[Redacted], Karry S., 1 Petitioner,v.John P. Roth, Acting Secretary, Department of the Air Force, Agency.

Equal Employment Opportunity Commission

May 19, 2021

Appeal No. 0120182301 (E.E.O.C. May. 19, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Karry S.,1 Petitioner, v. John P. Roth, Acting Secretary, Department of the Air Force, Agency. Petition No. 2020003478 Appeal No. 0120182301, Request No. 0520160078 Hearing No. 480-2013-00018X Agency No. 9T0R09002 DECISION ON A PETITION FOR ENFORCEMENT On January 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 Request No. 0520160078 (Feb. 7, 2018). 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. For the following reasons, the Commission GRANTS the petition, in part, and REMANDS the matter for further processing. BACKGROUND At the time of events giving rise to this complaint, Petitioner worked as a School Age Program Coordinator, YA-02, for the 35th Force Support Squadron at Misawa Air Base in Japan. Petitioner filed a complaint in which she alleged that the Agency discriminated against her on the bases of race (African-American) and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq. 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 2020003478 Following an EEO investigation into Petitioner’s allegations, Petitioner requested a hearing before an EEOC Administrative Judge (AJ). On December 1, 2011, the AJ assigned to the case issued a decision in part against the Agency. The AJ subsequently issued a Final Decision regarding Liability and Damages, including attorneys’ fees, on July 16, 2014, which incorporated three earlier decisions/orders. The AJ found that Petitioner established a prima facie case of discrimination on the basis of reprisal for prior EEO activity as to both her removal from her probationary position as a Supervisory School Age Program Coordinator and her subsequent removal from federal service. Consequently, the AJ ordered the Agency to reinstate Petitioner, remove all references to the adverse action, remit attorneys’ fees, provide EEO training to the responsible management officials, and prominently post a notice of the finding at its facility. The AJ denied Petitioner’s entitlement to compensatory damages. By final order dated September 2, 2014, the Agency informed Petitioner that it would not implement the AJ’s decision and simultaneously filed an appeal with the Commission. Petitioner also filed an appeal challenging the remedies ordered by the AJ. In EEOC Appeal No. 0720140038 (Oct. 9, 2015), the Commission upheld the AJ’s orders. In EEOC Request No. 0520160078 (Feb. 7, 2018), the Commission modified its Order in EEOC Appeal No. 0720140038, to direct the Agency to conduct a supplemental investigation concerning Petitioner’s entitlement to compensatory damages. Petitioner responded to the Agency’s investigation into damages and requested in relevant part, the following remedies: retroactive backpay and benefits including all increases, performance awards given to employees not affected by discrimination, plus interest from January 7, 2010 until she was placed back on the payroll. On June 29, 2018, the Agency issued a final decision on the issue of compensatory damages. The Agency concluded, in relevant part, that the harm Petitioner suffered entitled her to compensatory damages in the amount of $100,000. As for the issue of backpay, the Agency informed Petitioner that it would begin computing her entitlement to backpay for the period commencing from January 7, 2010, the effective date of Petitioner’s removal, to July 15, 2014, the effective date of Petitioner’s return to duty status. Petitioner subsequently appealed the final decision to the Commission, wherein she argued that she was entitled to compensatory damages in excess of $100,000 and relief from tax consequences as a result of receiving backpay. Ultimately, the Commission issued a decision affirming the Agency’s award of $100,000 in compensatory damages. See Karry S. v. Dep’t of the Air Force, EEOC Appeal No. 0120182301 (Nov. 21, 2019). As for Petitioner’s claimed tax expenses, the Commission denied her claim because the Commission found that the record was “devoid of any evidence showing that Petitioner submitted evidence in support of her claim for adverse tax consequences.” The Commission stated: 3 2020003478 [w]e note that the Agency’s June 29, 2018, final decision indicates that the Agency would begin calculating Complainant’s entitlement to backpay for the period commencing from January 7, 2010, the effective date of Complainant’s removal, to July 15, 2014, the effective date of Complainant’s return to duty status. To the extent Complainant has not done so, she should submit any evidence related to her claimed adverse tax consequences during the Agency’s supplemental investigation on backpay. Following the supplemental investigation, the Agency determined that Petitioner was entitled to a total of $241,300.59 in adjusted backpay and interest. The Agency provided the following breakdown of her earnings: Year Earnings/Premiums Interim/Outside Earnings (OE) 2010 $41,457.28 0 2011 $46,892.80 $28,502 2012 $46,945.60 793.00 2013 $46,945.60 0 2014 $30,183.36 0 2015 $3,783.20 0 2016 $1,802.40 0 2017 0 0 2018 0 0 Gross Pay Adjusted Gross Pay (Gross Pay - OE) Interest Net Backpay $218,010.24 $188,715.24 $52,585.35 $29,295.00 TOTAL $241,300.59 See Petitioner’s Petition for Enforcement File at 8. 4 2020003478 Petitioner subsequently filed a petition for enforcement challenging both the amount of backpay awarded and the calculation used to assess the backpay. ARGUMENTS IN PETITION In her petition, Petitioner argues that the start date for the backpay and yearly salary are not correct. She maintains that her Standard Form 50 (SF-50) reflects that she earned an annual salary of $44,376 at the time of her removal on January 7, 2010. Petitioner claims that the statement from the Defense Finance Accounting Service (DFAS) shows that she was paid $170.08 for the pay period ending on January 16, 2010.2 She asserts that since the 14-day period covered January 2, 2010 through January 16, 2010, and there were seven days remaining in the pay period when she was fired (i.e., January 7, 8, 11-15, 2010), she should have been pay for those seven days. Petitioner maintains that the “interest due [to] her is obviously affected by the incorrect calculation.” Petitioner further argues that the Agency, through DFAS, miscalculated her earnings for the year 2010. In this regard, Petitioner asserts that while the Agency summarized her earnings for 2010,3 as $41,457.28, her salary for 2010 was actually $44,378.00 until it rose to $45,718.00 on August 15, 2010. By her calculation, “[s]ince she only missed three (3) pay days (January 3rd, 4th and 5th) for the period, then subtracting out each of the three (3) days at $170.08 per day totals $510.24. Subtracting $510.24 from her yearly salary of $44,376 leaves $43,865.76.” Therefore, she maintains that to claim her earnings for 2010 were $41,457.28 is incorrect, even before considering the August 15, 2010 pay increase and adversely affects the interest owed to her. Finally,4 Petitioner states that she does not understand “how her earnings for 2014 and 2015 were reduced.” In this regard, she acknowledges that the reduction in salary for 2016 is understandable, given that she was reemployed that year. However, she does not know why her earnings dropped in 2014 and 2015. The Agency filed a brief opposing the petition. In support of its argument that the Agency correctly calculated Petitioner’s backpay, the Agency provided a declaration from an Analyst with DFAS. Regarding the payment of $170.08, the Analyst provided the following explanation: On pay period ending January 16, 2010, the [Petitioner] was paid for eight (8) hours pursuant to the timecard attached hereto as Exhibit “1” (the 24 hours of sick 2 In Petitioner’s brief, she states that her first pay period ended on January 16, 2012. Having reviewed the DFAS accounting statement, as well as the Agency’s brief, we find that her first pay period was on January 16, 2010. 3 In Petitioner’s brief, she states that the “agency summarized [her] earnings at $41,457.28 for 2018. Having reviewed the DFAS accounting statement, we note that Petitioner earned in $41,457.28 in 2010. She did not receive income from the Agency in 2018. For this reason, we find Petitioner’s reference to 2018 to be a mistake. 4 We note that Petitioner’s brief does not raise the issue of relief for adverse tax consequences. 5 2020003478 leave reflected on the timecard were for days predating January 7, 2010 which was the commencement of the backpay period). The [eight] hours were paid at the [Petitioner’s] then current hourly rate of $21.26, resulting in a gross payment of $170.08. Regarding the calculation of Petitioner’s earnings for 2010, the Analyst explained that “since the backpay period started on January 7, 2010, the earnings from the end of calendar year 2009 were not captured as ‘2010’ earnings’ in the backpay audit.” As for Petitioner’s August 15, 2010 pay raise, the Analyst explained that Petitioner’s pay increased from $21.26 per hour to $21.91 per hour during pay period ending August 28, 2010 and that increased is reflected in the audit.” With regard to why Petitioner’s pay dropped in 2014, 2015, and 2016, the Analyst explained that “[t]he [Petitioner] is only entitled to the difference between what she was paid and what she should have been paid, which is why her 2014, 2015, and 2016 backpay dropped.” In his regard, the Analyst emphasized that the Agency “resumed paying the [Petitioner] on pay period ending July 26, 2014 and continued to pay her through the end of calendar year 2016.” The Agency argues that the petition should be denied because the “Agency has demonstrated that the backpay was properly calculated.” ANALYSIS AND FINDINGS EEOC Regulation 29 C.F.R. § 1614.503(a) provides that an aggrieved person may petition for enforcement of an order issued by the Commission under its appellate jurisdiction. As noted above, the Commission in EEOC Request No. 0520160078, ordered the Agency to conduct a supplemental investigation into Petitioner’s entitlement to compensatory damages and issue final decision on the matter. The Commission subsequently issued a decision in EEOC Appeal No. 0120182301, wherein the Commission affirmed the Agency’s final decision awarding $100,000 in compensatory damages to Petitioner; however, the Commission did not make any findings on Petitioner’s entitlement to backpay because at the time of the appeal, the Agency was still calculating Petitioner’s entitlement to backpay. As the instant dispute on backpay arises out of our decision in EEOC Request No. 0520160078, we find that the petition is properly before us. The purpose of a back-pay award is to restore a prevailing Petitioner to the position the individual would have occupied absent the discrimination. Albemarle Paper Co. v. Moody, 442 U.S. 405, 418-19 (1975); Davis v. U.S. Postal Serv., EEOC Petition No. 04900010 (November 29, 1990). A back-pay claimant under Title VII generally has a duty to mitigate damages. See 29 C.F.R. § 1614.501(d). The Agency is required to make certain deductions from back-pay awards to ensure that the employee does not receive more in total benefits than he would have received in the absence of the personnel action. 6 2020003478 The person who has been discriminated against must receive a sum of money equal to what would have been earned by that person in the employment lost through discrimination (gross back-pay) less what was actually earned from other employment during the period, after normal expenses incurred in seeking and holding the interim employment have been deducted (net interim earnings). The difference between gross back-pay and net interim earnings is net back- pay due. Net back-pay accrues from the date of discrimination, except where the statute limits recovery, until the discrimination against the individual has been remedied. Gross back-pay 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)); Perez v. U. S. Postal Serv., EEOC Petition No. 04A40041 (March 3, 2005). The Commission recognizes that precise measurement cannot always be used to remedy the wrong inflicted, and therefore, the computation of back-pay awards inherently involves some speculation. Hanns v. U.S. Postal Serv., EEOC Petition No. 04960030 (Sept. 18, 1997). However, uncertainties involved in a back-pay determination should be resolved against the agency which has already been found to have committed the acts of discrimination. Id. The Commission finds that it is reasonable to require the agency to provide a clear and concise “plain language” statement of the formulas and methods it used to calculate petitioner's back-pay. See Vashi v. U.S. Postal Serv., EEOC Petition No. 0420060009 (Dec. 5, 2007) (noting that it is the agency’s obligation to ensure that its back-pay calculations are clear, supported in the record and in accordance with 29 C.F.R. § 1614.501). Our analysis begins with Petitioner’s contention that the Agency failed to properly calculate her pay for the period covering January 3, 2010 to January 16, 2010.5 While we acknowledge the Agency’s contention that Petitioner was paid $170.08 for eight hours of work on January 7, 2010 (her date of termination),6 we discern no basis as to why Petitioner was not entitled to backpay for the six days remaining in the pay period (i.e., January 8, 11-15, 2010). As Petitioner is entitled to the pay she would have received, absent the discrimination, we order the Agency to pay Petitioner a lump sum of $1,020.48 plus interest representing backpay for those six days. See Albemarle Paper Co., supra.7 5 In her brief, Petitioner argues that the Agency did not calculate her pay for the period covering Saturday, January 2, 2010 to Saturday, January 16, 2010. See Petitioner’s Petition for Enforcement File at 4-5. We note, however, that the pay period actually began on Sunday, January 3, 2010. Id. at 35; see also https://www.gsa.gov/cdnstatic/payroll-calendar-2010.pdf 6 See Agency’s Brief at 10 (showing that Petitioner was paid for eight hours of regular time on January 7, 2010). 7 Though the Analyst maintained that Petitioner took 24 hours of leave prior to January 7, 2010, we find such evidence to be irrelevant for the purposes of calculating Petitioner’s entitlement to backpay from the date of her reinstatement on January 7, 2010. 7 2020003478 We turn now to Petitioner’s argument that the Agency miscalculated her earnings for 2010. While we agree with Petitioner that the Agency’s calculation of backpay for 2010 is incorrect due to the Agency’s failure to pay her backpay for the remaining six days in the pay period ending January 16, 2010, we find no other issues regarding the Agency’s calculation of backpay for the year. As noted above, the Analyst explained that “since the backpay period started on January 7, 2010, the earnings from the end of calendar year 2009 were not captured as ‘2010’ earnings’ in the backpay audit.” In lay terms, this means that Petitioner’s earnings for the first pay period of 2010 (i.e., Sunday, December 20, 2009 to Saturday, January 2, 2010)8 were not included as 2010 earnings, thereby causing the appearance that Petitioner was not properly paid for the year. We note that Petitioner took leave on January 4, 5, and 6, 2010, and she was terminated on January 7, 2010 (but paid). We find that the Agency will have fully compensated Petitioner for 2010 upon payment of $1,020.48 plus interest. As for Petitioner’s contention that she does not know why her earnings dropped in 2014 and 2015, we find that the Agency has sufficiently explained the reason for the decline. As noted above, the Analyst attributed the decline to “the difference between what [Petitioner] was paid and what she should have been paid, which is why her 2014, 2015, and 2016 backpay dropped.” We agree with Petitioner that the Agency’s accounting summary is somewhat confusing with regard to her earnings, as the Agency simply listed what was owed to her without listing what the Agency had already paid her. Our review of record shows that Petitioner’s income was $48,724.80 in 2014 and $51,155.20 in 2015. See Petitioner’s Petition for Enforcement File at 13- 14. After subtracting the balance paid, the Agency owed Petitioner $30,183.36 in 2014 and $3,783.20 in 2015. Id. Contrary to her contention that her income decreased in 2014 and 2015, we find that the record clearly shows that her total earnings increased. However, she was owed less than previous years because she had already been paid. We ultimately have no issues regarding the Agency’s calculation of backpay for 2014 and 2015. For 2016, however, we find that the Agency has not sufficiently explained its calculation on backpay. Our review of the Agency’s calculations for 2016 reveals that the Agency initially determined that it owed Petitioner $4,763.40, representing the difference between her annual salary of $57,151.04 and the amount of $52,388.00, which had already been paid to her. See Petitioner’s Petition for Enforcement File at 15. Ultimately, the Agency paid her $1,802.40 for the year. Id. at 8. Having reviewed both the Agency’s brief and Analyst’s declaration, we are unable to discern the reason for the decrease from $4,763.40 to $1,802.40. While unrealistic exactitude is not required in back-pay determinations, uncertainties involved in such determinations usually are resolved against the discriminating employer. Hairston v. McLean Trucking Co., 520 F.2d 226 (4th Cir. 1975); Smallwood v. United Air Lines, Inc., 728 F.2d 614, 616, n. 5 (4th Cir.), cert. denied, 469 U.S. 832 (1984); Harrington v. Tennessee Valley Auth., EEOC Petition No. 04900007 (Dec. 27, 1990). 8 See https://www.gsa.gov/cdnstatic/payroll-calendar-2009.pdf.pdf (showing that first pay period of 2010 began on December 20, 2009); see also https://www.gsa.gov/cdnstatic/payroll-calendar- 2010.pdf (showing that first pay period of 2010 ended on January 2, 2010). 8 2020003478 We shall therefore resolve the discrepancy against the Agency and order the Agency to pay Petitioner in the amount of $2,961 plus interest, representing the difference between its initial calculation of $4,763.40 and its final calculation of $1,802.40. Additionally, because Petitioner is a prevailing party in this petition for enforcement, we also order the Agency to award Petitioner attorney’s fees incurred as a result of her need to file this petition for enforcement. CONCLUSION We GRANT the petition for enforcement in part and REMAND the matter to the Agency for further processing as directed in the Order below. ORDER Within sixty (60) calendar days of the date this decision is issued, the Agency shall pay Petitioner in the amounts of $1,020.48 and $2,961, plus interest, representing outstanding backpay for the years 2010 and 2016. 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). Further, the report must include supporting documentation of the Agency's calculation of back pay and other benefits due Petitioner, including evidence that the corrective action has been implemented. ATTORNEY’S FEES (H1016) If Petitioner 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 (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). 9 2020003478 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 Petitioner and his/her representative. If the Agency does not comply with the Commission’s order, the Petitioner may petition the Commission for enforcement of the order. 29 C.F.R. § 1614.503(a). The Petitioner 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 Petitioner 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 Petitioner 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. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0617) The Commission may, in its discretion, reconsider the decision in this case if the Petitioner 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. Petitioner’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. 10 2020003478 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. 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). PETITIONER’S RIGHT TO FILE A CIVIL ACTION (T0610) This decision affirms the Agency’s final decision/action in part, but it also requires the Agency to continue its administrative processing of a portion of your complaint. 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 on both that portion of your complaint which the Commission has affirmed and that portion of the complaint which has been remanded for continued administrative processing. 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 your appeal with the Commission, until such time as the Agency issues its final decision on your complaint. 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. 11 2020003478 Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Petitioner 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 May 19, 2021 Date