[Redacted], Garland C., 1 Petitioner,v.Pete Buttigieg, Secretary, Department of Transportation (Federal Aviation Administration), Agency.

Equal Employment Opportunity Commission

Nov 8, 2021

Appeal No. 0120182009 (E.E.O.C. Nov. 8, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Garland C.,1 Petitioner, v. Pete Buttigieg, Secretary, Department of Transportation (Federal Aviation Administration), Agency. Petition No. 2021000122 Appeal No. 0120182009 Agency No. 201324944FAA04 DECISION ON A PETITION FOR ENFORCEMENT On October 6, 2020, the Equal Employment Opportunity Commission (EEOC or Commission) docketed a petition for enforcement to examine the enforcement of an Order set forth in EEOC Appeal No. 0120182009 (January 29, 2020). The Commission accepts this petition for enforcement pursuant to 29 C.F.R. § 1614.503. Petitioner alleged that the Agency failed to fully comply with the Commission’s order to reinstate him with an 8% salary increase; pay him the appropriate amount of backpay; discipline the responsible management officials; and submit a final compliance report to the Commission.2 BACKGROUND At the time of events giving rise to this complaint, Petitioner worked as a Supervisory Aviation Safety Inspector (SASI) at the Agency’s Ohio Flight Standards District Office in Columbus, Ohio. 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 The Commission informed the Agency that compliance monitoring was suspended, pending the decision for the instant petition. 2021000122 2 On November 27, 2012, Petitioner informed his supervisor that he had been sexually harassed by a Team Manager (TM) when she stated that her husband had been selected as the new Columbus Flight Standards District Office Manager (FSDOM) and that Petitioner would have to “suck [FSDOM’s] cock” to get along with him. On December 6, 2012, Petitioner was informed that he would be demoted to his previous Aviation Safety Inspector (ASI) position and reassigned to work under FSDOM. On March 20, 2013, Petitioner filed an equal employment opportunity (EEO) complaint alleging that the Agency discriminated against him in reprisal for reporting sexual harassment when: 1. on or about December 6, 2012, Petitioner was demoted from his SASI position during his probationary period and placed in an ASI position; and 2. after Petitioner’s placement into the ASI position, he was micromanaged, and his deadlines accelerated without notice by FSDOM. Petitioner requested a hearing, and the Administrative Judge (AJ) held a hearing on June 30, 2015, and August 1, 2015. In a decision dated November 21, 2016, the AJ found that Petitioner proved that he was subjected to reprisal when he was demoted and subjected to harassment through micromanagement and accelerated deadlines. On June 20, 2017, the AJ conducted a hearing on damages. On October 26, 2017, the AJ ordered the Agency to provide Petitioner: backpay with interest; compensation for any loss to his Thrift Savings Plan (TSP) and pension resulting from the demotion; $20,000.00 in non-pecuniary compensatory damages; $810.00 in pecuniary damages; and payment for any negative tax treatment resulting from lump-sum payments. Additionally, the Agency was required to post a notice of the discrimination findings and provide EEO training to all management officials named in the AJ’s decision. The AJ determined that reinstatement was not appropriate in this case because Petitioner was promoted to a GS-14 position in April 2016, and he currently worked at the GS-14 level at an annual salary of $111,395.00. The AJ found that the record did not demonstrate that the SASI position from which Petitioner was demoted was substantially equivalent to his current ASI position with respect to duties and responsibilities. However, the AJ determined that reinstating Petitioner to his former SASI position was not feasible because of the acrimonious working relationship between the parties. When the Agency failed to issue a final order within forty days of receipt of the AJ’s decision, it became the Agency’s final action pursuant to 29 C.F.R. § 1614.109(i). On March 15, 2018, the AJ issued a decision to deny Petitioner’s request for attorney’s fees because he failed to submit a verified statement of fees and costs with his petition. On May 22, 2018, the Agency issued a final order fully implementing the AJ’s attorney’s fees decision. Petitioner appealed the Agency’s final order. 2021000122 3 On January 29, 2020, the Commission found that the record lacked substantial evidence to support any finding of such acrimony that reinstatement to Petitioner’s previous SASI position would be inappropriate and ordered the Agency to reinstate Petitioner to a SASI position. The Commission also found that the record was inadequately developed with respect to Petitioner’s entitlement to compensation for adverse tax consequences; significantly, the record did not contain any documentation establishing that Petitioner had received the awarded backpay. The Commission noted that the AJ did not specify the procedure for Petitioner to submit evidence on adverse tax consequences, and there was no evidence that the Agency provided him with any guidance on how to do so. Accordingly, the Commission ordered the Agency to provide Petitioner with an opportunity to submit evidence regarding adverse tax consequences, as well as supplement the record itself with all pertinent evidence on this matter. The Commission also found that the AJ’s award of $20,000.00 in non-pecuniary compensatory damages was supported by substantial evidence, and that the AJ properly determined that Petitioner was not entitled to attorney’s fees and costs. Garland C. v. Dep’t of Transportation, EEOC Appeal No. 0120182009 (Jan. 29, 2020). The Commission’s Order specified that the Agency: (1) offer to reinstate Petitioner to a SASI position, or a substantially equivalent and agreeable position; (2) determine the appropriate amount of additional backpay, with interest and other benefits; (3) request that Petitioner submit his claim for compensation for all additional income tax liability associated with lump-sum payments; (4) pay Petitioner $20,000.00 in non-pecuniary compensatory damages; (5) provide eight hours of in-person or interactive EEO training to the responsible management officials (as identified in the AJ’s October 26, 2017 order), with an emphasis on the prohibition against retaliation; and (6) consider taking appropriate disciplinary action against the responsible management officials (as identified in the AJ’s October 26, 2017 order). The Commission also ordered the Agency to post a notice of the discrimination and submit a final compliance report once it had completed the required actions. On January 30, 2020, the matter was assigned to a Compliance Officer and docketed as Compliance No. 2020002136. Petition for Enforcement On September 9, 2020, Petitioner submitted the petition for enforcement at issue. Petitioner states that the Agency reinstated him to a Front-Line Manager position on July 5, 2020; however, this was not an agreeable position because it did not provide an 8% salary increase within 60 days of the Commission’s decision. Further, Petitioner argues that the Agency did not act in good faith during its attempts to calculate his raise, backpay, and appropriate interest. Petitioner states that his pay was “substantially reduced”, noting a reduction from $127,027.00 to $121,878.00. Petitioner asserts that the Commission’s order granted him, and the Agency itself agreed, to a percentage increase. However, according to Petitioner, the Agency offered an 8% salary increase if Petitioner would “sign off” on another ongoing EEO complaint, which he declined. Petitioner explains that the Agency eventually offered him a 5% salary increase. Petitioner contends that supervisory positions are on the FV (J Band) pay scale, which are subjective, and that the Agency’s salary comparisons were “conjecture,” while his calculations are “based on proven data.” 2021000122 4 Petitioner also asserts that the Agency failed to take disciplinary action against the named individuals or submit its final compliance report. Petitioner requests an 8% salary increase from $127,027.00, as well as an annual 8% increase beginning from December 6, 2012, with additional interest. Moreover, Petitioner asks that he be placed into an agreeable Front-Line Manager position; the responsible management officials be disciplined; the Agency be mandated to provide required documents; and sanctions be imposed against the Agency. On October 18, 2020, Petitioner submitted an additional statement, stating that the Agency has complied with orders 3 and 4, when it paid him the additional tax liabilities and $20,000.00 in non-pecuniary compensatory damages. Agency Response In response to the Petition for Enforcement, the Agency argues that it has complied with the Commission’s orders. The Agency notes that Petitioner was reassigned to a SASI position, with a 5% salary increase. The Agency states that, while Petitioner argues his pay has been substantially reduced, a review of the pay reconstruction for Petitioner revealed that this was the result of non-supervisory and supervisory inspectors being on different pay systems. Specifically, non-supervisory Flight Standards Safety Inspectors are within a bargaining unit and are on the FG pay system. Contrastingly, explains the Agency, Supervisory Flight Standards Safety Inspectors fall under the Agency’s Core Compensation pay plan, which is a “pay for performance” plan that recognizes, rewards, and encourages individual contributions and organizational success. Under the Core Compensation pay plan, employees are assigned to a pay band based on job category and the level of responsibility of the position. The Agency notes that the non-supervisory FG pay system is similar to the GS pay system, and includes within-grade increases and annual cost of living increases. With a reassignment from a non-supervisory position to a supervisory position, Petitioner is not eligible for within-grade increases or negotiated bargaining unit increases that he had previously received. Therefore, the salary rebuild conducted by the Agency’s Human Resources department resulted in an overall decrease in salary for Petitioner. For example, in January 2019, Petitioner would have earned $117,812.00 as a Supervisory Flight Standards Safety Inspector, compared to the $119,830.00 he earned as a bargaining unit employee. Citing the pay reconstruction document, the Agency noted that in April 2018, as a bargaining unit employee, Petitioner received a step increase to a GS-14, Step 4, which he would not have been eligible for in a supervisory position. The Agency maintains that differences in pay systems, between the bargaining unit and supervisory positions, resulted in the pay differences Petitioner received upon completion of the pay reconstruction performed to correct his personnel records to remove any reference to the unlawful demotion. According to the Agency, it has already made two backpay payments to Petitioner on March 7, 2018 ($11,131.89, with interest of $1,611.88) and on April 7, 2020 ($2,545.09, with interest of $1,164.96). 2021000122 5 The Agency also contends that it determined Petitioner was owed an additional $20,707.63, and interest in the amount of $6,465.31, which was scheduled to be paid to Petitioner on or about October 20, 2020. As for the matter of discipline, the Agency states that an Evaluating Manager considered such action but decided not to issue discipline in this matter. ANALYSIS AND FINDINGS EEOC regulation provides that if an agency does not comply with the Commission’s order, a complainant may petition the Commission for enforcement of the order. 29 C.F.R. § 1614.503(a). Reinstatement Petitioner argued that the Agency failed to comply with the Commission’s order to reinstate him because, while it reinstated him to a position of a Front-Line Manager, it did not provide him with an 8% increase in salary. However, we find that the Agency complied with the order because it offered, and Petitioner accepted, an agreeable position that was substantially equivalent to his former SASI position. The record shows that on May 20, 2020, the Agency offered Petitioner a SASI position in Cincinnati and that he responded on May 29, 2020, stating that he “agree[d] that it is an equivalent supervisor position to the one previously held.” To the extent that Petitioner argues that the Agency has not complied because it failed to provide an 8% salary increase, we find such action was not required by the Commission’s order to offer of reinstatement. While the Agency did offer Petitioner an 8% salary increase, we note that this was done as part of settlement negotiations regarding a separate EEO complaint, which is unrelated to the Commission’s reinstatement order. As such, we find that the Agency has complied with our order to offer Petitioner reinstatement to a SASI, or substantially equivalent and agreeable, position. Backpay The purpose of a back-pay award is to restore to a complainant the income he would have otherwise earned but for the discrimination. See Albemarle Paper Co. v. Moody, 442 U.S. 405, 418-19 (1975); Davis v. U.S. Postal Serv., EEOC Petition No. 04900010 (Nov. 29, 1990). Gross backpay should include all forms of compensation and must reflect fluctuations in working time, overtime rates, penalty overtime, Sunday premium and night work, changing rate of pay, transfers, promotions, and privileges of employment to which the petitioner would have been entitled but for the discrimination. See Ulloa v. U.S. Postal Serv., EEOC Petition No. 04A30025 (Aug. 3, 2004) (citing Allen v. Dep’t of the Air Force, EEOC Petition No. 04940006 (May 31, 1996)). In computing the net amount of backpay payable, an agency is required to offset any outside earnings received by an employee for other employment undertaken to replace the employment from which the employee was separated. See 5 C.F.R. § 550.805(e)(1). 2021000122 6 Specifically, § 706(g) of Title VII, 42 U.S.C. § 2000e-5(g), provides that “interim earnings or amounts earnable with reasonable diligence by the person or persons discriminated against shall operate to reduce the backpay otherwise allowable.” In this case, the Agency provided a detailed spreadsheet, with the side-by-side differences in salary, showing how it determined Petitioner’s salary in a supervisory position as compared to his non-supervisory position. For example, the Agency included various “AVS VP” increases for Petitioner’s supervisory salary, and the relevant bargaining unit increases for his non-supervisory salary. While we note that the calculations were challenging due to the differences in pay systems, there is no evidence of bad faith by the Agency as alleged by Petitioner. Petitioner asserts that the Agency’s calculations are based on “conjecture”, while his are based on “proven data.” However, we note that Petitioner’s request for an 8% salary increase was based on his 8% salary increases while in his bargaining unit position, and there is no evidence that such increases are applicable to a supervisory position. Although Petitioner is entitled to backpay as a component of his make-whole relief, he is not entitled to a sum greater than what he would have earned but for his demotion. See Ulloa v. U.S. Postal Serv., supra. A remedy which provides a petitioner with more relief than necessary to make him whole would constitute an unjustifiable windfall to the petitioner. See Thomas v. Dep’t of State, EEOC Appeal No. 01932717 (June 10, 1994), req. for recon. denied, EEOC Request No. 05940792 (May 25, 1995). Here, awarding Petitioner an 8% salary increase from $127,027.00 and an increase of 8% for each year since December 6, 2012, is not supported by the record and would amount to an unjustifiable windfall. The Agency provided documentation showing that it calculated Petitioner’s backpay, with interest, and paid him accordingly. In addition, the record contains documentation regarding adjustments to Petitioner’s awards, TSP, and life insurance (FEGLI). Accordingly, we find that the Agency in in compliance with the Commission’s order regarding Petitioner’s backpay and other benefits. Disciplinary Action Petitioner argued that the Agency failed to comply with the Commission’s order regarding discipline because it did not discipline the named responsible management officials. However, the Commission’s order stated that the Agency shall “consider taking appropriate disciplinary action” (emphasis added); and the Agency showed that it considered, but declined to issue, discipline. The Evaluating Manager found that there was no evidence showing that some of the named responsible management officials engaged in misconduct and that nearly eight years from the initial wrongdoing in 2012 had passed without any additional misconduct from these management officials. In addition, the Agency chose not to discipline TM, in particular, because she was previously counseled regarding her interaction with Petitioner and she had not engaged in further misconduct over the past eight years. 2021000122 7 Any additional discipline, reasoned the Agency, would not be corrective in nature and appear to be punitive. Therefore, we find that the Agency provided evidence that it considered, and decided against, taking disciplinary action against the named responsible management officials and that it complied with the Commission’s order. Accordingly, we find that the Agency has effectively and fully complied with the orders regarding Petitioner’s reinstatement; backpay award and other benefits; and the consideration of disciplinary action against the responsible management officials, issued in Garland C. v. Dep’t of Transportation, EEOC Appeal No. 0120182009 (Jan. 29, 2020). However, as noted above, the Agency made additional backpay payments to Petitioner in 2020. It still has an outstanding obligation to pay any additional income tax liability associated with these 2020 lump-sum payments. As such, we REMAND the matter so that the Agency may comply with the Order herein. ORDER To the extent it has not already done so, the Agency shall request that Petitioner submit his claim for compensation for any additional income tax liability associated with lump-sum payments. The Agency shall afford Petitioner 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 backpay in the form of regular salary during the backpay period, versus the additional taxes he paid due to receiving the backpay in a lump-sum award. Thereafter, within 60 calendar days after the time period expires for Petitioner to submit his claim for additional tax liability, the Agency shall issue a decision regarding claimed additional tax liability. IMPLEMENTATION OF THE COMMISSION’S DECISION (K0719) Under 29 C.F.R. § 1614.405(c) and §1614.502, compliance with the Commission’s corrective action is mandatory. Within seven (7) calendar days of the completion of each ordered corrective action, the Agency shall submit via the Federal Sector EEO Portal (FedSEP) supporting documents 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). 2021000122 8 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. Failure by an agency to either file a compliance report or implement any of the orders set forth in this decision, without good cause shown, may result in the referral of this matter to the Office of Special Counsel pursuant to 29 C.F.R. § 1614.503(f) for enforcement by that agency. 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. 2021000122 9 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 8, 2021 Date