0420170005
07-25-2018
Damon Q.,1 Petitioner, v. Megan J. Brennan, Postmaster General, United States Postal Service (Southeast Area), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Damon Q.,1
Petitioner,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Southeast Area),
Agency.
Petition No. 0420170005
Previous Petition No. 0420130028
Request No. 0520110550
Appeal No. 0120082510
Hearing No. 420-2007-00164X
Agency No. 4H-350-0008-07
DECISION ON SECOND PETITION FOR ENFORCEMENT
On February 8, 2017, the Equal Employment Opportunity Commission (EEOC or Commission) docketed a petition for enforcement to determine whether the Agency has complied with the Orders set forth in EEOC Petition No. 0420130028 (November 19, 2015) and EEOC Appeal No. 0120082510 (December 22, 2010), request for reconsideration denied, EEOC Request No. 0520110550 (September 6, 2012). The Commission accepts this petition for enforcement pursuant to 29 C.F.R. � 1614.503. For the reasons stated below, the Commission GRANTS IN PART and DENIES IN PART Petitioner's Petition for Enforcement.
BACKGROUND
In EEOC Appeal No. 0120082510, the Commission found that the Agency discriminated against Petitioner and another Complainant on the bases of race (African American) and sex (male) in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq., when it terminated their employment as Part-Time Flexible City Carriers on October 24, 2006. The Commission ordered the Agency to take remedial actions, including the following:
(1) The Agency shall offer Complainant[s] reinstatement to the position of City Mail Carrier, retroactive to the date of termination. The Agency shall allow Complainants not less than ten (10) business days to determine whether to accept the offer of reinstatement. Should either Complainant reject the offer of reinstatement, entitlement to back pay shall terminate as of that date of refusal.
(2) The Agency shall determine the appropriate amount of back pay, with interest, and other benefits due Complainants, pursuant to 29 C.F.R. � 1614.501, no later than sixty (60) calendar days after the date this decision becomes final. Complainants 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 checks to Complainants for the undisputed amount within sixty (60) calendar days of the date the Agency determines the amount it believes to be due. Complainants may petition for enforcement or clarification of the amount in dispute. The petition(s) 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."
EEOC Appeal No. 0120082510 (Dec. 22, 2010).
In a subsequent decision, the Commission ordered the Agency to pay Petitioner $175,000 in non-pecuniary compensatory damages. EEOC Appeal No. 0120130887 (May 31, 2013).
On January 10, 2013, the Agency issued Petitioner a check for $15,013.18 in net back pay. The Agency indicated on the check that the amount included 2,956.76 base hours and 369.43 overtime hours for October 24, 2006, to October 8, 2012. Petitioner's back pay report, dated January 11, 2013, reflects that the Agency offset $43,800 from his gross back pay based on his outside earnings. Petitioner's PS Form 50, processed on January 30, 2013, reflects that the Agency excluded the March 25, 2008, to October 8, 2012, time period from its back-pay computation. On February 15, 2013, the Agency issued Petitioner a $6,546.33 check for the interest on the back pay.
In his first Petition for Enforcement, Petitioner argued that the Agency (1) improperly deducted $43,800 in outside earnings from his back pay for the period October 24, 2006, to March 24, 2008; and (2) excluded the period March 25, 2008, to October 8, 2012, from its back-pay calculation. We found that the Agency properly deducted $43,800 in outside earnings from Petitioner's back-pay award. We also found, however, that the Agency improperly excluded the period March 25, 2008, to October 8, 2012, from its computation of back pay. We noted, among other things, that there was "no reason to exclude that time period based on Petitioner's inability to work. To the extent that Petitioner was unable to work, the medical documentation in the record for EEOC Appeal No. 0120130887 reflects that it was linked to his discriminatory termination by the Agency." We ordered the Agency to take the following action:
The Agency shall determine the appropriate amount of back pay, with interest, and other benefits due Petitioner, pursuant to 29 C.F.R. � 1614.501, within one hundred and twenty (120) calendar days from receipt of this decision. 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. The Agency's determination shall include back pay from the March 25, 2008 to October 8, 2012 time period. If there is a dispute regarding the exact amount of back pay and/or benefits, the Agency shall issue checks to Petitioner for the undisputed amount within one hundred and twenty (120) calendar days of the date the Agency determines the amount it believes to be due. Petitioner may petition for enforcement or clarification of the amount in dispute. The petition(s) 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."
EEOC Petition No. 0420130028 (Nov. 19, 2015).
The matter was assigned to a Compliance Officer and docketed as Compliance No. 0620160172 on December 2, 2015.
On July 15, 2016, the Agency issued Petitioner a check for $183,654.14 in net back pay. According to the Agency, this amount reflects payment for 9,480 base hours, 1,183 overtime hours, and 637 hours of "terminal leave" for the period March 25, 2008, to October 8, 2012. The Agency calculated Complainant's gross back pay to be $282,338.51; this amount included $16,412.88 for "terminal leave." The Agency deducted $1,800.85 for retirement and $96,883.52 for federal, state, Social Security, and Medicare taxes. On August 1, 2016, the Agency issued Petitioner a check for $57,014.40 for interest on the back pay.
Petitioner subsequently submitted the instant petition for enforcement.
CONTENTIONS IN PETITION
Petitioner, through his non-attorney representative, notes that the Agency has not explained its "terminal leave" calculation of 637 hours. He argues that the Agency should pay him for 736 hours of annual leave and 476 hours of sick leave for the period March 25, 2008, to October 8, 2012.
Petitioner also argues that he "is entitled to refund of offset payments plus interest." He states that he filed for disability retirement with the Office of Personnel Management (OPM) and that, "[a]fter exhausting all leave, and up to a year or more petitioner was placed on [leave without pay (LWOP)] status." According to Petitioner, the Agency "placed a government debt plus interest on the petitioner which was paid in full by offset and also damaged his credit."
In addition, Petitioner states that he "never received first full check as evidence of e-mail stating clock ring error." He submits copies of October 17, 2012, e-mails in which an Agency Training Technician informed an Agency Customer Service Supervisor that Petitioner was attending the Agency's City Carrier Academy, noted that Petitioner needed on-the-job training, and asked what time Petitioner should report to the Supervisor's office the next day. The Supervisor replied that Petitioner "is on the clock error report every day since he is a regular and the timekeeping system expects clock rings for him every day." Petitioner argues that he "should receive first check due to clock ring error."
Further, Petitioner asks that the Agency provide him with the "correct interest calculations." Stating that he receives a disability payment of $57.86 per month, Petitioner asks that the Agency "send corrective information to OPM." Finally, Petitioner requests "additional sanctions of Front Pay and Tax liability."
The Agency did not submit an argument in response to the Petition for Enforcement.
ANALYSIS AND FINDINGS
Annual and Sick Leave
The July 15, 2016, back-pay payment included payment for 637 hours of "terminal leave" for the period March 25, 2008, to October 8, 2012. Petitioner contends that the Agency should pay him for 736 hours of annual leave and 476 hours of sick leave for that period.
It is not clear how the Agency calculated the leave accrual. Accordingly, we will remand this matter to the Agency for a leave determination. On remand, the Agency should determine the amount of sick and annual leave that Petitioner would have earned during the entire back-pay period (October 24, 2006, to October 8, 2012) absent the discrimination. The Agency should provide a clear explanation of its leave calculation. It should identify Petitioner's sick- and annual-leave balances at the time of his removal, explain how much sick and annual leave Petitioner accrued in each pay period of the back-pay period, and clarify whether it paid Petitioner for any accrued leave when he was removed. To the extent that it has not already done so, the Agency should pay Petitioner for the annual leave that he would have earned absent the discrimination.
Although Petitioner requests payment for accrued sick leave, it is not clear if he is entitled to such payment. See Cecile S. v. U.S. Postal Serv., EEOC Petition No. 0420120013 (Nov. 4, 2015) ("The Agency provided that, normally, employees are not paid for their sick leave balance prior to termination, but an exception was made for Petitioner."); Brown v. Dep't of the Navy, EEOC Petitioner No. 0420120012 (June 5, 2013) ("While the Petitioner is not entitled to payment for unused sick leave, he is entitled to having his sick leave restored for the purposes of annuity calculations."). On remand, the Agency should determine whether, absent the discrimination, Petitioner would have received payment for accrued sick leave or would have received sick-leave/service credit for annuity purposes. To the extent that Petitioner would have received payment for the accrued sick leave, the Agency should pay Petitioner for the sick leave that he would have accrued absent the discrimination. To the extent that Petitioner would have received sick leave/service credit for annuity purposes, the Agency should notify OPM of the sick-leave accrual.
Refund of Offset Payments
Petitioner, who refers to a "government debt . . . which was paid in full by offset," requests a "refund of offset payments plus interest." It is not clear whether Petitioner is referring to an offset deducted from his back pay or to a matter that arose after the back-pay period. On remand, the Agency should give Petitioner an opportunity to clarify his request. The Agency then should explain why it engaged in the offset and whether it was related to the Commission's Order. To the extent that Petitioner is referring to an offset deducted from the back-pay payment, the Agency should provide a thorough explanation of the deduction.
Interest
The Commission's Order directed the Agency to provide Petitioner with back pay "with interest." The Agency issued Petitioner checks for $6,546.33 and $57,014.40 for interest. The Agency, however, has not explained its interest calculations. On remand, the Agency should provide a clear explanation of its interest computation. The Agency should identify the interest rate applied and the amount of interest paid per pay period.
Adverse Tax Consequences
Although unclear, it appears that Petitioner's reference to "tax liability" is a request for compensation for the adverse tax consequences related to his receipt of a lump-sum back-pay award.
The Commission has held that an award to cover additional tax liability from a lump-sum payment of back pay is available to petitioners. Goetze v. Dep't of the Navy, EEOC Appeal No. 01991530 (Aug. 22, 2001); Holler v. Dep't of the Navy, EEOC Appeal Nos. 01982627 and 01990407 (Aug. 22, 2001); Van Hoose v. Dep't of the Navy, EEOC Appeal Nos. 01982628 and 01990455 (Aug. 22, 2001). This award is available even if a decision does not explicitly order it. See Emerson S. v. United States Postal Serv., EEOC Petition No. 0420130026 (Nov. 20, 2015) (noting that decisions on petitions for enforcement have permitted claims for additional tax liability in cases where the Commission has not mentioned it in the original order); Cecile S. v. United States Postal Serv., EEOC Petition No. 0420120013 (Nov. 4, 2015) (agency erroneously found that petitioner was not entitled to an award for tax liability merely because AJ did not specifically order it as a remedy); Complainant v. Dep't of Veterans Affairs, EEOC Appeal No. 0120113877 (May 14, 2014) (complainant entitled to reimbursement for additional tax liability even though AJ's order was silent on the matter).
In the case of a lump-sum back-pay award, individuals are compensated for the extra tax that they are required to pay as a result of receiving a lump-sum award, as opposed to the actual amount of taxes that they would have paid if they had received the funds over a period of time, usually several years. It is the receipt of the funds in one lump sum that causes the extra tax liability, not the back-pay award itself. The Commission has found that a petitioner has the burden to prove the amount to which she or he claims entitlement, and courts have demanded probative calculations. The tax-liability calculation must be based on the taxes that the individual would have paid if he or she had received the back pay as a regular salary during the back-pay period. See Cottrell v. Dep't of Transp., EEOC Petition No. 04A30015 (Oct. 12, 2004) (citing Hukkanen v. Int'l Union of Operating Engineers, 3 F.3d 281, 287 (8th Cir. 1993); Barbour v. Medlantic Mgmt. Corp., 952 F. Supp. 857, 865 (D.D.C. 1997), aff'd, 132 F.3d 1480 (D.C. Cir. 1997)).
Petitioner is entitled to compensation for the proven tax consequences of his receipt of a lump-sum back-pay award.2 Because the Agency did not issue a determination concerning the amount due to Petitioner to compensate him for the additional tax liability, we will remand the matter to the Agency for such a determination.
On remand, the Agency should give Petitioner the opportunity to provide evidence concerning his entitlement to compensation for increased tax liability. Petitioner, who bears the burden of proof, must submit evidence showing the difference between the taxes that he paid on the lump-sum payment and the taxes that he would have paid had the salary been earned over time. See Darlene F. v. Soc. Sec. Admin., EEOC Petition No. 0420140010 (Apr. 8, 2016) ("It is Petitioner's burden to establish the amount of increased tax liability, if any."). That is, Petitioner must show more than the total tax liability arising from his receipt of the lump-sum award; he must show the differential between this tax burden and the taxes that he would have paid if he had received the back pay as part of his salary. Johnson v. Envtl. Prot. Agency, EEOC Petition No. 0420060035 (Nov. 5, 2007). Petitioner must "provide exact and detailed calculations showing the amount he is claiming." Emerson S. v. United States Postal Serv., EEOC Petition No. 0420130026 (Nov. 20, 2015); compare Stefan H. v. Dep't of Justice, EEOC Petition No. 0420150008 (Feb. 18, 2016) (agency ordered to compensate petitioner for additional tax liability where tax preparer's letter explained in detail the additional liability and a methodology for avoiding a continuing cycle of tax penalties) with Cecile S. v. United States Postal Serv., EEOC Petition No. 0420120013 (Nov. 5, 2015) (tax preparer's letter that listed amounts of increased tax liability for back-pay years but did not explain how the amounts were calculated or include documentation indicating how the figures were reached was insufficient to support entitlement to tax-consequences award). For example, Petitioner should submit detailed calculations showing the tax liability that he actually incurred for each year of the back-pay period, the tax liability that he would have incurred in each of those years if he had received the back pay in the form of a regular salary, and the tax liability that he incurred solely as a result of his receipt of the lump-sum back-pay award. Following receipt of Petitioner's claim and supporting documents, the Agency should issue a decision on the tax-liability matter.
Other Matters
Petitioner requests front pay and a "first check."
Petitioner is not entitled to front pay. The Commission's Orders did not direct the Agency to provide such relief.
In support of his request for a "first check," Petitioner submits an October 17, 2012, e-mail that refers to a clock-error report. This event occurred after the back-pay period, which ended October 8, 2012, and was not addressed in the Commission's Orders. Accordingly, we decline Petitioner's request.
CONCLUSION
Accordingly, based on a thorough review of the record; Petitioner's contentions in the Petition for Enforcement, including those not specifically addressed herein; and the Agency's response, the Commission GRANTS IN PART and DENIES IN PART Petitioner's Petition for Enforcement. The Commission REMANDS this matter to the Agency for further processing consistent with this decision and the ORDER below.
ORDER
The Agency is ordered to take the following actions, to the extent that it has not already done so, within one hundred and twenty (120) calendar days of the date this decision is issued.
1. The Agency shall calculate the annual leave that Petitioner would have accrued during the entire back-pay period (October 24, 2006, to October 8, 2012) absent the discrimination. The Agency shall provide a clear explanation of its leave calculation. The explanation shall identify Petitioner's annual-leave balances at the time of his removal, clarify whether the Agency paid Petitioner for any accrued leave when he was removed, and explain how much annual leave Petitioner accrued in each pay period of the back-pay period. The Agency shall pay Petitioner for the annual leave that he would have earned absent the discrimination.
2. The Agency shall calculate the sick leave that Petitioner would have accrued during the entire back-pay period (October 24, 2006, to October 8, 2012) absent the discrimination. The Agency shall provide a clear explanation of its leave calculation. The explanation shall identify Petitioner's sick-leave balance at the time of his removal and explain how much sick leave Petitioner accrued in each pay period of the back-pay period. The Agency shall ensure that Petitioner's personnel record reflects credit for the accrued sick leave.
3. The Agency shall determine whether, absent the discrimination, Petitioner would have received payment for accrued sick leave or would have received sick-leave/service credit for annuity purposes. To the extent that Petitioner would have received payment for the accrued sick leave, the Agency shall pay Petitioner for the sick leave that he would have accrued absent the discrimination. To the extent that Petitioner would have received sick leave/service credit for annuity purposes, the Agency shall officially notify OPM of the adjustments to Petitioner's sick-leave balance.
4. The Agency shall give Petitioner an opportunity to clarify his request for a refund of offset payments. The Agency shall provide an explanation, in plain language, of the reason for the offset and how the Agency calculated the amount of the offset.
5. The Agency shall provide an explanation, in plain language, of its calculation of interest on back pay. This explanation shall include a description of the interest rate applied and the amount of interest paid per pay period.
6. The Agency shall request that Petitioner submit his claim for compensation for all additional income-tax liability. The Agency shall afford Petitioner sixty (60) calendar days to submit his claim and supporting documents. The burden of proof to establish the amount of additional tax liability, if any, is on Petitioner. The calculation of additional tax liability must be based on the taxes Petitioner would have paid had he received the back pay in the form of regular salary during the back-pay period, versus the additional taxes he paid due to receiving the back-pay lump-sum award. Thereafter, the Agency shall issue a decision on this matter and any amount of proven additional tax liability within one hundred and twenty (120) calendar days of the date this decision is issued. The Agency shall provide a copy of its final decision, and proof of payment, to the Commission in digital format as referenced below.
ATTORNEY'S FEES (H1016)
If Complainant 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 (K0618)
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 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 Complainant and his/her representative.
If the Agency does not comply with the Commission's order, the Complainant may petition the Commission for enforcement of the order. 29 C.F.R. � 1614.503(a). The Complainant also has the right to file a civil action to enforce compliance with the Commission's order prior to or following an administrative petition for enforcement. See 29 C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g). Alternatively, the Complainant has the right to file a civil action on the underlying complaint in accordance with the paragraph below entitled "Right to File a Civil Action." 29 C.F.R. �� 1614.407 and 1614.408. A civil action for enforcement or a civil action on the underlying complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999). If the Complainant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R. � 1614.409.
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (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. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant'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
_7/25/18_________________
Date
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.
2 We note that there is no entitlement to compensation for the increased tax liability related to Petitioner's compensatory-damages award. Darlene F. v. Soc. Sec. Admin, EEOC Petition No. 0420140010 (Apr. 8, 2016) (citing Williams v. Dep't of Veterans Affairs, EEOC Petition No. 04A40047 (June 30, 2005)).
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