Heidi B.,1 Complainant (Petitioner),v.Alex M. Azar II, Secretary, Department of Health and Human Services, Agency.

Equal Employment Opportunity Commission

Nov 15, 2018

0120181119 (E.E.O.C. Nov. 15, 2018)

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

Heidi B.,1
Complainant (Petitioner),

v.

Alex M. Azar II,
Secretary,
Department of Health and Human Services,
Agency.

Appeal No. 0120181119
Petition No. 0420180013
Agency No. HHSOS00512014

DECISION

Complainant filed an appeal (docketed as EEOC Appeal No. 0120181119) with this Commission
from a final decision by the Agency dated November 2, 2017, and filed a Petition for Enforcement
(docketed as Petition No. 0420180013) of a prior Commission decision. In accordance with 29
C.F.R. § 1614.606, the Commission exercises its discretion and consolidates the above-referenced
appeal and petition for one decision. For the following reasons, the Commission AFFIRMS the
Agency’s November 2, 2017 final decision and GRANTS the Petition for Enforcement.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Human Resources
Specialist, GS-12, at the Office of Secretary (OS), Assistant Secretary for Administration (ASA),
Office of Human Resources (OHR), National Capital Region (NCR), Cleveland, Ohio.
Complainant filed a complaint in which she alleged that the Agency discriminated against her on
the bases of race, national origin, sex, color, and in reprisal for 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 Equal Pay Act of 1963 (EPA), as amended, 29 U.S.C. § 206(d) et seq. The Agency
defined Complainant’s complaint as alleging the following claims:

1. Complainant was paid less than her male coworker for substantially equal work
under equal working conditions from 2011 to present;

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.
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2. Complainant continued to be paid less than her male coworker even after a desk
audit conducted in July 2013, concluded she was performing at the GS-13 level;
3. On July 25, 2013, Complainant was informed her position qualified at the GS-13
level but management chose not to give her the accretion of duties and changed the
promotion potential back to GS-12; and
4. In retaliation on August 21, 2014, certain duties Complainant performed were
removed.

Following an investigation, the Agency issued a final decision finding no discrimination.
Complainant filed an appeal.

In EEOC Appeal No. 0120152308 (June 3, 2016), the Commission found that the Agency
discriminated against Complainant based on her sex when it did not pay her at the GS-13 level in
violation of the EPA and Title VII. We ordered the Agency, in relevant part, to pay Complainant
back pay, with interest and other appropriate benefits from July 15, 2013, to the date her
classification duties were removed in August 2014. We found Complainant did not request
compensatory damages and thus, did not address them as an element of relief. We directed the
Agency to pay Complainant an additional amount of liquidated damages (equal to the back pay
award) for its violation of the EPA.

We affirmed the Agency’s finding of no discrimination on the remainder of the complaint. We
also found the Agency failed to investigate, and address, in its final decision, Complainant’s claim
alleging that the Agency did not provide her reasonable breast feeding accommodations. We
ordered the Agency to investigate and process this claim.2

Thereafter, the Agency requested clarification of the Commission’s Order regarding back pay as
set forth in EEOC Appeal No. 0120152308. In EEOC Petition No. 0420160033 (December 15,
2016), the Commission stated the Agency sought clarification as to whether it should pay
Complainant back pay at the GS-13, Step 1 or GS-13, Step 2 level. The Agency explained that
the Comparative had been with the Agency longer than Complainant. The Agency argued that if
Complainant had been promoted, she would have been a GS-13, Step 1 and requested to pay
Complainant at the GS-13, Step 1 level.

Complainant filed a statement in opposition to the Agency’s filing. Complainant disagreed with
the Agency interpretation to treat the back pay award as a retroactive promotion and requested
back pay be set as the difference between her pay and the pay of the Comparative.3 She also
requested that the Commission rule on the matter of compensatory damages.

2 We note the Agency subsequently issued a final decision finding no discrimination on the denial
of reasonable breast feeding accommodations. Complainant appealed the Agency’s final decision
which currently is pending before the Commission under EEOC Appeal No. 0120171750.
3 Complainant did not identify the Comparative’s step level while the Agency’s Petition was
pending. However, a week after the Commission’s decision was issued, she submitted a statement
stating that from 2013 – 2014, the Comparative was paid at the GS-13, Step 7 level.
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She argued that the Commission erroneously stated she did not ask for compensatory damages.
Rather, she stated that she sought all remedies available to her under law which she claimed
included compensatory damages.

In our decision in EEOC Petition No. 0420160033, we noted that the Agency stated the
Comparative was paid at the GS-13, Step 2 Level during the relevant time. Thus, we found
Complainant’s back pay should be calculated by paying her the difference between the salary she
received and the salary the Comparative received (at the GS-13, Step 2 Level) retroactive to July
15, 2013, through the date Complainant’s classifications duties were removed in August 2014. We
further directed the Agency to pay Complainant an additional amount of liquidated damages (equal
to the back pay award) for its violation of the EPA.

Additionally, we found Complainant’s claim that the Commission failed to address her claim for
compensatory damages constituted a request for reconsideration of the Commission’s previous
decision. We docketed a request for reconsideration.

In EEOC Request No. 0520170099 (March 7, 2017), the Commission determined Complainant
had requested compensatory damages and remanded the matter for a supplemental investigation
and a final decision on the issue of compensatory damages. Additionally, the Commission restated
our prior Order requiring the Agency to pay Complainant back pay, with interest, for the difference
between her salary and that of the Comparative from July 15, 2013 through August 2014 and to
pay Complainant an additional amount of liquidated damages (equal to the back pay award) for its
violation of the EPA.

On November 2, 2017, the Agency issued a final decision on compensatory damages. The Agency
noted Complainant was seeking the maximum amount of compensatory damages. Complainant
claimed she suffered emotional pain and health damage, loss of enjoyment of life, and harm to her
career. Complainant stated she has not achieved her pre-discriminatory action health and believes
she will never return to that status. The record contained two affidavits from Complainant, a
statement from her husband, and an affidavit from a coworker, as well as some medical documents.

The Agency noted Complainant claimed she was not given adequate time to present her claim for
compensatory damages. She acknowledged the investigator gave her 14 calendar days to provide
her affidavit and documents, but indicated she requested a 45-day extension. The investigator
requested Complainant provide documentation relative to her claim as early as April 7, 2017. The
investigator advised Complainant that she could continue to provide documents until the time the
investigation was completed. Complainant submitted an affidavit and documents on May 10,
2017.

The Agency noted Complainant received the Commission’s decision regarding her entitlement to
compensatory damages on approximately March 7, 2017. The decision advised Complainant that
a supplement investigation would be conducted in the near future into Complainant’s entitlement
to compensatory damages.
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The Agency noted Complainant was aware of the need to obtain documents relative to her claim
for damages a full month before the investigator requested them, and then was given more than 30
days to submit them. The Agency noted Complainant did not indicate to the investigator that there
were any medical reports forthcoming. Thus, the Agency found Complainant was not harmed
when she was not granted a 45-day extension to provide evidence in support of her claim and was
given adequate time to do so.

The Agency noted that Complainant began experiencing work-related stress in 2012, and was
placed on bed rest for her first pregnancy and experienced a premature birth in early 2013.4
Complainant stated she felt depressed more often than not because the lower pay grade was a great
injustice. She described being tense with tight muscles and having constant back and neck aches.
She claimed she had tension headaches because of the stress and anxiety of her workload, and
because she spent so much time in front of a computer without breaks. Complaint stated she was
referred to physical therapy and developed Temporomandibular Joint Syndrome (TMJ).

Complainant stated the stress caused her depression to “deepen,” she became more irritable, had
no energy, felt fatigued, and was sad. She said she experienced times when she cried at work and
became withdrawn from office life. She said she had difficulty sleeping due to her anxiety and
questioned why her male co-worker was treated better regarding assignments and deadlines. She
stated she started fighting with her husband and could not enjoy her new baby or pregnancies.

The Agency noted Complainant stated that she was diagnosed with post-traumatic stress disorder
(PTSD) and back and neck problems in 2007, while she was in the Army and returned from a
second deployment. She stated her PTSD caused depression, sleep disturbance and anxiety. She
stated her symptoms were sporadic and manageable until the Agency’s discriminatory actions
occurred, which exacerbated her conditions. She stated her workload was “insane” and the
pressure to complete her tasks on time was “enormous.” She stated her male coworker’s workload
was not as demanding as hers. She stated her depression increased from several times a month to
several times a week.

The Agency noted Complainant’s husband stated Complainant had depression and PTSD prior to
working at the Agency. He said her symptoms were well managed and she was happy and in good
health, but acknowledged her conditions had “up’s and down’s” for Complainant and her family.
He stated Complainant was affected both physically and mentally starting a few years after
becoming employed by the Agency. He said she experienced sleep deprivation, stress, anxiety,
depression, anger management issues, and an inability to manage pain. He stated Complainant
often spoke of discrimination against her in comparison to her male counterpart, who she stated
was not as hard-working, reliable, knowledgeable, or qualified, yet held a higher rank than her.
He said that Complainant went from enjoying her work and feeling accomplished, to feeling
inadequate and mistreated.

4 The record reveals Complainant gave birth to her first child in January 2013. Complainant’s
second child was born in August 2014.
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He stated Complainant still suffers from the impact of the experience. He stated Complainant was
continuously tired, angry, or suffering a physical ailment, which deeply affected their marriage
and family.

The Agency noted Complainant’s former coworker was a Human Resources Specialist, GS-13,
and was Complainant’s team lead from 2010 to 2013, and later became her coworker. The former
coworker noted changes in Complainant when Complainant was assigned to serve as the
Classification Specialist Expert. She said Complainant became withdrawn and not as “friendly”
as she once was. She recalled an instance when Complainant came to her office around late 2013,
sat down on the floor and cried. She said she realized the stress and frustration Complainant was
feeling due to her large workload and not receiving the same salary as her peers were “getting very
bad.” She commented Complainant no longer seemed interested in her job, became more
defensive about her workload and more opinionated about her coworkers’ workload and habits.

The Agency noted that Complainant stated she experienced an aggravation of her pre-existing
physical and emotional pain for the approximate 13 months of the discriminatory treatment. The
Agency recognized that Complainant insisted she will never recover from the medical problems.
The Agency found the record revealed there were other significant stressors causing
Complainant’s emotional and physical distress prior to and throughout the period of
discrimination, including two pregnancies and a premature delivery of one of her children. The
Agency determined Complainant was entitled to $8,000.00 in nonpecuniary, compensatory
damages.

Regarding pecuniary damages, the Agency noted Complainant identified her monetary losses as
doctor and hospital bills related to several medical conditions she contends were caused by the
Agency’s actions. She requested $10,0861.00 for past monetary losses related to early labor in
her first pregnancy, physical therapy and chiropractor visits for her back and neck pain, and her
TMJ.

The Agency noted Complainant sought compensation for medical expenses related to the
premature delivery of her first child. She provided a number of Blue Cross/Blue Shield Federal
Program Explanation of Benefits (EOBs) statements related to maternity care, but did not provide
evidence of her actual out of pocket expenses related to her claim. Additionally, some of the EOBs
are dated in November and December 2012. The period of compensable harm did not begin until
July 15, 2013, more than six months after these expenses were incurred. Complainant provided
no evidence that the delivery of her child, or any complications related to her maternity care, were
caused by the Agency. Thus, the Agency determined any expenses related to her pregnancy were
not compensable.

Complainant also provided EOBs with various dates between October 14, 2013, and April 14,
2017. These documents do not indicate what condition the charge was related to other than
“physical medicine.” The part of the EOBs that outline what charges were covered and what
charges, if any, remained the responsibility of Complainant were omitted.
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Thus, the Agency found it was unable to determine if Complainant incurred any out of pocket
expenses in connection to those services.

The Agency noted Complainant’s testimony appeared to relate the charges to therapy and
treatment for neck and back pain. She stated her workload was heavier and she was required to
deliver it all on time. She stated this placed her under ‘great stress” and anxiety causing her to be
always tense and to have tight muscles. She claimed her back and neck hurt constantly and that
she started having tension headaches related to spending so much time in front of the computer
without breaks. Complainant also provided a copy of “Lake Health Physical Therapy Progress
Notes.” The report dated March 28, 2014, indicated Complainant was attending a series of
physical therapy sessions and was receiving treatment for muscle spasms. The Agency stated there
was nothing in the report that indicated Complainant’s physical symptoms were related to
performing GS-13 level work while receiving GS-12 level pay.

Complainant estimated that her future monetary expenses would be $1,900.00 per year for the cost
of chiropractor services and physical therapy.

The Agency determined the evidence provided by Complainant and her witnesses indicated her
physical problems were more related to the workload itself as opposed to the discriminatory pay
differential. The Agency stated that absent evidence that the Agency’s actions caused her back
and neck pain to worsen beyond what they were prior to mid-2013 or thereafter, the Agency stated
Complainant’s claims for payment of medical bills that may or may not be related to her neck and
back pain are not compensable. However, the Agency noted stress and emotional harm can result
in physical symptoms. The Agency found to the extent Complainant stated her preexisting neck
and back pain increased during the period of discriminatory treatment due to her emotional reaction
to the Agency’s action, it was factored into the consideration of her nonpecuniary damages.

The Agency noted Complainant stated she developed jaw pain that was diagnosed as TMJ. She
submitted a bill dated January 17, 2014, from an oral surgeon’s office in the amount of $299.00;
however, this document according to the Agency, does not provide a diagnosis, evidence of when
her symptoms began, or that it was the result of the Agency’s actions. The Agency noted
Complainant stated this condition continues to bother her, but again the Agency stated she
provided no relevant medical evidence. The Agency found Complainant did provide evidence
conclusive of a payment of $164 toward the $299.00 expenses categorized as “Patient Payment
MASTERCARD [sic]” on the invoice that is compensable under pecuniary damages. The Agency
awarded Complainant $164.00 in pecuniary damages.

The Agency noted that Complainant requested $1,900.00 per year for future medical expenses for
chiropractor and physical therapy. The Agency found absent evidence that Complainant’s mental
and physical pre-existing conditions were exacerbated for any long term or permanent basis from
the Agency’s actions, compensation for future medical expenses is not awarded.

On appeal, Complainant notes that she was not required to submit medical reports to obtain an
award of compensatory damages.
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Complainant claims the Agency negatively perceived her failure to take time off work for her
medical conditions. Complainant explains she did not take time off work because she did not have
leave due to her recent maternity leave and that she was saving her leave for future appointments
with her child and/or future maternity leave. Complainant avers that on days when she had bad
headaches in the morning, she would call in for occasional late arrival. Complainant also notes
the Agency cited the fact that she was not taking medication except Tylenol or Ibuprofen.
However, Complainant notes she was pregnant or breast feeding for much of the time and found
comfort and relief in alternative solutions. Complainant states the Agency claimed her two
pregnancies and one premature delivery were significant stressors causing her emotional and
physical distress. Complainant states she never said she was stressed by her pregnancies.
Complainant reiterates her PTSD, back and neck problems, depression, sleep disturbances, and
anxiety existed before the discrimination at issue. However, she states these conditions were
manageable until the Agency’s discrimination. Moreover, she notes as a result of the
discrimination she experienced new symptoms of headaches, TMJ, and muscle tension.

Separately, Complainant filed a petition for enforcement regarding whether the Agency has
complied with the Order set forth in EEOC Petition No. 0420160033 (December 15, 2016).

ANALYSIS AND FINDINGS

Appeal No. 0120181119

As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. § 1614.110(b),
the Agency's decision is subject to de novo review by the Commission. 29 C.F.R. § 1614.405(a).
See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 9,
§ VI.A. (Aug. 5, 2015) (explaining that the de novo standard of review “requires that the
Commission examine the record without regard to the factual and legal determinations of the
previous decision maker,” and that EEOC “review the documents, statements, and testimony of
record, including any timely and relevant submissions of the parties, and . . . issue its decision
based on the Commission’s own assessment of the record and its interpretation of the law”).

Nonpecuniary damages

At the outset, we find the record was adequately developed. Moreover, we find Complainant was
given adequate time to present information regarding her claim for damages.

When discrimination is found, the agency must provide a complainant with a remedy that
constitutes full, make-whole relief to restore her as nearly as possible to the position she would
have occupied absent the discrimination. See, e.g., Franks v. Bowman Transp. Co., 424 U.S. 747,
764 (1976); Albemarle Paper Co. v. Moody, 422 U.S. 405, 418-19 (1975); Complainant v. United
States Postal Serv., EEOC Appeal No. 01933395 (July 21, 1994). Pursuant to section 102(a) of
the Civil Rights Act of 1991, a complainant who establishes unlawful intentional discrimination
under either Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. §2000e
et seq., or Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29
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U.S.C. § 791 et seq. may receive compensatory damages for past and future pecuniary losses (i.e.,
out-of-pocket expenses) and nonpecuniary losses (e.g., pain and suffering, mental anguish) as part
of this “make whole” relief. 42 U.S.C. § 1981a(b)(3). In West v. Gibson, 527 U.S. 212 (1999),
the Supreme Court held that Congress afforded the Commission the authority to award
compensatory damages in the administrative process.

Nonpecuniary losses are losses that are not subject to precise quantification, i.e., emotional pain,
suffering, inconvenience, mental anguish, loss of enjoyment of life, injury to professional standing,
injury to character and reputation, injury to credit standing, and loss of health. See EEOC
Enforcement Guidance: Compensatory and Punitive Damages Available Under Section 102 of the
Civil Rights Act of 1991, EEOC Notice No. 915.002, at II.A.2 (July 14, 1992) (Compensatory
Damages Guidance). There is no precise formula for determining the amount of damages for
nonpecuniary losses except that the award should reflect the nature and severity of the harm and
the duration or expected duration of the harm. See Complainant v. Dep’t of the Treasury, EEOC
Appeal No. 01955789 (Aug. 29, 1997). The Commission notes that nonpecuniary, compensatory
damages are designed to remedy the harm caused by the discriminatory event rather than punish
the agency for the discriminatory action. Further, compensatory damages should not be
“monstrously excessive” standing alone, should not be the product of passion or prejudice, and
should be consistent with the amounts awarded in similar cases. See Complainant v. Dep’t of the
Interior, EEOC Appeal No. 01961483 (Mar. 4, 1999) (citing Cyngar v, City of Chicago, 865 F.2d
827, 848 (7th Cir. 1989)). Where a complainant’s emotional harm is due in part to personal
difficulties, which were not caused or exacerbated by the discriminatory conduct, the agency is
liable only for the harm resulting from the discriminatory conduct. See Compensatory Damages
Guidance, at II, A.2.

After a review of the record, we find that Complainant has proven her entitlement to nonpecuniary
compensatory damages due to the emotional distress she suffered from as a result of the Agency’s
discrimination. The Commission has found that where a complainant has a pre-existing condition,
the Agency is liable only for the additional harm or aggravation caused by the discrimination.
Wallis v. United States Postal Serv., EEOC Appeal No. 01950510 (November 13, 1995). The
record supports aggravation of Complainant’s preexisting depression, PTSD, anxiety, and sleep
disturbances during the 13 months she did not receive pay at the GS-13 level while performing
GS-13 level work. Complainant stated she also developed migraine headaches, muscle tension,
irritability, and TMJ as a result of the discrimination. However, the weight of the evidence
indicates Complainant experienced stress and that an exacerbation of her symptoms was due to
her workload starting in 2011, as opposed solely to the unequal pay she was receiving for that
workload between July 15, 2013, and August 21, 2014. There was no finding of discrimination
relative to the amount of work she performed and her reaction to that workload is not compensable.

In order to establish an entitlement to compensatory damages, the burden is on a complainant to
submit evidence to show that the agency's discriminatory conduct directly or proximately caused
the losses for which damages are sought. See Complainant v. United States Postal Serv., EEOC
Request No. 05980311 (February 26, 1999).
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Here, the Commission finds that $8,000.00 is an appropriate amount of compensatory damages,
as Complainant presented sufficient evidence to establish that the Agency’s actions caused at least
some of her physical and emotional distress. This takes into consideration Complainant’s history
of PTSD, back and neck problems, depression, and sleep abnormalities and the fact that she
experienced other stressors in her life. We find this award is not motivated by passion or prejudice,
not “monstrously excessive” standing alone, and consistent with the amounts awarded in similar
cases. See Marcelina Q. v. Dep’t. of Treasury, EEOC Appeal No. 0120160430 (Nov. 28, 2017),
req. for recons. den., EEOC Request 0520180165 (April 5, 2018) ($5,000.00 in nonpecuniary
damages where evidence complainant suffered from depression, severe migraines, and trouble
sleeping, as well as becoming withdrawn from her family and exacerbation of physical symptoms);
Grimes v. Dep’t. of the Navy, EEOC Appeal No. 01A10328 (Aug. 27, 2002), req. for recons. den.,
EEOC Request No. 05A30176 (Jan. 9, 2003) ($8,000.00 in nonpecuniary damages awarded where
discrimination aggravated complainant's preexisting depression, but much of her emotional
distress was caused by factors other than discrimination).

Pecuniary damages

Compensatory damages may be awarded for pecuniary losses that are directly or proximately
caused by the agency's discriminatory conduct. See Compensatory Damages Guidance, at 8.
Pecuniary losses are out-of-pocket expenses incurred as a result of the agency's unlawful action,
including job-hunting expenses, moving expenses, medical expenses, psychiatric expenses,
physical therapy expenses, and other quantifiable out-of pocket expenses. Id. Past pecuniary
losses are losses incurred prior to the resolution of a complaint through a finding of discrimination,
the issuance of a full-relief offer, or a voluntary settlement. Id. at 8-9. Future pecuniary losses
are losses that are likely to occur after resolution of a complaint. Id. at 9.

Upon review, the evidence reveals Complainant is entitled to pecuniary damages in the amount of
$164.00 for the payment she made in January 2014, for her visit to an oral surgeon’s office.
Complainant failed to show that she is entitled to recover any additional past or future pecuniary
damages.

Accordingly, the Agency’s decision on compensatory damages awarding Complainant $8,000.00
in nonpecuniary damages and $164.00 in pecuniary damages is AFFIRMED.

Because Complainant is not entitled to duplicate relief for the same wrong under the EPA and Title
VII, compensatory damages shall only be paid to the extent that they exceed the amount of
liquidated damages actually paid to Complainant under the EPA pursuant to this decision.

Petition No. 0420180013

The Equal Employment Opportunity Commission (EEOC or Commission) docketed a petition to
determine whether the Agency has complied with the Order set forth in EEOC Appeal No.
0420160033 (December 15, 2016).
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The Commission accepts this petition for enforcement pursuant to 29 C.F.R. § 1614.503.
Petitioner5 alleged that the Agency failed to fully comply with the Commission’s Order in EEOC
Petition No. 0420160033. The matter is REMANDED for the Agency to show compliance with
our prior Order.

The history of this case has already been summarized earlier in this decision and we will not restate
the background.

Petitioner filed the subject petition for enforcement claiming the Agency failed to pay the proper
amount of back pay required under the Commission’s prior Order. Petitioner indicated that the
Agency had paid her back pay and liquidated damages; however, she did not agree with their
calculations. Specifically, she noted that the Agency failed to award a within grade increase
effective July 26, 2014.

The Agency filed an April 2, 2018 “Agency’s Response to Complainant’s Petition for
Enforcement” requesting the Commission deny the petition because it complied with the
Commission’s previous orders regarding the calculation of Petitioner’s back pay. The Agency
noted that in EEOC Petition No. 0420160033 (December 15, 2016), the Commission ordered the
Agency to pay Petitioner at the GS-13, Step 2 level. The Agency states it calculated Petitioner’s
back pay at the GS-13, Step 2 level for the period covering July 13, 2013 – August 23, 2014, and
has paid her the following: back pay in the amount of $15,355.20, interest in the amount of
$1,973.87, and compensatory damages in the amount of $8,164.00. The Agency states it also paid
Petitioner liquidated damages in the amount of $17,329.07 (equal to the amount of back pay and
interest paid to her). Regarding Petitioner’s contention that the Agency should have paid her at
the GS-13, Step 3 level rather than the GS-13, Step 2 level for one month from July 26, 2014 –
August 23, 2014, the Agency argues she has not submitted any evidence to support her request for
this increased amount.

On April 24, 2018, Petitioner submitted a request for tax offset payments for tax year 2017, when
she received the lump sum back pay per the Commission June 3, 2016 decision. Petitioner
requested a total of $4,032.00 of tax offset. She stated for tax year 2017, a tax professional
prepared her taxes, showing that without the additional lump sum payment she would have
received a $2,264.00 federal tax refund, a $484.00 state tax refund, and a $2,000.00 child tax credit.
In contrast, she states with the lump sum payment, her taxes for tax year 2017 as prepared by a tax
professional show: a $512.00 federal tax liability, a $322.00 state tax liability, and a child tax credit
reduced to $1,550. Complainant stated she paid $342.00 for preparation of her taxes. She
requested the difference in the federal and state tax liabilities, child tax credit difference, and also
tax preparation fees, for a total of $4,032.00. Complainant submitted partial 2017 federal and state
tax returns.

5 Complainant is referred to as Petitioner in this Petition for Enforcement. The terms Complainant
and Petitioner are used interchangeably in this decision.
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On May 24, 2018, the Agency filed its “Agency Response to Complainant’s Request for Tax Offset
Payment.” The Agency argued that Petitioner’s Request was untimely. The Agency noted that
prior to April 24, 2018, she never requested any tax offset.

The Agency also argued that Petitioner incorrectly calculated the tax offset amount. The Agency
noted the question is whether Petitioner paid a larger amount of taxes on the back pay because she
received it as a lump sum in 2017, when compared to the amount of taxes she would have paid on
the sum had she received it over time from July 2013 through August 2014, the period during
which she would have received the money. The Agency noted in the present case, Petitioner failed
to produce evidence of what her tax liability would have been in tax years 2013 and 2014 had she
received the money then, so that it could be compared to what her tax liability was in 2017, when
she actually received the money.

The Agency also stated Petitioner inappropriately added in the reduction of $450.00 in her child
tax credit. The Agency noted that she included the child tax credit in her bottom-line tax/refund
totals and thus, should be deducted from any amount Petitioner is claiming she is owed for a tax
offset.

The Agency also argued that as Petitioner incorrectly calculated what she would be due for tax
offset, it should not be required to pay her tax preparation fees. Further, the Agency noted the
documentation Petitioner submitted did not provide detail as to what portion of those fees was
necessary to generate the income tax returns she filed. The Agency claimed that since Petitioner
did not provide a breakdown of what the fees were used for, the request for reimbursement for the
tax preparation fees should be denied.

Finally, the Agency claimed Petitioner did not submit adequate documentation to support her
request. It noted the only documents she submitted with her request were the last pages of the four
versions of her 2017 income tax returns – the federal and state returns which include the lump
sum, and the federal and state returns which do not include the lump sum. The Agency noted she
did not submit the entire tax returns, she did not submit any of her W-2 or 1099 forms, or any
accompanying schedules. Thus, the Agency noted it cannot determine what income was used on
any of the returns to determine the tax owed or refund due.

The record contains several different charts purporting to show Agency back pay calculations.
Those charts identify back pay was calculated by relying on a GS-13, Step 2 salary as the salary
Complainant should have received had discrimination not occurred.

Back pay

In EEOC Appeal No. 0120152308 (June 3, 2016), the Commission found that the Agency
discriminated against Complainant based on her sex when it did not pay her at the GS-13 level in
violation of the EPA and Title VII. We ordered the Agency, in relevant part, to pay Complainant
back pay, with interest and other appropriate benefits from July 15, 2013, to the date her
classification duties were removed in August 2014.
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We further directed the Agency to pay Complainant an additional amount of liquidated damages
(equal to the back pay award) for its violation of the EPA.

In EEOC Petition No. 0420160033 (December 15, 2016), the Commission found Complainant’s
back pay should be calculated by paying her the difference between the salary she received and
the salary the Comparative received (at the GS-13, Step 2 level) retroactive to July 15, 2013,
through the date Complainant’s classifications duties were removed in August 2014.

Upon further review, we find evidence in the record that shows the Commission’s prior Order
stating back pay should be calculated as the difference between the salary Complainant received
and the salary of the Comparative at the GS-13, Step 2 level retroactive to July 15, 2013, through
August 2014 was improper. Rather, the record indicates that the Comparative was receiving
payment at a level higher than Step 2 during the relevant time. An SF-50 shows the Comparative
transferred to the Agency as a Human Resources Specialist, effective January 20, 2008, at the GS-
13, Step 4 level. He was promoted to the GS-13, Step 5 level effective August 28, 2009. Petitioner
claims that during the 2013 – 2014, the Comparative was at the GS-13, Step 7 level. The record
does not contain any documentation to show the step level of the Comparative after 2009. The
Agency does not contest Petitioner’s claim that the Comparative was a GS-13, Step 7 during 2013
– 2014. However, due to the absence of documentation, the Commission is unable to determine
the appropriate step level of the Comparative during the relevant time. Thus, this matter is
remanded for further processing. On remand, the Agency shall produce evidence documenting the
GS-13 step level of the Comparative during the relief period (July 15, 2013 through the date
Complainant’s classifications duties were removed in August 2014). Thereafter, the Agency shall
calculate back pay based on the Comparative’s GS-13 step level during that time and pay
additional money due.

Regarding Petitioner’s contention that the Agency improperly calculated her pay at the GS-13,
Step 3 level from July 26, 2014, through August 2014, we find this claim is no longer relevant and
we decline to address it.

An individual may recover under both the EPA and Title VII for the same period of time as long
as the same individual does not receive duplicative relief for the same wrong. 29 C.F.R.
§1620.27(b). Relief is computed to give an individual the “highest benefit” which either statute
would provide. Id. Under Title VII, a complainant may recover back pay for two years prior to
the filing of the complaint. EEOC Compliance Manual Section 10, “Compensation
Discrimination,” No. 915.003, at 10-VI (Dec. 5, 2000) (citations omitted). Back pay under the
EPA dates back to two years prior to the filing of the complaint. Id. In cases of willful violations,
the back pay period is three years. Id. The EPA also provides for liquidated damages, at an amount
equal to back pay, unless the agency proves that it acted in “good faith” and had reasonable grounds
to believe that its actions did not violate the EPA. Id.

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Our previous decision under EEOC Appeal No. 0120152308 (June 3, 2016) determined the
Agency did not establish that it acted in “good faith” and had reasonable grounds to believe that is
actions did not violate the EPA. Thus, we awarded liquidated damages in an amount equal to the
back pay awarded.

Our decision in EEOC Appeal No. 0120181119 (discussed earlier in this decision) found that the
Agency’s award of $8,000.00 in nonpecuniary damages and $164.00 in pecuniary damages was
appropriate.

Although we find that the liquated damage award as being equal to the back pay award is
appropriate and the $8,164.00 in damages ($8,000.00 nonpecuniary and $164.00 pecuniary) is
appropriate, we find that double recovery is not allowed. The total amount of the back pay has yet
to be fully calculated. However, we note that based on preliminary Agency calculations, the back
pay award will exceed $8,164.00. The Commission has recognized that a complainant may receive
the greater of the liquidated damages available under the EPA or compensatory damages available
under Title VII, but not both. Therefore, in the present case Complainant shall only be awarded
the liquidated damages, and not the lesser amount of $8,164.00 in compensatory damages. To the
extent the Agency has already paid Complainant compensatory damages, it may deduct such an
amount from the re-calculated back pay amount.

Adverse Tax Consequences

At the outset, we decline to dismiss the petition for adverse tax consequences as untimely filed.
Although the Agency’s calculations of back pay were dated in 2017, the Agency acknowledges it
did not pay Petitioner back pay until 2018. We find Petitioner’s April 2018 request for
reimbursement for adverse tax consequences to be timely raised.

In the case of a lump sum back pay award, individuals are entitled to compensation for the extra
tax liability they are required to pay as a result of receiving a lump sum award, as opposed to the
actual amount they would have had to pay if they had received their pay over a period of time.
Emiko S. v. Dep’t. of Transportation, EEOC Appeal No. 0120161130 (Jul. 19, 2016). It is the
receipt of the pay in one lump sum that causes the extra tax liability, not the back pay award itself.
Id. Complainant bears the burden to prove the amount to which she claims entitlement. Id. (citing
Cottrell v. Dep’t. of Transportation, EEOC Petition No. 04A30015 (Oct. 12, 2004)); see also e.g.,
Cecile S. v. United States Postal Serv., EEOC Petition No. 0420120013 (Nov. 4, 2015).

The Commission has noted that a complainant, who bears the burden of proof on this issue, must
submit evidence showing the difference between the taxes that she paid on the lump-sum payment
and the taxes that she would have paid had the salary been earned over time. See Darlene F. v.
Soc. Sec. Admin., EEOC Petition No. 0420140010 (Apr. 8, 2016); Dellinger v. United States
Postal Serv., EEOC Appeal No. 07A40040 (Sept. 29, 2005) (burden of proof to establish amount
of additional tax liability is on complainant);.

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A complainant must show more than the total tax liability arising from receipt of the lump-sum
award; she must show the differential between this tax burden and the taxes that she would have
paid if she had received the back-pay as part of her salary. Johnson v. Envtl. Prot. Agency, EEOC
Petition No. 0420060035 (Nov. 5, 2007). A complainant must “provide exact and detailed
calculations showing the amount he is claiming.” Emerson S., EEOC Petition No. 0420130026
(Nov. 20, 2015). Complainant has not provided sufficient evidence, as correctly argued by the
Agency, to show she suffered adverse tax consequences. Upon review, we find Petitioner failed
to meet her burden of proving she is entitled to tax offset as a result of her lump sum back pay
award.

CONCLUSION

Accordingly, the Commission AFFIRMS the Agency’s November 2, 2017 final decision finding
Complainant is entitled to $8,000.00 in nonpecuniary damages and $164.00 in pecuniary damages.
Additionally, the Commission GRANTS the Petition for Enforcement and remands the matter for
further processing in accordance with this consolidated decision and the Order herein.

ORDER

1. Within 60 days of the date this decision is issued, the Agency shall:

A. Provide evidence in the record of the Comparative’s GS-13 step during the
period of July 15, 2013, through the date Petitioner’s classifications duties were
removed in August 2014.
B. Recalculate back pay for the period of July 15, 2013, through the date
Petitioner’s classifications duties were removed in August 2014. The Agency
shall provide Petitioner a full explanation of its back pay and interest
calculations.

2. Within 120 days of the date this decision is issued, the Agency shall issue a decision on this
matter and pay any amount of outstanding back pay and liquidated damages within 120 calendar
days of the date this decision is issued in accordance with 29 C.F.R. § 1614.110(b). The Agency
shall provide a copy of its final decision, and proof of payment, to the Compliance Officer as
referenced herein.

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).

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
0420180013, 0120181119

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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.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)(For 0120181119 only)
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:
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. A party shall have
twenty (20) calendar days of receipt of another party’s timely request for reconsideration in
which to submit a brief or statement in opposition. See 29 C.F.R. § 1614.405; Equal Employment
Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9 § VII.B
(Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal
Operations, Equal Employment Opportunity Commission. Complainant’s request may be
submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131
M Street, NE, Washington, DC 20507. 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 agency’s request must be submitted
in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. §
1614.403(g). The request or opposition must also include proof of service on the other party.
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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 (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.

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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

November 15, 2018
Date