entitlement to back pay for the period December 12, 1995, to October 1, 1998; Reimbursement for COBRA payments for the period December 12, 1995, to December 14, 2001; Entitlement to the Career Transition Assistance Program; and Reimbursement for health insurance, basic life insurance, and Optional B life insurance deductions. The Commission issued letters on May 15, 2002, and November 24, 2003, stating that the agency had complied with the Commission's decision in the above matter. At this time, we find that the agency has not fully complied with the Commission's Order in Petition No. 04A30007. We remind the agency that compliance with the Commission's corrective action is mandatory. 29 C.F.R. § 1614.502(a). Back pay The purpose of a back pay award is to restore petitioner to the position she would have occupied, but for the discrimination. Davis v. United States Postal Service, EEOC Petition No. 04900010 (November 29, 1990). A back pay claimant under Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq., as well as under Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq., generally has a duty to mitigate damages. Specifically, § 706(g) of Title VII, 42 U.S.C. § 2000e-5(g), provides, “Interim earnings or amounts earnable with reasonable diligence by the person or persons discriminated against shall operate to reduce the back pay otherwise allowable.” See § 505 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. § 794a. The burden is on the agency, however, to establish by a preponderance of the evidence that petitioner has failed to mitigate her damages. 29 C.F.R. § 1614.501(d); McNeil v. United States Postal Service, EEOC Request No. 05960436 (December 9, 1999).<2> The Commission recognizes that precise measurement cannot always be used to reduce the wrong inflicted; nonetheless, the Commission believes that the burden of limiting the remedy rests with the defendant agency. Davis v. United States Postal Service, EEOC Petition No. 04900010 (November 29, 1990). It is undisputed that petitioner has been provided with back pay for the period October 1, 1998, through December 14, 2001. The agency, however, did not pay petitioner any ordered back pay for the period December 12, 1995, through October 1, 1998. Petitioner maintains that she is entitled to back pay for this unpaid period. The agency maintains that petitioner is not entitled to back pay for this unpaid period because she has not mitigated her damages. On November 9, 1995, complainant “conditionally accepted” a transfer to a GS-3 receptionist position, and began working in that position on November 20, 1995. When complainant accepted the GS-3 position, she expressly stated that she still intended to pursue accommodation in the GS-7 Employee Development Assistant Position. However, on December 12, 1995, complainant was formally denied use of assistive technology, e.g., voice activated computer software, to allow her to perform her duties as a GS-7 Employee Development Assistant. On or about September 30, 1996, the GS-3 position was subject to a reduction-in-force (RIF), and petitioner was separated from the agency. There is no evidence that petitioner would have been subject to a RIF had she remained in her GS-7 position.<3> The Commission finds that petitioner mitigated her damages when she accepted the GS-3 receptionist position to which she was transferred following the unlawful denial of reasonable accommodation under the Rehabilitation Act. For the period December 12, 1995 through September 30, 1996, petitioner is entitled to back pay at the GS-7 grade level, offset by what she received in pay at the GS-3 level during that time. The agency argues that petitioner is not entitled to back pay from December 12, 1995, through October 1, 1998, because she was not “ready, willing, and able to work” during this period. As we have already found that petitioner mitigated her damages through September 30, 1996, we shall now address the period October 1, 1996, through October 1, 1998. The parties' briefs indicate agreement that receipt of disability retirement constitutes mitigation of damages. In the Agency Response to Petition for Enforcement/Clarification, the agency states, “As Complainant's retirement annuity constitutes mitigation of damages, the Agency began calculating Complainant's back pay from October 1, 1998.” In Petitioner's Rebuttal Statement, petitioner responds that the parties “agree that complainant's disability retirement constitutes mitigation of damages.” However, the parties disagree as to the date on which the mitigation began. In the instant PFE, petitioner maintains that although her application for disability retirement was approved on January 30, 1998, the approval letter from OPM states that annuity payments were to begin on the last day that petitioner was paid, which was the date on which she was subject to the RIF. The Commission notes that in response to petitioner's prior PFE, Petition No. 04A30007, the agency argued, “[T]he Agency has established that Complainant has been receiving disability retirement benefits from the Office of Personnel Management (OPM) possibly since as early as 1996.” A letter dated November 13, 2002, from OPM, states that petitioner's annuity commenced on September 28, 1996; however, OPM benefits began on September 13, 1998, when Office of Workers' Compensation Programs (OWCP) benefits were terminated. The Commission finds that given the parties' positions that receipt of disability retirement constitutes mitigation of damages, and given that petitioner's disability annuity commenced on September 28, 1996, petitioner began mitigation of damages through disability retirement on or about September 28, 1996. The Commission finds that there is insufficient evidence to prove that petitioner would have been on disability retirement in September 1996, had she not been denied reasonable accommodation by the agency. In the agency's July 11, 2003 request for information from petitioner regarding back pay, the agency cites 5 C.F.R. §§ 550.805(c)(1) - 550.805(c)(2), which implement the Back Pay Act. These regulations state as follows: Except as provided in paragraph (d) of this section, in computing the amount of back pay under section 5596 of title 5 United States Code, and this subpart, an agency may not include – Any period during which an employee was not ready, willing, and able to perform his or her duties because of an incapacitating illness or injury; or Any period during which an employee was unavailable for the performance of his or her duties for reasons other than those related to, or caused by, the unjustified or unwarranted personnel action. (Emphasis added). The Commission emphasizes the last part of § 550.805(c)(2), because we note that the agency omitted this portion of the regulation in its July 11, 2003 letter to petitioner, in which it requested information from petitioner regarding back pay and mitigation of damages. This portion of the regulation is noteworthy because the record shows that petitioner was unavailable for the performance of her duties due to the agency's unwarranted personnel action, the unlawful discrimination which petitioner has already proven by a preponderance of the evidence. The Commission found that the agency denied petitioner reasonable accommodation under Section 501 of the Rehabilitation Act when it failed to consider her December 1995 request to be accommodated by use of assistive technology in her GS-7 secretarial position. See Ghannam v. Agency for International Development, EEOC Appeal No. 01990574 (November 9, 2000), req. for reconsideration denied, EEOC Request No. 05A10146 (August 2, 2001). Petitioner was unable to report to her GS-7 position during this period because the agency failed to reasonably accommodate her disability. Petitioner applied for disability retirement on or about September 30, 1996, following her RIF from the GS-3 receptionist position to which she was improperly downgraded due to the agency's discriminatory actions. The agency did not offer petitioner reinstatement to her GS-7 secretarial position until September 4, 2001, following the Commission's finding of discrimination. It was not until December 14, 2001, that petitioner informed the agency that she was completely incapacitated from work and therefore unable to resume her duties. The agency cites petitioner's response to its July 11, 2003 request for information as evidence that her request for back pay should be denied. While petitioner's response to question 6 indicates an unwillingness to mitigate damages, we find this response to be inadequate proof that petitioner failed to mitigate her damages. The agency has submitted to the Commission only a limited portion of petitioner's reply to the July 11, 2003 letter. The agency has only provided petitioner's response to question 6.<4> Not only is the rest of the document not submitted by the agency, but the Commission is unsure as to whether a part of the response to question 6 is missing as well. The agency's omission of a critical portion of the statute indicated above, coupled with the agency's omission of the remainder of this document, causes the Commission to regard this isolated statement as inadequate proof of petitioner's failure to mitigate damages. We also note that the agency cited 5 C.F.R. § 550.805(e)(3)(iii) and (iv) as supporting the agency's assertion that petitioner “must demonstrate that her disability retirement was erroneous.” Those portions of the regulations cited by the agency do not state what the agency purports; rather, they state that an agency must make certain offsets and deductions from a gross back pay award, and the provisions specifically cited by the agency refer to health benefit premiums and life insurance premiums, if such coverage continued during a period of erroneous retirement.<5> The agency appears to understand these provisions, as it previously cited these provisions in its Response to Petition for Enforcement/Clarification in order to explain why the agency deducted health and life insurance premiums from the back pay award covering the period October 1, 1998 through December 14, 2001. As detailed below, the parties have come to agreement regarding deductions for health insurance and life insurance premiums. The agency has presented no comprehensible argument as to why it has not paid petitioner the back pay award ordered by the Commission for the period December 12, 1995, through October 1, 1998. The agency failed to demonstrate by a preponderance of the evidence that petitioner has failed to mitigate her damages, was unavailable for the performance of her duties, or was not ready, willing and able to perform her duties for reasons other than the unlawful discrimination to which she was subjected by the agency beginning on December 12, 1995. Therefore, in addition to finding that petitioner is entitled to back pay at the GS-7 grade level, offset by what she received in pay at the GS-3 level, for the period December 12, 1995 through September 30, 1996, we find that for the period October 1, 1996 through October 1, 1998, petitioner is entitled to back pay, at the GS-7 grade level, offset by petitioner's Federal Employees' Compensation Act (FECA) benefits where such award would result in double recovery.<6> The Commission GRANTS petitioner's Petition for Enforcement with respect to the issue of back pay for the period December 12, 1995, through October 1, 1998, and directs the agency to take the actions set forth in the order below. Health and Life Insurance In Petitioner's Rebuttal Statement, petitioner concedes that she is in agreement with the agency's position that if the Office of Personnel Management (OPM) determines that an overpayment has been made for health and life insurance, that sum will be refunded to petitioner by OPM. Therefore, the Commission considers these issues resolved. Career Transition Assistance Program Finally, petitioner claims that she is entitled to a separation payment of $23,000.00, which she contends was given to all employees who lost their positions as a result of downsizing, and could not be successfully placed in another position. The Commission finds that petitioner's request for a separation payment is beyond the scope of the term “benefits” encompassed in our award of back pay and was not ordered in the Commission's prior decisions. Therefore, we decline to further address this matter. ORDER Within sixty (60) calendar days of the date this decision becomes final, the agency shall: Award petitioner back pay, with interest, for all wages and benefits lost between December 12, 1995, and October 1, 1998. Specifically, the agency shall award petitioner/complainant back pay at the GS-7 grade level, offset by what she received in pay at the GS-3 level, for the period December 12, 1995 through September 30, 1996. The agency shall also award petitioner/complainant back pay at the GS-7 grade level for the period October 1, 1996 through October 1, 1998. Petitioner's back pay award should be offset by her Federal Employees' Compensation Act (FECA) benefits, where such award would result in double recovery, as detailed in this decision. The agency shall determine the appropriate amount of back pay, interest, and other benefits due petitioner, pursuant to 5 C.F.R. § 550.805 and 29 C.F.R. § 1614.501(c). 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 within thirty (30) calendar days of the date such request is received by petitioner, or in the amount of time provided by the agency, whatever period is longer. If there is a dispute regarding the exact amount of back pay and/or benefits, the agency shall issue a check to the petitioner for the undisputed amount within sixty (60) calendar days of the date the agency determines the amount it believes to be due. The 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.” The agency shall notify OPM of all remedial actions taken so that OPM can determine the effect, if any on retirement benefits. Such information shall include, but is not limited to, appropriate information regarding petitioner's salary rates and remedial action ordered during the period December 12, 1995 through December 14, 2001. The agency must provide certification that it has submitted the appropriate documentation to OPM. The agency is 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. Compliance will not be considered complete unless the report provides evidence that the corrective action has been implemented. ATTORNEY'S FEES (H0900) 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 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 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 (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 June 22, 2004 __________________ Date 1For a summary of the procedural history of this case, see Ghannam v. Agency for International Development, Petition No. 04A30007 (July 2, 2003); see also Ghannam v. Agency for International Development, Appeal No. 01990574 (Nov. 9, 2000), req. for reconsideration denied, EEOC Request No. 05A10146 (Aug. 2, 2001). 2The Commission has generally held that an agency must satisfy a two-prong test to carry its burden of proof. This test requires the agency to show: 1) that petitioner failed to use reasonable care and diligence in seeking a suitable position, and 2) that there were suitable positions available which petitioner could have discovered and for which she was qualified. McNeil v. United States Postal Service, EEOC Request No. 05960436 (December 9, 1999) (citing Simmons v. United States Postal Service, EEOC Request No. 05900957 (December 10, 1993)). 3The Commission already found in Ghannam v. Agency for International Development, EEOC Request No. 05A10146 (August 2, 2001), that: The agency never asserted at any time during the investigation below that complainant would in fact have been subject to a RIF if she had remained in her GS-7 position. . . . In the absence of any contention or evidence that complainant would have been subject to a RIF even if she had remained in her GS-7 position, she is entitled to receive reinstatement together with back pay from the date she was denied reasonable accommodation through the date she either returns to duty or declines the offer of reinstatement. Ghannam, EEOC Request No. 05A10146. 4Petitioner's response to question 6 reads: Since 1995, when I began my EEO grievance process against USAID, I did not seek any outside employment. This includes all dates from December 12, 1995 through December 14, 2001. My reasons for this are quite simple, as I had enough integrity and dignity not to offer my job skills capabilities to any employer in the National Capital Area when, in fact, my tenure would have been short-lived due to my EEO case framework against USAID, and the realization that the [sic] I would be re-employed at some date at a future time. 5The cited regulations read as follows: In computing the net amount of back pay payable under section 5596 of title 5, United States Code, and this subpart, an agency must make the following offsets and deductions (in the order shown) from the gross back pay award: . . . Authorized deductions of the type that would have been made from the employee's pay (if paid when properly due) in accordance with the normal order of precedence for deductions from pay established by the agency, subject to any applicable law or regulation, including, but not limited to, the following types of deductions, as applicable: . . . Health benefit premiums, if coverage continued during a period of erroneous retirement (with paid premiums recoverable by the retirement system) or is retroactively reinstated at the employee's election under 5 U.S.C. 8908(a); Life insurance premiums if – Coverage continued during a period of erroneous retirement; Coverage was stopped during an erroneous suspension or separation and the employee suffered death or accidental dismemberment during that period (consistent with 5 U.S.C. 8706(d)); or Additional premiums are owed because of a retroactive increase in basic pay; . . . . 5 C.F.R. § 550.805(e)(3)(iii) and (iv). 6It is well-settled Commission precedent that workers' compensation awards do not preclude recoveries for discrimination, such as back pay, where such awards do not result in double recovery. Sands v. Department of Defense, EEOC Petition No. 04990001 (February 25, 2001). A Federal Employees' Compensation Act (FECA) award that is meant to compensate for lost wages should be deducted from the total amount of back pay to which petitioner is entitled in order to avoid double wage recovery, but the portion of the FECA award that is paid as reparation for physical injuries should not be deducted from back pay because it is unrelated to wages earned. Id. (citing Ferguson v. United States Postal Service, EEOC Request No. 05880848 (May 8, 1990)). If the agency contends that petitioner's receipt of workers' compensation benefits would result in double recovery with back pay for petitioner for the period December 12, 1995 through October 1, 1998, the agency must show what portion of petitioner's FECA benefits, if any, applied to back pay, leave and other benefits, and what portion of petitioner's FECA benefits, if any, applied to reparation for her physical injuries.