EEOC Appeal 2020000083

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Ross H.,1
Petitioner,
v.
Louis DeJoy,
Postmaster General,
United States Postal Service
(Capital Metro Area),
Agency.
Petition No. 2020000083
Appeal No. 0720180001
Hearing No. 430-2016-0004X
Agency No. 4K-230-0023-15
DECISION ON A PETITION FOR ENFORCEMENT
On October 3, 2019, the Equal Employment Opportunity Commission (EEOC or Commission)
docketed a petition for enforcement to examine the enforcement of an Order set forth in EEOC
Appeal No. 0720180001 (May 17, 2018). Petitioner alleged that the Agency failed to fully comply
with several elements of the Commission’s order in Ross H. v. U.S. Postal Serv., EEOC Appeal
No. 0720180001 (May 17, 2018).
BACKGROUND
At the time of events giving rise to this complaint, Petitioner worked as an EAS-17 Customer
Service Supervisor at the Agency’s Debree Station in Norfolk, Virginia. Petitioner filed an EEO
complaint in which he alleged that the Agency had discriminated against him on the bases of race
(Caucasian), sex (male), age (53), and reprisal (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. when:
1 This case has been randomly assigned a pseudonym which will replace Petitioner’s name when
the decision is published to non-parties and the Commission’s website.

2020000083	2
1. 	On October 2, 2014, he was not selected for the Manager Customer Services, EAS-18,
position located in Norfolk, Virginia;
2. 	On October 2, 2014, he was not selected for the Manager Customer Services, EAS-20,
position located in Norfolk, Virginia; and
3. 	On February 25, 2015, he was not selected for the Postmaster, EAS-22, position located
in Portsmouth, Virginia.
Following an investigation, Petitioner requested a hearing before an EEOC Administrative Judge
(AJ). The AJ assigned to the matter sanctioned the Agency for its failure to provide a complete
investigative record with respect to the three nonselection claims at issue. As a sanction, the AJ
entered default judgment in favor of Petitioner. The Agency issued a final order rejecting the AJ’s
default judgment decision and the relief ordered and promptly appealed the AJ’s decision. In Ross
H. v. U.S. Postal Serv., EEOC Appeal No. 0720180001 (May 17, 2018), we reversed the Agency’s
final order and upheld the AJ’s decision to levy the sanction of default judgment finding that it
was not an abuse of discretion and was appropriate given the Agency’s egregious failure to conduct
an appropriate investigation. Our order for relief in that decision is reproduced herein verbatim:
1. 	Within sixty (60) calendar days of the date this decision is issued, the Agency shall
place Complainant in the position of Manager Customer Service, EAS-20, in the
Norfolk, Virginia area or a mutually agreed-to position for which Complainant is
qualified, with the effective date of November 4, 2014.
2. 	Within sixty (60) calendar days of the date this decision is issued, the Agency shall
determine the appropriate amount of back pay, with interest, and other benefits due
Complainant, pursuant to 29 C.F.R. § 1614.501. 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
Complainant for the undisputed amount within 60 calendar days of the date the Agency
determines the amount it believes to be due. Complainant may petition for clarification
or enforcement 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.”
3. 	Within sixty (60) calendar days of the date this decision is issued, the Agency shall pay
Complainant $30,000.00 in non-pecuniary compensatory damages.
4. 	Within sixty (60) calendar days of the date this decision is issued, the Agency shall
calculate and restore to Complainant any leave used during the period in question as a
result of the unlawful discrimination. Complainant shall cooperate with the Agency
and provide it with information respecting what leave he took as a result of the
discrimination.

2020000083	3
5. 	Within sixty (60) calendar days of the date this decision is issued, the Agency shall pay
$90,040.90 in attorneys’ fees and $3,756.11 in costs.
6. 	Within ninety (90) calendar days of the date this decision is issued, the Agency shall
provide at least eight (8) hours of in-person or interactive training to its managers and
staff at the National EEO Investigative Services Office in Tampa, Florida regarding
their responsibilities concerning case processing and developing a complete and
impartial investigative record.
7. 	Within sixty (60) calendar days of the date this decision is issued, the Agency shall
consider taking appropriate disciplinary action against the responsible National EEO
Investigative Services 	Office management officials. The Commission does not
consider training to be disciplinary action. The Agency shall report its decision to the
Compliance Officer. If the Agency decides to take disciplinary action, it shall identify
the action taken. If the Agency decides not to take disciplinary action, it shall set forth
the reason(s) for its decision not to impose discipline. If the responsible management
officials have left the Agency's employ, the Agency shall furnish documentation of
their departure dates.
8. 	The Agency is ordered to post at its National EEO Investigative Services Office in
Tampa, Florida of the attached notice. Copies of the notice, after being signed by the
Agency's duly authorized representative, shall be posted both in hard copy and
electronic format [emphasis supplied] by the Agency within 30 calendar days of the
date this decision was issued, and shall remain posted for 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 	as 	directed 	in 	the 	paragraph 	entitled
"Implementation of the Commission's Decision," within 10 calendar days of the
expiration of the posting period. The report must be in digital format, and must be
submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g).
The matter was assigned to a Compliance Officer and docketed as Compliance No. 0620180566
on May 17, 2018. In response to a letter from the Compliance Officer, the Agency submitted an
interim compliance report (ICR1) dated March 28, 2019. With regard to item (1) of the order for
relief, the Agency reported that it had placed Petitioner in an EAS-20 Customer Services Manager
position and that it would subsequently provide documentation for that personnel action. 	As to
item (2), which directed the Agency to award back pay with interest and other benefits, the Agency
reported that its action was pending. Concerning item (3), the Agency reported that it had issued
a check to Petitioner in the amount of $30,000 for non-pecuniary compensatory damages on July
13, 2018. 	ICR1, Exhibit (Ex.) A. 	Regarding item (4), which directed the Agency to restore to
Petitioner any leave he had to use as a result of the unlawful discrimination, the Agency reported
that its action on this item was pending. With regard to item (5), the Agency reported that it had
issued several checks representing attorney’s fees and costs totaling $113,789.88. ICR1, Ex. B.

2020000083	4
As to item (6), the Agency reported that the training was provided to the Agency’s National EEO
Investigative Services Office staff on July 24, 2018 and provided the training agenda and roster of
attendees. ICR1, Ex. C. Concerning item (7), which directed the Agency to consider disciplinary
action against the National EEO Investigative Services managers responsible for the inadequate
investigation, the Agency reported that it had thoroughly reviewed all of the relevant information
and had concluded that no discipline would be forthcoming due to the insufficiency of evidence
needed to support a disciplinary action. ICR1, Ex. D. Regarding item (8), the Agency reported
that the required notice was posted in both hard copy format and electronic format from July 10,
2018 to September 8, 2018. ICR1, Ex. E.
Via emails dated May 8 and September 5, 2019, the Commission notified the Agency that it still
had not received a compliance report from the Agency with respect to remaining items (1), (2),
and (4). On September 19, 2019, Petitioner submitted the petition for enforcement at issue. On
March 3, 2020, the Agency submitted a second interim compliance report (ICR2) in which it
provided a PS Form 50 establishing that, in accordance with item (1) of the Commission’s May
17, 2018 order for relief, Petitioner had been placed in the EAS-20 Customer Services Manager
position retroactive to November 1, 2014. 	The effective date of the personnel action was
December 26, 2018. ICR2, Ex. A. As to item (2), which pertains to back pay, the Agency reported
that its determination of Petitioner’s entitlement to a back pay award was still pending. Concerning
item (4), which pertains to restoration of lost leave, the Agency reported that it had restored to
petitioner 345 hours of annual leave and 1,590 hours of sick leave. ICR2, Ex. B.
ANALYSIS AND FINDINGS
After reviewing the two interim compliance reports and supporting documentation, we find that
the Agency has complied with items (1) and (3) through (8) in the Commission’s order for relief
dated May 17, 2018). 	The Agency has yet to provide documentation establishing that it had
complied with item (2) and awarded Petitioner the back pay and benefits that accrued between
November 1, 2014 and December 26, 2018.
An award for back pay must 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 pursuant to a finding of discrimination or, in this case, a default judgment. Potter v. Dep’t
of Agric., EEOC Appeal No. 0720120029 (Sept. 10, 2013), req. for recon. den. EEOC Request
No. 0520140083 (May 9, 2014). 	It must also include any subsequent career-ladder promotions
that a Petitioner likely would have received if he had been selected for the position in the first
instance. See, e.g., Clay W. v. Dep't of the Army, EEOC Appeal No. 0120161031 (June 21, 2018).
In 	addition, 	it 	must 	include all 	benefits 	that 	otherwise 	would 	have 	accrued 	absent 	the
discrimination, including, but not limited to, sick or annual leave, health insurance, Thrift Savings
Plan and retirement contributions, awards, training, and step increases. 	Kelly A. v. Dep’t of
Veterans Affairs, EEOC Appeal No. 0120171256 (Mar. 19, 2019). In addition, where appropriate,
it must include enough to cover any additional tax liability that arose from receiving a lump-sum
payment in a single tax year that put Petitioner in a higher tax bracket for that year. Isabell G. v.

2020000083	5
Dep’t of Justice, EEOC Petition No. 0420170026 (Dec. 8, 2017). The Agency has yet to submit
any documentation establishing that the Agency calculated, determined, or awarded Petitioner to
which he was entitled by the AJ’s entry of default judgment against the Agency. We will therefore
enter an order directing the Agency to do so within 60 days of the date this decision is issued.
CONCLUSION
Based upon a review of the evidentiary record currently before us, the Commission has determined
that the Agency has not complied with item (2) of its order for relief in Appeal No. 0720180001.
Accordingly, Petitioner’s petition for enforcement is GRANTED.
ORDER (D0617)
The Agency shall determine the appropriate amount of back pay, with interest, and other benefits
due the Petitioner, pursuant to 29 C.F.R. § 1614.501, no later than sixty (60) calendar days from
the date this decision is issued. 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 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 further directed to submit a report of compliance in digital format as provided in
the statement entitled "Implementation of the Commission's Decision." 	The report shall be
submitted via the Federal Sector EEO Portal (FedSEP). 	See 29 C.F.R. § 1614.403(g). Further,
the report must 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.
ATTORNEY'S FEES (H1016)
If Petitioner has been represented by an attorney (as defined by 29 C.F.R. § 1614.501(e)(1)(iii)),
he 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 the date this
decision was issued. 	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 (K0719)
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

2020000083	6
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
Petitioner and his/her representative.
If the Agency does not comply with the Commission’s order, the Petitioner may petition the
Commission for enforcement of the order. 29 C.F.R. § 1614.503(a). The Petitioner 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 Petitioner 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.
Failure by an agency to either file a compliance report or implement any of the orders set forth in
this decision, without good cause shown, may result in the referral of this matter to the Office of
Special Counsel pursuant to 29 C.F.R. § 1614.503(f) for enforcement by that agency.
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 (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.

2020000083	7
Such requests do not alter the time limits for filing a civil action (please read the paragraph titled
Petitioner’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
October 5, 2020
Date