* * *, COMPLAINANT, v. MEGAN J. BRENNAN,..., EEOC DOC...

EEOC DOC 0520150187 (E.E.O.C.), 2015 WL 3484628

U.S. Equal Employment Opportunity Commission (E.E.O.C.)

Office of Federal Operations

* * *, COMPLAINANT,v.

MEGAN J. BRENNAN, POSTMASTER GENERAL, UNITED STATES POSTAL SERVICE (WESTERNAREA), AGENCY.

Request No. 0520150187Appeal No. 0120122965

Hearing No. 443-2010-00013XAgency No. 4-E-500-0029-09

May 22, 2015

DECISION ON REQUEST FOR RECONSIDERATION

*1 On December 18, 2014, Complainant timely requested reconsideration of the decision in* * * v. U.S. PostalService, EEOC Appeal No. 0120122965 (November 13, 2014). EEOC Regulations provide that the EqualEmployment Opportunity Commission (EEOC or Commission) may, in its discretion, grant a request to reconsiderany previous Commission decision where the requesting party demonstrates that: (1) the appellate decisioninvolved a clearly erroneous interpretation of material fact or law; or (2) the appellate decision will have asubstantial impact on the policies, practices, or operations of the agency. See 29 C.F.R. § 1614.405(c).

In his prior appeal, Complainant argued that the Agency did not comply with its final order, which adopted andimplemented an Equal Employment Opportunity Commission Administrative Judge's (AJ) decision finding, inrelevant part, that she was discriminated against based on her age and sex when on March 24, 2009, the Agencynotified her that she would be permanently reassigned.

As remedy, the AJ ordered, in relevant part, that Complainant be paid back pay, if any, and other benefits duepursuant to 29 C.F.R. § 1614.501, from May 12, 2009, until her retirement on January 1, 2010. The AJ found thatabsent discrimination, Complainant would have returned to suitable employment during this period, andsubsequently would have received all career ladder promotions to which an employee who performed in a fullysuccessful manner was entitled, until her retirement date of January 1, 2010. The AJ found that Complainant wasentitled to the restoration of annual and sick leave she used between May 12, 2009, and her retirement date ofJanuary 1, 2010, as a result of being off work per doctor's orders.

In our previous decision we found, in relevant part, that the Agency restored the proper amount of sick leave - 1096hours, and annual leave - 192 hours, which was based on clock rings. Regarding the sick leave, we found that whilethe Office of Personnel Management (OPM) already made a determination on Complainant's retirement benefits,the Agency must notify OPM of the 1096 hours of restored sick leave so it could recalculate her service credit andretirement benefits.

In her prior appeal, Complainant requested attorney fees. We found that if Complainant was requesting attorneyfees incurred in the processing of the appeal before us, this was premature because she had not yet shown she wasa prevailing party in that she had not yet demonstrated the Agency failed to comply with the AJ's decision and final

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order. We also found that the normal procedure for requesting such fees was to submit a verified statement of feesto the Agency, not to the Commission.

*2 In our previous decision we ordered, in relevant part, that the Agency ensure that Complainant's personnelrecords reflect the restoration of 1096 hours of sick leave and 192 hours of annual leave, and notify OPM of therestoration of 1096 hours of sick leave for the purpose of recalculating Complainant's service credit and retirementbenefits.1

In her request for reconsideration, Complainant argues that during the back pay period she incurred 120 hours ofleave without pay (LWOP), and should be reimbursed for this amount in the form of back pay. She argues that inaddition to the 1096 hours of restored sick leave, the Agency should notify OPM of the 192 hours of restoredannual leave and the 120 hours of LWOP so her retirement can be recalculated, and the Agency should pay hera lump sum for her reduced retirement from January 1, 2010, to the present. Finally, Complainant argues that whileshe agrees that the payment of attorney fees at this stage is premature, she is a prevailing party because OPM mustrecalculate her retirement benefits.

In the previous decision, the EEOC accurately recounted that Complainant contended that she used 40 hours ofLWOP during the back pay period of May 12, 2009 to January 1, 2010. She based this on her paystubs.Complainant's paystubs for the last three pay periods up to January 1, 2010, indicated she was charged 120 hoursof LWOP over the three pay periods, but reflected a total cumulative amount of 40 hours for that period. In ourprevious decision we noted in a chart that Complainant's pay stubs indicated she used 120 hours of LWOP duringthe back pay period. In its opposition to Complainant's prior appeal, the Agency countered that clock rings (whichwere pulled in September 2011) showed Complainant was not charged any LWOP during the back pay period.

In our previous decision we found that when there are uncertainties over the determination of back pay, we shouldresolve them in favor of Complainant. We found that the Agency's clock ring figures were more favorable toComplainant than the figures derived from her pay stubs: 1096 hours of sick leave (as opposed to 1080 hours basedon her pay stubs), and 192 hours of annual leave (as opposed to 112 hours based on her pay stubs). We find thatthe clock ring figures were still more favorable to Complainant overall, even taking into account the 40 hours ofLWOP on appeal she contended she took during the back pay period. Complainant has not shown that in ourprevious decision we made a clearly erroneous interpretation of material fact or law in crediting clock rings overpay stubs and not awarding her back pay for 40 hours of LWOP.

Complainant argues that the Agency should notify OPM of the 192 hours of restored annual leave so her retirementcan be recalculated. We disagree. Annual leave is not used to adjust service credit for retirement purposes or tocalculate retirement benefits.

We need not address whether Complainant is a prevailing party at this point. If further processing shows that theAgency did not fully comply with its final order which adopted and implemented the AJ's decision, and this resultsin some benefit to Complainant, she should apply for attorney fees with the Agency at that time.

*3 After reviewing the previous decision and the entire record, the Commission finds that the request fails to meetthe criteria of 29 C.F.R. § 1614.405(c), and it is the decision of the Commission to deny the request. The decisionin EEOC Appeal No. 0120122965 remains the Commission's decision. There is no further right of administrativeappeal on the decision of the Commission on this request. The Agency shall comply with the Order below.

ORDER

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The Agency is ordered to take the following actions, within one hundred and twenty (120) calendar days of thisdecision becoming final:1. The Agency shall complete a supplemental investigation to obtain information on whether Complainant isentitled to an annual performance award of $2,500.00, as part of a back pay determination. Relevant informationmay include, but is not limited to, financial or personnel records indicating previous instances and amounts inwhich Complainant has received performance awards; the performance awards received by similarly situatedmanagerial employees during the relevant time period. The Agency shall provide Complainant a copy of thesupplemental investigative file.2. The Agency shall then issue a final decision, with appropriate appeal rights, determining whether it is incompliance with its decision finding discrimination and awarding back pay and other benefits (specifically makinga determination on Complainant's entitlement to the annual performance award). If the Agency determines thatComplainant is entitled to an annual performance award, the Agency shall calculate and pay Complainant back pay(with interest) and all other benefits due pursuant to 29 C.F.R. §1614.501. Specifically, the Agency shall includein its payment the annual performance award that Complainant would have earned in 2009 performing at the fullysuccessful level. The back pay calculation shall include appropriate offsets to account for the Agency's priorpayment of back pay to Complainant. Complainant shall cooperate with the Agency's efforts to compute the amountof back pay and benefits due, and shall provide all relevant information requested by the Agency. If there is adispute regarding the exact amount of back pay, the Agency shall issue a check to Complainant for the undisputedamount, and Complainant may contest the Agency's back pay award in accordance with the appellate procedures.

3. After the Agency has calculated and paid Complainant's back pay award. Complainant shall have sixty (60)calendar days following the end of the tax year in which the final payment is received to calculate the adverse taxconsequences of any lump sum back pay awards, if any, and notify the Agency. Following receipt of Complainant'scalculations, the Agency shall have sixty (60) days to issue Complainant a check compensating her for any adversetax consequences established, with a written explanation for any amount claimed but not paid.

*4 4. The Agency shall ensure that Complainant's personnel records reflect the restoration of 1096 hours of sickleave and 192 hours of annual leave. Then the Agency shall officially notify the U.S. Office of PersonnelManagement of the restoration of 1096 hours of sick leave, for the purpose of recalculating Complainant's servicecredit and retirement benefits.

The Agency is directed to submit a copy of the Agency's supplemental investigative file and a report of complianceto the Compliance Officer, as provided in the statement entitled “Implementation of the Commission's Decision.”The report of compliance shall include supporting documentation of the Agency's calculation of back pay and otherbenefits due Complainant, if applicable, along with documentation indicating it has officially notified the U.S.Office of Personnel Management about the adjustment of Complainant's sick leave balance, for the purpose ofrecalculating Complainant's service credit and retirement benefits. The Agency shall send a copy of thesupplemental investigative file, report of compliance, and all of its enclosures to Complainant.

IMPLEMENTATION OF THE COMMISSION'S DECISION (K0610)

Compliance with the Commission's corrective action is mandatory. The Agency shall submit its compliance reportwithin thirty (30) calendar days of the completion of all ordered corrective action. The report shall be submittedto the Compliance Officer, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box77960, Washington, DC 20013. The Agency's report must contain supporting documentation, and the Agency mustsend 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). TheComplainant also has the right to file a civil action to enforce compliance with the Commission's order prior to orfollowing an administrative petition for enforcement. See 29 C.F.R. §§ 1614.407, 1614.408, and 29 C.F.R. §

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* * *, COMPLAINANT, v. MEGAN J. BRENNAN,..., EEOC DOC...

1614.503(g). Alternatively, the Complainant has the right to file a civil action on the underlying complaint inaccordance 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 42U.S.C. 2000e-16(c) (1994 & Supp. IV 1999). If the Complainant files a civil action, the administrative processingof 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 (P0610)

*5 This decision of the Commission is final, and there is no further right of administrative appeal from theCommission's decision. You have the right to file a civil action in an appropriate United States District Court withinninety (90) calendar days from the date that you receive this decision. If you file a civil action, you must name asthe defendant in the complaint the person who is the official Agency head or department head, identifying thatperson 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 whichyou work.

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 mayrequest from the Court that the Court appoint an attorney to represent you and that the Court also permit you tofile the action without payment of fees, costs, or other security. See Title VII of the Civil Rights Act of 1964, asamended, 42 U.S.C. § 2000e et seq.; the Rehabilitation Act of 1973, as amended, 29 U.S.C. §§ 791, 794(c). Thegrant or denial of the request is within the sole discretion of the Court. Filing a request for an attorney with theCourt does not extend your time in which to file a civil action. Both the request and the civil action must be filedwithin the time limits as stated in the paragraph above (“Right to File a Civil Action”).

FOR THE COMMISSION:

Carlton M. HaddenDirectorOffice of Federal OperationsFootnotes

1 The EEOC ordered other relief, such as determining whether Complainant was entitled to a performance award of$2,500.

EEOC DOC 0520150187 (E.E.O.C.), 2015 WL 3484628End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works.

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