Complainant,v.Patrick R. Donahoe, Postmaster General, United States Postal Service (Southwest Area), Agency.

Equal Employment Opportunity Commission

Sep 13, 2013

0120111944 (E.E.O.C. Sep. 13, 2013)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

,
Complainant,

v.

Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Southwest Area),
Agency.

Appeal No. 0120111944

Hearing No. 340-2003-03463X

Agency No. 1F-927-0061-02

DECISION

On January 10, 2011, Complainant filed an appeal from the Agency’s December 23, 2010,
final decision concerning his equal employment opportunity (EEO) complaint alleging
employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973
(Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. For the following reasons, the
Commission VACATES the Agency’s final decision.

BACKGROUND

On October 1, 2002, Complainant filed an EEO complaint alleging that the Agency
discriminated against him on the basis of disability when the Agency: sent him for a psychiatric
Fitness for Duty Exam, in October, 2001; placed him in off-duty status on October 29, 2001;
requested extensive medical records; and issued a Notice of Removal for failure to follow
instructions and failure to provide acceptable medical documentation in 2002.

While the case was pending before an EEOC Administrative Judge (AJ), Complainant’s motion
to amend his complaint was granted. Complainant’s complaint was amended to include his
claim that he was subjected to discrimination based on disability and in reprisal for protected
EEO activity with regard to: the Agency’s October 7, 2003 contact with the California
Department of Motor Vehicles (DMV); the Agency's September 2004 contact with
Complainant's then-current employer, Alpha Environmental; the Agency's May 2005 DMV
falsification charge; and the Agency's actions leading up to the June 3, 2005 arrest of
Complainant.

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On August 3, 2007, the AJ issued a decision finding the Agency subjected Complainant to
discrimination and retaliation. On September 30, 2007, the AJ ordered the Agency, among
other relief, to pay Complainant back pay for the period since he was placed on AWOL, less
any amounts actually earned; pay interest on back pay, and provide all other benefits,
including retroactive seniority, under pertinent Office of Personnel Management Regulations
and 29 C.F.R. § 1614.501; pay Complainant the sum of $75,000 as non-pecuniary,
compensatory damages; pay Complainant an amount to compensate him for the tax
consequences of a lump sum wage payment, according to proof to be provided by
Complainant; and pay attorney’s fees and costs consistent with the AJ’s decision.

Subsequently, the Agency filed an appeal with the Commission challenging the AJ’s award of
attorney’s fees. In EEOC Appeal No. 0720080026 (April 30, 2009), the Commission found
the Agency’s appeal of the AJ’s decision was untimely filed and dismissed the Agency’s
appeal. The Commission ordered the Agency to fully comply with the AJ's September 30,
2007 decision, which it stated subsequently became the Agency's final action.

The Order also specified, in pertinent part, that within 30 days after this decision becomes
final, to the extent it had not already done so, the Agency was to take the following actions:

1. Pay Complainant back pay for the period since he was placed on AWOL, less any
amounts actually earned;

2. Pay interest on back pay and provide all other benefits, including retroactive seniority,
under pertinent Office of Personnel Management Regulations and 29 C.F.R.
§1614.501;

. . . .

5. Pay to Complainant the sum of $75,000 as non-pecuniary, compensatory damages;

6. Pay Complainant an amount to compensate him for the tax consequences of a lump-sum
wage payment, according to proof to be provided by Complainant.

Complainant also filed an appeal with the Commission. In EEOC Appeal No. 0120082503
(April 30, 2009), the Commission dismissed Complainant’s appeal as untimely filed.

Complainant requested reconsideration of EEOC Appeal Nos. 0720080026 and 0120082503.
In EEOC Request Nos. 0520090475, 0520090476 (November 4, 2009), the Commission
denied both requests. The Commission restated its prior Order.

The record contains the Agency’s “Back Pay Report” dated March 16, 2009. This report
indicates back pay was calculated from October 27, 2001, Pay Period (PP) 23/2001, through
January 21, 2008, PP 3/2008. This report shows a per period breakdown of Complainant’s
salary, the hours the Agency determined Complainant would have worked, including Sunday
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Premium, and a category entitled Other, the rate of pay, and the gross amount of back pay.
The report indicates the Agency determined Complainant was due back pay for 13,000 regular
work hours, 2,608 hours of Sunday Premium, and 520 Other hours. The record also contains
a “Finance Summary” reflecting each pay period during the relevant time frame and listing a
breakdown for the following categories: Pay Period, PP Start, Gross, Retire, Basic Salary,
TSP (Thrift Savings Plan)-G, TSP-F, TSP-C, TSP 50+, Net, TCOLA. The finance summary
includes a monetary amount listed under TSP-G for all of the pay periods listed except, PP 27-
2004 through PP 03-2006 and PP 03-2008.

A “Payment Summary” indicates the Agency determined Complainant’s gross back pay was
$293,931.61. The summary indicates the Agency deducted outside earnings of $44,207.01 for
an adjusted gross amount of $249,724.60 ($293,931.61 - $44,207.01). The summary shows
the Agency determined Complainant owed $67,043.35 in taxes on that back pay. The Agency
determined Complainant’s voluntary deductions for that time period included $3,169.89 in
union dues, $2,156.71 in retirement, and $46,150.14 in TSP for a total of $51,476.74 in
voluntary contributions. The summary listed an involuntary deduction of $6,447.12 for child
support. The Agency determined Complainant’s net back pay amount was $124,757.39
($249,724.60 – $67,043.35 - $51,476.74 - $6,447.12). The Agency also determined
Complainant was due $68,907.03 in interest on the back pay award.

The record contains a “Back Pay Report” dated October 22, 2010. This report indicates the
amount of overtime the Agency determined Complainant was due from October 27, 2001,
through January 21, 2008. Specifically, the Agency stated Complainant was due a total of
1,112.75 hours of overtime resulting in total gross back pay for overtime equaling $35,444.55.
The Agency determined the tax withholding on this amount was $12,635.99. The Agency
found Complainant’s net back pay amount for lost overtime was $22,808.56 ($35,444.55 -
$12,635.99). The report shows that the following pay periods were excluded: PP 23 – 24 for
2003, PP 20 – 13 for 2004, PP 18 – 20 for 2004, PP 22 – 24 for 2004, PP 4 – 7 for 2006, PP
10-12 for 2007, PP 2 – 3 for 2002, PP 5 for 2002, PP 7 – 10 for 2002, PP 20 – 21 for 2002,
PP 3 – 14 for 2003. The Agency determined Complainant was due $9,797.75 in interest on
the back pay award for lost overtime.

The Agency also determined the adverse tax consequences for Complainant on his back pay for
receiving a lump sum in 2008 and 2009. The Agency noted that the adverse tax consequences
did not cover tax liability associated with the attorney’s fee payment, the damages payment, or
interest payments, or the 401k overpayment claimed by Complainant. The Agency’s Eagan
Accounting Service Center (ASC) determined that the adverse tax consequences of
Complainant receiving the back pay as a lump sum was $24,764 in Federal (income) taxes and
$8,466 in State (income) taxes, which totals $33.230. The Agency also stated that if spread
out over the back pay years, Complainant would have had to pay an additional $12,271 in
Social Security taxes. The Agency stated that if Social Security tax savings were taken into
consideration, the total adverse tax consequences would be $20,959 ($33,230 - $12,271). On
October 1, 2010, the Agency issued a check in the amount of $20,959 to Complainant for
adverse tax consequences.
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On December 23, 2010, the Agency issued a final decision.1

The Agency noted that
Complainant was provided a report of compliance on November 2, 2009. The Agency
addressed two issues in its final decision which Complainant disputed: (1) the calculation of
overtime hours paid to him; and (2) the amount due to him as a result of adverse tax
consequences resulting from the payment of back pay as a lump sum.
With regard to overtime, the Agency noted that overtime hours were paid to Complainant by
check dated July 29, 2009. The Agency explained Complainant was paid for a total of
1,112.75 hours of overtime during the back pay period of October 27, 2001 (PP 23, Week
(WK) 2, 2001) through January 21, 2008 (PP3, WK1, 2008).

The Agency noted Complainant provided some, but not all, of the pay check stubs for
Comparative 2. The Agency stated it reviewed all the pay roll records for Comparative 2 and
determined that Comparative 2 worked 1,224.91 of overtime during the back pay period. The
Agency stated Comparative 2 did not work the same hours and off days as Complainant would
have worked during the back pay period. The Agency noted Comparative 2 had Sunday and
Monday off days and stated as a result his overtime would vary from an employee who worked
the same schedule as Complainant due to variations in the work needs and availability of other
employees.

The Agency stated that it used Comparative 1, who worked the same hours and had the same
Friday/Saturday days off as Complainant would have had during that period. The Agency
produced an affidavit from a Supervisor of Maintenance Operations who supervised
Complainant and Comparative 1 and stated both of them were assigned as custodians at the
same facility with the same work hours and same off days. The Supervisor stated that
Comparative 2 was a custodian who had different days off than Complainant so the overtime
he worked would not have been comparable to Complainant. Rather, she stated the overtime
worked by Comparative 1 during the back pay period was a more accurate reflection of the
overtime that Complainant would have worked during the back pay period. The Agency noted
that Comparative 1 worked a total of 1,018.71 hours of overtime. The Agency noted
Complainant was paid for more overtime hours than Comparative 1. The Agency stated
Complainant has been paid all overtime he is entitled to under the EEOC decision.

Additionally, the Agency noted that its Accounting Service Center (ASC) calculated the
adverse tax consequences associated with back pay payments made to Complainant in tax years
2008 and 2009, and determined the adverse tax consequence would be $20,959.

The Agency noted that in correspondence dated August 9, 2010, Complainant provided
information from a tax attorney which disputed the calculation of the adverse tax consequences

1 The Agency noted its December 23, 2010 final decision cancelled and superseded its October
15, 2010 final decision.
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made by the Agency’s Sr. Accountant with the Agency’s ASC. The Agency noted that its Sr.
Accountant reviewed the calculations from Complainant’s tax attorney. The Agency stated it
concurred with the approach and calculations made by its Sr. Accountant.

On appeal, Complainant argues that the Agency failed to provide a clear explanation of
whether all back pay elements have been met. Complainant states that an award of back pay
requires the Agency to make retroactive tax-deferred contributions to his Thrift Savings Plan
(TSP) account during the back pay period. He notes that in March of 2009, he obtained
information direct from his TSP which he states showed gross adjustments to his TSP accounts
and indicated he could not determine if all appropriate contributions had been made to his TSP.
Complainant contends the Agency has not provided its calculations or paperwork to show a pay
period by pay period breakdown of each parties’ contributions so that Complainant can
determine how the gross TSP contributions were derived or whether they were accurate.

Complainant also states that the Agency did not make any of his requested contributions for the
last pay period in 2004 through the third pay period in 2006. Additionally, he states that the
Agency has not explained its calculations including the lost interest on his TSP account.
Moreover, Complainant states that the Agency has not provided information showing its
calculations of the earnings that the account would have accrued during the relevant back pay
period or that it made up those lost earnings on his TSP account.

Complainant also states it is not clear if the Agency is offering him TSP only on the amount of
back pay calculated after deducting “outside earnings” as mitigation or if he is getting the full
TSP opportunity to make TSP contributions on the entire amount of Agency earnings (without
mitigation) he would have earned during the back pay period. Complainant argues it is unclear
if the Agency is making its matching contributions or its 1% automatic contributions based on
the full amount of Agency earnings or the full amount less mitigation.

Complainant notes his 2002 tax return shows $16,197 in income from an early TSP
withdrawal, which he states incurred an approximate $1,620 in tax liability for an early TSP
withdrawal tax penalty. Complainant states this was a TSP withdrawal necessitated by being
placed off work. He claims the Agency must make him whole for the lost contribution
resulting from his early TSP withdrawal.

Complainant also raises several arguments with regard to the overtime he claims he is due
pursuant to the award of back pay. Complainant notes that he presented Comparative 2’s
partial overtime records to demonstrate that the Agency’s initial claim of “no overtime” during
the six and a half year back pay period was false. Complainant argues that the Agency
arbitrarily chose Comparative 1 rather than comply with its own policy as stated in Postal
ELM § 436.41(a)(1). Complainant notes that ELM § 436.41(a)(1), states that when
determining back pay, “overtime hours and/or night differential, as applicable, are determined
by averaging the number of hours that other employees of the office with the same employment
status were assigned during the back pay period.” Thus, Complainant states the issue is not
only what overtime was available to Comparative 1 or Comparative 2, but what overtime was
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available to those similarly situated peers during the time Complainant should have been at
work.

Complainant notes the Agency contemporaneously prepares “Flash Reports” and other reports,
which show the daily, weekly, and monthly use of overtime for each tour and pay location in a
facility. Complainant states these “Flash Reports” would show the actual overtime worked by
Complainant’s comparatives which could then be averaged to determine the overtime back pay
due Complainant.

Complainant also states that even if the Agency properly used Comparative 1, the Agency still
shorted Complainant 135 hours of overtime during the relevant period. For example,
Complainant cites the Summary Page for Comparative 1’s overtime showing that during the
first part of the relevant back pay period, Comparative 1 earned 30.02 hours of overtime in
2001 (PPs 24-26), 152.03 hours in 2002, and 167.92 hours in 2003. In contrast, Complainant
notes the Agency credited him with 24 hours in 2001, 78.98 hours for 2002, and 110.48 hours
for 2003.

In addition, Complainant notes that the holiday season is the busiest time for the Agency.
Complainant claims that Comparative 1 is an improper comparative because he was off work
on annual leave or sick leave during much of the holiday season, which uses the most
overtime. Complainant states that Comparative 1 also was off work during the same holiday
time period throughout the back pay period, apparently taking his vacation around PP-25 of
each of the holiday seasons from 2001 through 2007.

Complainant also claims the Agency failed to properly calculate the adverse tax consequences
of its lump sum award of back pay. Complainant argues the entire 2008 tax consequences
calculations are flawed because the Agency failed to make proper deductions for tax deferred
TSP contributions as part of Complainant’s back pay award. In addition, Complainant claims
the Agency’s methodology for calculating adverse tax consequences was incorrect.
Additionally, Complainant argues that the Agency’s failure to deduct from his 2008 lump sum
payment his TSP tax deferred contributions for Tax Year 2005 (and a little in 2004 and 2006)
caused him to incur additional taxes he would not have incurred but for the Agency’s lump
sum miscalculation.

Complainant also requests the Agency be ordered to pay interest on the compensatory damages
award of $75,000 originally ordered by the AJ in her September 30, 2007 decision.
Complainant notes that the Agency did not mail the check for compensatory damages until
June 5, 2008. Similarly, Complainant requests interest on the award of attorney’s fees and
costs in the amount of $97,811.77 ordered by the AJ in her September 30, 2007 decision.
Complainant notes the Agency did not issue its check for attorney’s fees and costs until June 2,
2009. Complainant seeks interest on both the compensatory damages and attorney’s fees
awards from November 15, 2007, the date he states the AJ’s decision became final, through
the date payment was sent to him by the Agency.

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Finally, Complainant claims the Agency failed to address his attorney’s fee petition arising
from the Commission’s decision in EEOC Appeal No. 0720080026 (April 30, 2009).
Complainant argues his attorney had to continue to work to obtain the TSP, back pay,
overtime, and interest due him.

ANALYSIS AND FINDINGS

As a result of the AJ’s finding of discrimination, the Agency was ordered to pay Complainant
back pay for the period since he was placed on AWOL, less any amounts actually earned. The
Agency was also ordered to pay interest on that back pay and provide all other benefits,
including retroactive seniority, under pertinent Office of Personnel Management Regulations
and 29 C.F.R. § 1614.501.

Complainant acknowledges that the Agency paid him $124,967.21 in back pay (plus
$68,907.03 in interest) and $35,444.55 in back pay for overtime (plus $9,797.74 in interest).
However, he contends that all of the Agency’s back pay calculations were incorrect.

TSP

Initially, we address Complainant’s contention that the Agency failed to show that it properly
calculated his TSP as part of the back pay award.

Gross back pay includes all forms of compensation including fringe benefits such as pension.
Robinson v. Dep’t of the Treasury, EEOC Petition No. 04980006 (July 2, 1998). TSP is a
tax-deferred investment retirement plan for federal employees. The Commission has held that
‘make whole’ relief requires the agency to make retroactive tax-deferred contributions to
petitioner's TSP account during the back pay period. Howgate v. U.S. Postal Service, EEOC
Petition No. 04990031 (February 4, 2000) (citing Fiene v. U.S. Postal Service, EEOC Petition
No. 04920009 (September 3, 1992)). The Commission has also held that, to the extent a
complainant would have received government contributions to a retirement fund as a
component of his salary, he is entitled to have his retirement benefits adjusted as part of his
back pay award, including receiving interest which the account would have earned. Id. (citing
Robinson, supra; Lee v. Dep’t of the Army, EEOC Petition No. 04980020 (October 1, 1998);
Korchnak v. U.S. Postal Service, EEOC Petition No. 04960028 (December 19,
1996)(petitioner who was terminated before becoming eligible for TSP entitled to enrollment in
the program); Wrigley v. U. S. Postal Service, EEOC Petition No. 04950005 (February 15,
1996)).

While the “Back Pay Report” dated March 16, 2009, includes a monetary amount listed under
TSP-G for many of the pay periods, we note there was no amount listed under TSP-G for PP
27-2004 through PP 03-2006 and PP 03-2008, apparently indicating that the Agency
determined Complainant was not entitled to any TSP contributions for those pay periods. It is
not clear why the Agency did not list TSP-G amounts for those pay periods. Moreover, the
Agency does not explain how it calculated the TSP-G amounts for the remaining pay periods or
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provide evidence that it paid the appropriate amount into Complainant’s TSP account. The
record is also unclear as to whether the Agency matched Complainant's contributions or
provided the Agency automatic 1% TSP contribution.

Similarly, it is unclear whether the Agency has paid the earnings which Complainant’s TSP
account would have accrued but for the discrimination. On remand, the Agency is required to
show that it calculated and paid these earnings. See Malek v. Dep’t of Health and Human
Services, EEOC Petition No. 04990009 (August 19, 1999). In its supplemental investigation,
the Agency shall clearly document all Agency TSP contributions and for all lost earnings on
Complainant’s TSP account. Moreover, the Agency shall clearly document all deductions
made from Complainant’s back pay award consisting of employee TSP contributions,
specifically indicating how it calculated these amounts. Additionally, the Agency shall provide
evidence showing whether it has reimbursed the lost earnings to Complainant’s TSP account.

Moreover, to the extent Complainant is requesting interest for the Agency's delay in providing
him the requisite TSP contributions, the Commission has held that Complainant is not
additionally entitled to interest on these amounts, inasmuch as the award of earnings which
would have accrued on his account will make him whole for these losses. Munno v. Dep't of
Agriculture, EEOC Petition No. 04A10042 (June 18, 2001). Thus, we find the Agency is not
required to pay Complainant interest on the retroactive TSP contributions, apart from the
earnings he would have received on the TSP contributions during the relevant timeframe.

Complainant also states it is not clear if the Agency is offering him TSP only on the amount of
back pay calculated after deducting “outside earnings” as mitigation or if he is getting the full
TSP opportunity to make TSP contributions on the entire amount of Agency earnings (without
mitigation of outside earnings) he would have earned during the back pay period. Complainant
states it is also unclear if the Agency is making its matching contributions or its 1% automatic
contributions based on the full amount of Agency earnings (without mitigation).

We note the Agency does not address whether it offered Complainant the opportunity to make
full TSP contributions on the entire amount of Agency earnings (without mitigation) and
whether the Agency’s matching contributions or its 1% Agency automatic contribution was
based on the full amount of Agency earnings (without mitigation).

Upon review, we find that in order to make Complainant whole, to the extent Complainant did
not earn retirement benefits from his outside employment during the relevant time, the Agency
should have allowed him the opportunity to make TSP contributions on the full amount of lost
wages and the Agency should have made matching contributions and its 1% Agency automatic
contribution based on the total amount of lost wages without mitigating outside earnings. We
find it is unclear from the record whether the Agency offered Complainant that opportunity or
whether Complainant earned retirement benefits from the other jobs he worked during the
relevant time frame.

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In addition, Complainant notes his 2002 tax return shows $16,197 in income from an early
TSP withdrawal, which he states incurred an approximate $1,620 in tax liability for an early
TSP withdrawal tax penalty. Complainant states this was a TSP withdrawal necessitated by
being placed off work. He claims the Agency must make him whole for the lost contributions
resulting from his early TSP withdrawal.

We reject Complainant’s contention that the Agency is required to make him whole for the lost
contributions resulting from his early TSP withdrawal in tax year 2002. Specifically, we note
that the Commission’s Order did not require the Agency to pay Complainant for the tax
liability for an early TSP withdrawal penalty. Nor did the Commission’s Order specify that
the Agency was required to make Complainant whole for the lost contributions resulting from
his early TSP withdrawal.

Overtime

The Commission has held that a back pay award should encompass all forms of compensation
due Complainant, to include overtime. The Agency states it relied on the overtime hours
worked by Comparative 1 during the relevant period. The Agency provided evidence that
Comparative 1 worked a total of 1,018.71 hours of overtime while it awarded Complainant
overtime totaling 1,112.75 hours of overtime, without an explanation as to how it reached a
number higher than the overtime hours worked by Comparative 1. In addition, the Agency
excluded from its overtime back pay calculation the following pay periods: PP 23 – 24 for
2003, PP 20 – 13 for 2004, PP 18 – 20 for 2004, PP 22 – 24 for 2004, PP 4 – 7 for 2006, PP
10-12 for 2007, PP 2 – 3 for 2002, PP 5 for 2002, PP 7 – 10 for 2002, PP 20 – 21 for 2002,
and PP 3 – 14 for 2003. The Agency provided no explanation for excluding those pay periods
from overtime back pay consideration. Moreover, the Agency does not address Complainant’s
contention that Comparative 1 alone should not be used because he was off on annual leave or
sick leave during much of the holiday season, which uses the most overtime. Nor did the
Agency address Complainant’s argument that its own policy provided that overtime hours
should be determined by averaging the number of hours that other employees of the same
office with the same employment status were assigned during the back pay period.

Upon review, the back pay award for the denial of overtime should be calculated based upon
the average amount of overtime worked by similarly situated employees. Allen v. U.S. Postal
Service, EEOC Petition No. 04990003 (May 24, 2002) (citing Allen v. Dep’t of the Air Force,
EEOC Petition No. 04940006 (May 31, 1996)).

Adverse Tax Consequences

Pursuant to the Commission’s Order, the Agency was required to pay Complainant an amount
to compensate him for the tax consequences of a lump-sum wage payment, according to proof
to be provided by Complainant. We note Complainant objected to the calculations conducted
by the Agency which concluded that the adverse tax consequences associated with back pay
payments made to Complainant in tax years 2008 and 2009 was $20,959.
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The Commission has held that, under both legal and equitable theories, an award to cover
additional tax liability from a lump sum payment of back pay is available to complainants.
Van Hoose v. Dep’t of the Navy, EEOC Appeal Nos. 01982628 and 01990455 (August 22,
2001); Goetze v. Dep’t of Navy EEOC Appeal No. 01991530 (August 22, 2001); Holler v.
Dep’t of the Navy, EEOC Appeal Nos. 01982627 and 01990407 (August 22, 2001). We note,
however, that the Commission has not recognized any entitlement to awards to cover tax
liability for interest, attorney’s fees, or compensatory damages. In the case of a lump sum
back pay award individuals are compensated for the extra tax they are required to pay as a
result of receiving a lump sum award, as opposed to the actual amount they would have to pay
if they had received the pay over a period of time, usually several years. It is the receipt of the
pay in one lump sum that causes the extra tax liability, not the back pay award itself. In the
case of compensatory damages, attorney’s fees, and interest, there is no option to receive
partial payments over time. Thus, there are no additional tax consequences to awards of
compensatory damages, attorney’s fees, and interest, and therefore, no entitlement to
compensation for such negative tax consequences. Accordingly, Complainant’s claim for
compensation for adverse tax consequences is only available on any lump sum payment of back
pay. However, we cannot provide a precise determination of the actual adverse tax
consequences until the Agency provides a clear explanation of its back pay and corrections
where appropriate.

Interest on Compensatory Damages and Attorney’s Fees and Costs

Next, we address Complainant’s request for interest on compensatory damages and attorney’s
fees and costs awarded in the AJ’s September 30, 2007 decision. Following the AJ’s decision,
we note that both the Agency and Complainant filed appeals with the Commission. The
Commission ultimately issued decisions on both appeals on April 30, 2009, finding both
appeals were untimely filed. Subsequently, Complainant filed requests for reconsideration of
both decisions. The Commission ultimately denied both requests for reconsideration on
November 4, 2009. We note that the filing of the appeals and requests for reconsideration
delayed the Agency’s obligation to pay compensatory damages and attorney’s fees and cost.
Once the Commission issued its November 4, 2009 decision, the Agency had 30 days to pay
compensatory damages and attorney’s fees and costs. Complainant acknowledges that he
received payment for compensatory damages in June 2008, and payment for attorney’s fees
and costs in June 2009, which was prior to the Commission’s November 4, 2009 decision.
Thus, we find Complainant is not entitled to interest on compensatory damages or the
attorney’s fees and costs as awarded by the AJ.

Attorney’s Fee Petition

Complainant contends the Agency did not address his petition for attorney’s fees and costs
arising from the Commission’s decision in EEOC Appeal No. 0720080026 (April 30, 2009).
Complainant supplies a copy of the relevant fee petition dated May 15, 2009. We note the
record shows that on June 2, 2009, the Agency transmitted payment to Complainant in the
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amount of $97,811.77 for attorney’s fees and costs associated with its final action. That
payment was not in response to the May 15, 2009 petition, but was in response to an earlier
petition. However, we note the Agency has not responded to Complainant’s contention
regarding his May 15, 2009 petition for attorney’s fees and costs. Thus, we remand this
matter to the Agency.

CONCLUSION

Accordingly, the Agency’s final decision is VACATED and the matter is REMANDED to the
Agency for a supplemental investigation.

ORDER

Within 90 days of the date this decision becomes final the Agency shall:

1. Provide Complainant and the Commission with a detailed statement of the Agency's
calculations and payments made on Complainant's TSP account. Specifically, the
Agency shall clearly document its calculations for all Agency TSP contributions and for
lost earnings on Complainant's TSP account. Moreover, the Agency shall clearly
document all deductions made from Complainant's back pay award consisting of
employee TSP contributions, specifically indicating how it calculated these amounts.
The Agency shall provide evidence showing whether it has reimbursed the lost earnings
to Complainant's account.

2. Recalculate Complainant’s back pay (with interest, if applicable) pursuant to 29 C.F.R.
§1614.501. Specifically, in determining Complainant’s back pay for overtime, the
Agency shall include the average amount of overtime worked by similarly situated
employees. The Agency shall also provide an explanation of why it is excluding certain
pay periods as discussed in this decision from the overtime back pay calculation. The
Agency shall also provide an explanation as to whether Comparative 1 is similarly
situated to Complainant due to, according to Complainant, the amount of leave used by
Comparative 1 during the holiday season.

3. Provide a detailed statement of all of its calculations, clarifying how Complainant's
back pay award (including benefits) was reached, to Complainant and the Commission.
The statement shall consist of a clear and concise, “plain language” statement of the
methods of calculation used for the present matter and actual calculations specifying the
formulas and methods used.

4. Compensate Complainant for the increased tax liability, if any, that he stands to sustain
as a result of being paid a lump sum back pay award. This is an equitable remedy. The
burden of proof to establish the amount of additional tax liability is on Complainant.
The calculation of additional tax liability must be based on the taxes Complainant would
have paid had he received the back pay in the form of regular salary during the back
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pay period, versus the additional taxes he will pay due to receiving the back pay lump
sum award. Complainant must submit proof of this amount to the Agency within 30
calendar days of his receipt of the Agency’s calculations and/or payment of his back
pay award (whichever Complainant receives first) pursuant to this decision. If the
Agency timely receives this evidence, it must issue a check for the increased tax
liability within 60 calendar days of its receipt of the evidence or issue a decision finding
there were no increased tax consequences. Complainant must cooperate with requests
by the Agency for assistance in making the calculations.

5. Issue a decision regarding Complainant’s May 15, 2009 petition for attorney’s fees and
costs in accordance with 29 C.F.R. §1614.501(e).

6. Issue a new decision as to whether it was complied with corrective actions (1) – (5).

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 actions in accordance with this Order.

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 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.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION

(M0610)
The Commission may, in its discretion, reconsider the decision in this case if the Complainant
or the Agency submits a written request containing arguments or evidence which tend to
establish that:
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1. The appellate decision involved a clearly erroneous interpretation of material
fact or law; or
2. The appellate decision will have a substantial impact on the policies, practices,
or operations of the Agency.

Requests to reconsider, with supporting statement or brief, must be filed with the Office of
Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision or within
twenty (20) calendar days of receipt of another party’s timely request for reconsideration. See
29 C.F.R. § 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R.
Part 1614 (EEO MD-110), at 9-18 (November 9, 1999). All requests and arguments must be
submitted to the Director, Office of Federal Operations, Equal Employment Opportunity
Commission, P.O. Box 77960, Washington, DC 20013. In the absence of a legible postmark,
the request to reconsider shall be deemed timely filed if it is received by mail within five days
of the expiration of the applicable filing period. See

29 C.F.R. § 1614.604. The request or
opposition must also include proof of service on the other party.
Failure to file within the time period will result in dismissal of your request for reconsideration
as untimely, unless extenuating circumstances prevented the timely filing of the request. Any
supporting documentation must be submitted with your request for reconsideration. The
Commission will consider requests for reconsideration filed after the deadline only in very
limited circumstances. See

29 C.F.R. § 1614.604(c).
COMPLAINANT’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
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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

September 13, 2013
Date