Deborah A. Ulloa v. United States Postal Service
04A30025
August 3, 2004
.
Deborah A. Ulloa,
Petitioner,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Pacific Area),
Agency.
Petition No. 04A30025
Appeal No. 01972750
Agency No. 5E-1039-91<1>
Hearing No. 350-95-8193X
DECISION ON A PETITION FOR ENFORCEMENT
On January 29, 2003, the Equal Employment Opportunity Commission
(EEOC or Commission) docketed a petition for enforcement to examine the
enforcement of an order set forth in Deborah A. Ulloa v. United States
Postal Service, EEOC Appeal No. 01972750 (June 22, 2000). This petition
for enforcement is accepted by the Commission pursuant to 29 C.F.R. §
1614.503. Petitioner alleged that the agency failed to fully comply
with the Commission's order to provide her with back pay for the period
from 1989 to the present.<2>
Petitioner filed a complaint in which she alleged that the agency
discriminated against her on the bases of sex (female) and in reprisal
for prior 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., when she was
subjected to sexual and sex-based harassment and retaliated against by
additional supervisors after initiating EEO activity. Petitioner appealed
the agency's final decision finding no discrimination to the Commission.
In EEOC Appeal No. 01972750, the Commission found the agency liable
for harassment on the basis of sex, and ordered the agency to take the
following remedial actions:
1. The agency shall provide complainant back pay and other compensation
due her, including any reimbursement for sick, annual or other leave
due her, as well as any overtime pay and related benefits due her,
retroactive to the day complainant was placed in off-work status,
pursuant to 5 C.F.R. § 550.805.
The agency shall determine the appropriate amount of back pay (with
interest, where applicable) and other benefits due complainant, pursuant
to 29 C.F.R. 1614.501, no later than sixty (60) calendar days after the
date this decision becomes final. The complainant 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 the complainant for the undisputed
amount within sixty (60) calendar days of the date the agency determines
the amount it believes to be due. The complainant 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."
2. The agency is directed to conduct a minimum of twenty-four (24)
hours of training for the managers, supervisors, Postmaster, EEO
personnel, and personnel staff, who were found to have discriminated
against complainant by failing to take prompt and effective remedial
action concerning complainant's allegations of sexual harassment. The
agency shall address these employees' responsibilities with respect
to eliminating discrimination in the workplace, ensuring that sexual
harassment in all its forms and retaliation do not occur, understanding
the remedies available against those who discriminate, and all other
supervisory and managerial responsibilities under equal employment
opportunity law.
3. The agency shall provide a minimum of sixteen (16) hours of
diversity training for all employees at the General Mail Facility,
Phoenix, Arizona concerning unlawful harassment in the workplace.
4. The agency shall take appropriate preventative steps to ensure that
no employee is subjected to harassment under any protected basis or
retaliation for engaging in EEO activity, and to ensure that appropriate
steps are taken immediately after management is notified of any such
harassment.
5. The agency shall take all appropriate corrective steps to prevent
the recurrence of such discriminatory actions by and from all relevant
agency officials. Such corrective steps shall include reviewing and
revising agency policies and procedures relating to the investigation
and prevention of sexual harassment so as to provide prompt and thorough
investigation of such complaints, and appropriate and effective remedial
corrective actions in response to such complaints. The agency shall also
review the matters giving rise to the instant complaint to determine
the appropriateness of disciplinary actions against agency officials
involved and responsible. The agency shall record its basis for deciding
whether or not to take disciplinary action, submit such records to the
EEOC pursuant to paragraph six below, and maintain such records for
a period of no less than five (5) years from the date this finding of
discrimination becomes final.
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 complainant,
including evidence that the corrective action has been implemented.
The agency is ORDERED to post at its General Mail Facility, Phoenix,
Arizona, copies of the attached notice. Copies of the notice, after
being signed by the agency's duly authorized representative, shall
be posted by the agency within thirty (30) calendar days of the date
this decision becomes final, and shall remain posted for sixty (60)
consecutive days, in conspicuous places, including all places where
notices to employees are customarily posted. The agency shall take
reasonable steps to ensure that said notices are not altered, defaced,
or covered by any other material. The original signed notice is to be
submitted to the Compliance Officer at the address cited in the paragraph
entitled “Implementation of the Commission's Decision,” within ten (10)
calendar days of the expiration of the posting period.
The matter was assigned to a Compliance Officer and docketed as Compliance
No. 06A20300 on December 13, 2001. On January 24, 2003, the agency
submitted its final compliance report to the Commission in which the
agency stated that it had complied with all orders issued in Appeal
No. 01972750. On January 29, 2003, petitioner submitted the petition
for enforcement at issue. Petitioner contends that the agency failed
to correctly calculate the back pay owed to her. Petitioner maintains
that the agency erroneously sought offsets for payments received by her
from the Office of Workers' Compensation Programs (OWCP) and an offset
in the amount that she was paid for earned annual leave prior to the
period in issue. Petitioner further asserts that the agency failed to
include interest in calculating her back pay award. The agency also
failed to include overtime, holiday pay, and night shift differential in
the back pay calculations. According to petitioner, the error is clear
in that following the finding of discrimination, the agency concluded
that petitioner actually owed the agency $52,450.44.
On April 28, 2004, the Commission received a response from the agency
via facsimile; however, it is unclear as to whether a response was ever
issued to petitioner. In its response, the agency recognizes that its
initial calculation of petitioner's back pay award, which resulted in
a negative back pay award, was incorrect. The agency acknowledges that
employees' back pay awards must include interest. Although the agency
briefly addresses the issues of holiday leave, night differential,
overtime, interest, and deductions for OWCP benefits received, by the
agency's own admission, it is necessary to recalculate petitioner's
back pay award. As an explanation for its delay in awarding petitioner
back pay, the agency relies on the fact that on November 4, 2003, it
changed the manner in which it calculated back pay awards. We note,
however, that the Commission's and the Office of Personnel Management's
(OPM's) regulations have remained unchanged since the issuance of the
Commission's June 22, 2000 order. The enormous delay in implementing
the Commission's June 22, 2000 order is egregious and unacceptable.
We direct the agency to comply immediately with the Commission's June
22, 2000 order above, and, with the Order issued below. The Commission
hopes that the guidance provided below will aid the agency in conducting
a supplemental investigation, re-calculating petitioner's back pay award
and implementing our orders.
Back pay
The purpose of a back pay award is to restore petitioner to the position
she would have occupied, but for the discrimination. Albemarle Paper
Co. v. Moody, 442 U.S. 405, 418-19 (1975); Davis v. United States Postal
Service, EEOC Petition No. 04900010 (November 29, 1990). The agency is
required to make certain deductions from back pay awards to ensure that
the employee does not receive more in total benefits than she would have
received in the absence of the personnel action. The person who has
been discriminated against must receive a sum of money equal to what
would have been earned by that person in the employment lost through
discrimination (gross back pay) less what was actually earned from
other employment during the period, after normal expenses incurred
in seeking and holding the interim employment have been deducted
(net interim earnings). The difference between gross back pay and
net interim earnings is net back pay due. Net back pay accrues from
the date of discrimination, except where the statute limits recovery,
until the discrimination against the individual has been remedied.
Gross 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 rates of pay, transfers, promotions,
and privileges of employment to which the petitioner would have been
entitled but for the discrimination. Allen v. Department for the Air
Force, Petition No. 04940006 (May 31, 1996) (citing Williams v. United
States Postal Service, EEOC Appeal No. 01933156 (May 4, 1994), request for
reconsideration denied, EEOC Request No. 05940680 (February 16, 1995)).
The Commission construes “benefits” broadly to include, inter alia,
annual leave, sick leave, health insurance, overtime and premium pay,
night differentials, and retirement contributions. Vereb v. Department
of Justice, Petition No. 04980008 (February 26, 1999). A back pay
claimant under Title VII generally has a duty to mitigate damages.
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).<3> 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 the agency's obligation to ensure that its back pay calculations
are clear, supported in the record and in accordance with 29 C.F.R. §
1614.501.
OWCP
It 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)).<4> If the agency contends that
petitioner's receipt of workers' compensation benefits would result in
double recovery, 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
physical injuries. Accordingly, we remand this matter to the agency to
make such a determination.
Overtime and Premium Pay
As stated above, “benefits” to which a petitioner is entitled with a
back pay award include, inter alia, overtime, night differential and
holiday pay.<5> Petitioner disputes the amount of overtime and holiday
pay included by the agency in its calculation of back pay. The agency
has not provided sufficient documentation or a coherent explanation to
determine whether overtime, holiday pay or night differential are being
appropriately considered in petitioner's back pay award. The agency's
calculation of petitioner's back pay award must include overtime and any
premium pay that would have been earned during the relevant time period.
The appropriate method for determining overtime is to examine the pay of
similarly situated employees during the relevant period. The Commission
has consistently used the pay of similarly situated employees in making
overtime rate determinations. See Sanchez v. United States Postal
Service, EEOC Appeal No. 01975022 (October 28, 1999); Hanns v. United
States Postal Service, EEOC Petition No. 04960030 (September 18, 1997);
Allen v. Department of the Air Force, EEOC Petition No. 04940006 (May
31, 1996). Therefore, the agency is directed to include an amount equal
to the average amount of overtime and premium pay earned by similarly
situated Parcel Post Distribution Clerks during the subject time period,
in its recalculation of petitioner's back pay award. The Commission
requests that the agency provide a clear, decipherable explanation as to
how it reached the amount of overtime and premium pay hours determined
and how these hours were calculated to reach the back pay award.
Interest
Consistent with the order in EEOC Appeal No. 01972750, petitioner is
entitled to interest on back pay owed. In the order, the Commission
directed the agency to pay interest on back pay in accordance with
pertinent Office of Personnel Management (OPM) regulations and 29
C.F.R. § 1614.501. On remand, the agency shall identify which regulatory
or statutory interest formula it used, calculate and pay the petitioner
interest owed.
Annual Leave
The Commission also construes the word “benefits” to include annual
leave and sick leave. See Padilla v. United States Postal Service, EEOC
Petition No. 04970010 (October 2, 1997). The Commission directs the
agency to provide documentation and explanation as to why petitioner's
back pay was offset by $5,218.41, which according to petitioner was an
amount that she was paid for earned annual leave prior to the period
in issue. The agency does not address this issue in its response to
the petition for enforcement.
Based upon a review of the record, and for the reasons set forth in
the instant decision, the Commission finds that the agency has failed
to full comply with our prior Order set forth in Ulloa v. United
States Postal Service, EEOC Appeal No. 01972750 (June 22, 2000).
We direct the agency to conduct a supplemental investigation to gather
the information necessary to properly calculate petitioner's back pay
award in accordance with the guidance set forth in the instant decision,
address each deficiency in the back pay award raised by petitioner in her
petition for enforcement, and provide a detailed explanation as to how
its most recent calculation of petitioner's back pay award was reached.
ORDER
The agency shall conduct a supplemental investigation which shall include
the following actions:
Determine, with specificity and supporting documentation, what portion
of petitioner's OWCP benefits applied to back pay, leave and other
benefits and what portion of her OWCP benefits applied to reparation
for physical injuries;
The agency shall calculate and pay all back pay to the petitioner
at the same rates which corresponded with her required schedule,
to include night differential and holiday pay, as well as overtime.
The agency shall submit documentation that all back pay has been paid
at the appropriate rate;
The agency shall pay interest on all back pay owed in accordance with
pertinent OPM Regulations and 29 C.F.R. § 1614.501. The agency shall
identify which regulatory or statutory interest rate formula it used; and,
Following its supplemental investigation, the agency shall recalculate
its back pay award with specificity, including interest, pursuant to 29
C.F.R. § 1614.501, and in accordance with the order set forth in EEOC
Appeal No. 01972750. Petitioner shall cooperate in the agency's efforts
to determine the amount of back pay due, and shall provide all relevant
information requested by the agency. The agency shall provide petitioner
and the Commission with a full explanation of its back pay calculations,
all employment benefits, and interest.
The agency shall complete its supplementation of the record within
thirty (30) calendar days of the date this decision becomes final and
forward a copy of the supplemental record to the petitioner for her
comments thereon. Within sixty (60) calendar days of the date this
decision becomes final, the agency shall forward to the Commission and
petitioner the information obtained during its supplemental investigation,
its determination as to the back pay award, evidence that it has paid
petitioner the back pay in question, as well as any comments from
petitioner, for further review of its compliance with the Commission's
prior order. Petitioner may also forward any comments regarding the
supplemental investigation and agency's conclusions on those matters
directly to the Commission. We remind the agency that failure to obtain
evidence in support of its position may lead to an adverse inference in
favor of petitioner.
The agency is further directed to submit to the Compliance Officer,
as referenced below, copies of the letters that transmit the evidence
to petitioner and the supplemental investigation to the Commission;
evidence that it has paid petitioner the back pay in question; and
evidence that it has issued a decision addressing the matters herein.
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.
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.
PETITIONER'S RIGHT TO FILE A CIVIL ACTION (R0900)
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 (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
August 3, 2004
__________________
Date
1There have been a number of
different agency numbers used in the instant case; however, as the most
recent correspondence that the Commission has from the agency refers
to this case as Agency No. 5E-1039-91, the Commission will use this
agency number.
2On December 12, 2001, the Commission issued a decision on Petition
No. 04A10032, in which petitioner alleged that the agency failed to
fully comply with the Commission's order in Appeal No. 01972750, in
that the agency refused to pay petitioner the back pay that she had
been awarded without first receiving petitioner's tax returns for the
years 1989 to 1999. The Commission found that the agency could obtain
the information that it sought from petitioner's tax returns through
less intrusive means, and ordered the agency to process and compute
petitioner's back pay award from the information that it already had,
together with an affidavit to be supplied by petitioner addressing the
issues of additional sources of income not included on her W-2s and 1099s,
as well as her claimed occupation for the years in question.
3The 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)).
4We note that petitioner is not entitled to any leave or other benefits
already restored under FECA. See Schultz v. United States Postal Service,
EEOC Appeal No. 03980087 (October 14, 1999).
5We note that in its response to the PFE, the agency has thus far only
addressed holiday leave, rather than holiday pay.
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