0420180014
09-06-2018
Devon H.,1 Petitioner, v. Kirstjen M. Nielsen, Secretary, Department of Homeland Security (Transportation Security Administration), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Devon H.,1
Petitioner,
v.
Kirstjen M. Nielsen,
Secretary,
Department of Homeland Security
(Transportation Security Administration),
Agency.
Petition No. 0420180014
Request No. 0520160142
Agency No. HS-06-TSA-005282-2006
DECISION ON A PETITION FOR ENFORCEMENT
On April 4, 2018, the Equal Employment Opportunity Commission (EEOC or Commission) docketed a petition for enforcement to examine the enforcement of an Order set forth in EEOC Request No. 0520160142 (April 15, 2016). The Commission accepts this petition for enforcement pursuant to 29 C.F.R. � 1614.503.
BACKGROUND
At the time of events giving rise to this complaint, Petitioner was employed by the Agency as a Federal Air Marshal, SV-1801-I at the Charlotte Field Office in Charlotte, North Carolina.
Petitioner filed an equal employment opportunity (EEO) complaint alleging, in relevant part, discrimination based on reprisal for prior protected EEO activity under Section 501 of the Rehabilitation Act of 1973 in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq. when on September 1, 2006, he learned that the Agency did not select him for promotion to the position of Supervisory Federal Air Marshal, SV-1801-J. In Devon H. v. Department of Homeland Security, EEOC Request No. 0520160142 (Apr. 15, 2016), the Commission upheld its previous decision finding reprisal discrimination on the above claim.
The Commission ordered, in relevant part, that the Agency retroactively offer (which he accepted) to promote Petitioner to the J Band with back pay, interest thereon, promotions, benefits, and monetary remuneration attached to the position, and it be presumed his performance therein was satisfactory. It ordered back pay pursuant to 29 C.F.R. � 1614.501, and directed that it run from the date the person who was selected for the promotion was appointed until Petitioner accepts or rejects the position. The Commission ordered that once the Agency calculates the proper amount of back pay, Petitioner be given the opportunity to present evidence of adverse tax consequences from receiving the back-pay lump sum, if any, and that the Agency pay him compensation therefor. The Commission instructed that Petitioner had the burden of establishing the amount of increased tax liability. The matter was assigned to a Compliance Officer and docketed as Compliance No. 0620160499 on April 19, 2016.
In February 2018, the Commission sent a letter to the Agency, which it copied to Petitioner, advising that it no record that the Agency fully implemented the Commission's order in EEOC Request No. 0520160499 because the Agency did not submit a compliance report addressing tax consequences. The Commission advised the Agency that if it failed to submit, within 20 days, evidence of compliance on order on tax consequences, or a reason for not complying, the Commission would take further action. After receiving no reply, the Commission sua sponte opened this petition for enforcement. In the April 4, 2018 letter notifying the parties that it opened this petition for enforcement, the Commission advised them that they had 20 calendar days from receipt of the notice to submit a brief regarding the petition. By letter the next day the Commission notified the parties that the express purpose of this petition was to address the Agency's compliance on tax consequences.
Petitioner timely filed his brief on April 18, 2018. He writes that in October 2016, the Agency gave him a one page Back Pay Statement dated October 24, 2016, for the period of September 17, 2006 - May 30, 2015,2 which gives totals for back pay, interest, and deductions for various taxes and for his thrift savings plan. The one page Back Pay Statement does not explain how the calculations were arrived at, nor break them down by pay period or year. Petitioner argues that he took the one page Back Pay Statement to his tax preparer to get his adverse tax consequences calculated, and the tax preparer explained that to do this he needed to know what the back pay amount was for each prior tax year. Petitioner argues that he requested this documentation from the Agency, and it refused.
Petitioner also argues that the Agency did not properly calculate his back pay with interest, nor provide him other benefits and remuneration to which he was entitled. Specifically, he argues that for the back pay period he was entitled to an annual 1% base pay increase (known as an in-position increase), but only got it for three years, that he was entitled to cash awards for each year, that the Agency improperly deducted from back pay 155 hours of overtime he earned while he was in the I Band before he was retroactively converted to the J Band because the supervisory J Band is exempt from earning Fair Labor Standards Act overtime, that the Agency did not pay/contribute the proper amount into his Thrift Savings Plan (TSP) account nor pay the proper earnings on his funds, nor deduct his contributions to TSP from his withheld taxes, increasing his tax liability, and various issues with the calculation of interest.
The Agency did not submit a brief nor respond to Petitioner's brief.
ANALYSIS AND FINDINGS
As an initial matter, we will not address Petitioner's appellate argument that the Agency did not properly calculate his back pay with interest, nor provide him other benefits and remuneration to which he was entitled. The Commission sua sponte opened this petition for enforcement specifically to address the adverse tax consequences matter. Also, at this point we have insufficient information to address Petitioner's appellate arguments on the proper calculation of the above.
With the one-sheet Back Pay Statement the Agency submitted to the Commission, the Agency included an additional 134 sheets of supporting calculations, including interest, much of what Petitioner seeks. In the "Implementation of the Commission's Decision (K0610)" paragraph of the decision in EEOC Request No. 0520160142, the Commission ordered that the Agency's compliance report must contain supporting documentation, and the Agency must send a copy of all submissions to Petitioner. This means the Agency should have given Petitioner all the documentation and calculations it provided the Commission, as well as giving to the Commission and Petitioner all the supporting documentation and calculations through the end of the back pay period in May 2016.
Nevertheless, we must DISMISS this petition without further enforcement because it has been rendered premature by subsequent events. In a FAD dated March 13, 2018, and mailed on March 22, 2018, the Agency ruled that Petitioner was not entitled to any adverse tax consequences because he submitted no evidence to the Agency regarding them.3 Petitioner filed an appeal, which the Commission docketed as EEOC Appeal Nos. 0120181822 and 0120181823. These appeals are still pending. As there is an appeal pending on whether the Agency properly denied Petitioner adverse tax consequences, this petition for enforcement must be closed. We will address tax consequences issues in EEOC Appeal Nos. 0120181822 and/or 0120181823.
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S0610)
You have the right to file a civil action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. 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. If you file a request to reconsider and also file a civil action, 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
September 6, 2018
__________________
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 In his brief, Petitioner writes that in May 2016, the Agency provided him with back pay for what it said was due for "2016," and provides the corresponding Agency statement of earnings and leave, which the Agency previously submitted to the Commission. The statement does not indicate what back pay period this covered.
3 The Agency also ruled on compensatory damages regarding a subsequent EEO complaint. In his appeal, Petitioner in part reiterated that the Agency has refused to give him the back pay calculations he needs to submit his evidence on his tax consequences.
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