[Redacted], Mercedez A., 1 Petitioner,v.Thomas J. Vilsack, Secretary, Department of Agriculture, Agency.

Equal Employment Opportunity Commission

Jun 14, 2021

Petition No. 2021000321 (E.E.O.C. Jun. 14, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Mercedez A.,1 Petitioner, v. Thomas J. Vilsack, Secretary, Department of Agriculture, Agency. Petition No. 2021000321 Request No. 2019004025 Agency No. CRSD-2012-01033 DECISION ON A PETITION FOR ENFORCEMENT On October 16, 2020, the Equal Employment Opportunity Commission (EEOC or Commission) docketed a petition for enforcement, pursuant to 29 C.F.R. § 1614.503, to examine the enforcement of an Order set forth in EEOC Request No. 2019004025 (October 17, 2019). BACKGROUND Petitioner was employed by the Agency in the Senior Executive Service as an Associate Chief Information Officer of Technology Planning, Architecture and E-Government at the Office of the Chief Information Officer, Departmental Management in Washington, D.C. In EEOC Request No. 2019004025, the Commission upheld EEOC Appeal No. 0120170574 which found that the Agency violated the Equal Pay Act of 1963, as amended, 29 U.S.C. § 206(d) et seq., and Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq., regarding Complainant’s gender and wages. The Order in EEOC Request No. 2019004025 directed the Agency in part to: 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. 2021000321 2 1. … pay Complainant back pay, with interest…retroactive to August 3, 2010… and other appropriate benefits that [she] would have been entitled to but for the discrimination. 2. … pay Complainant an additional amount of liquidated damages (equal to the back pay award) for its violation of the EPA. The matter was assigned to a Compliance Officer and docketed as Compliance No. 2020000471 on October 23, 2019. On July 20, 2020, via her attorney, Petitioner petitioned the Commission for enforcement. ANALYIS AND FINDINGS Petitioner does not dispute the Agency’s calculation of gross back pay of $87,304.87 or its interest calculation of $25,949.99 - a sum total of $113,254.86. But she contends she cannot discern whether the deductions the Agency calculated for federal and state income taxes, Social Security, Medicare and the like were correctly based just from the back pay award, or incorrectly also included the interest payment. She points to the Agency’s calculations at Ex. 1, p. 48 of her petition which does not break this down. Citing Complainant v. Transportation, EEOC Petition No. 0420130020 (Apr. 16, 2015), Complainant argues that the agency needs to give her in plain language documentation of how it calculated back pay (of which deductions are a part). In reply, the Agency argues that its payroll provider, the National Finance Center (NFC) made the back pay calculations, Complainant did not rebut them with rebuttal documentation, and NFC did not request additional information from the Agency. Nevertheless, the Agency is responsible for providing a plain language explanation for how it calculated a back pay award, which includes, as requested by Complainant, a breakdown of whether her deductions were calculated based on and taken from back pay only, or also interest. The Agency must provide Complainant this information. The Agency’s calculation of back pay of $87,304.87 was the sum during the back pay period of her increased base salary ($81,379.20), bonuses ($4,765.42) and the increase in the cash value ($1,160.25 increase) of her annual leave she received when she retired. The Agency paid Petitioner $81,379.20 in liquidated damages - the sum of her increased base salary for the back pay period. Citing various Commission authorities, Petitioner argues that back pay includes bonuses and annual leave. In its reply, the Agency does not specifically address this argument. We agree with Petitioner that the Commission’s order that the Agency pay “liquidated damages (equal to the back pay award)” also includes the back pay components of bonuses and increased pay out value of her annual leave when she retired. Smith v. Veterans Affairs, EEOC Petition 2021000321 3 No. 0420120003 (Mar. 21, 2013) (explaining, regarding a retired petitioner in an EPA case, that gross back pay includes all forms of compensation, including annual leave, and directing the Agency to pay liquidated damages equaling back pay). Bonuses are also a form of compensation. Thirdly, Petitioner argues that when the Commission orders back pay with benefits, the complainant is entitled to retroactive adjustment to retirement benefits. She argues that because retirement funds are administered by the Office of Personnel Management (OPM), the Agency cannot directly grant this remedy, but it must provide OPM what is necessary for OPM to make the adjustments. Complainant cites Smith (directing an agency to notify OPM of the petitioner's retroactive pay increase so OPM could recalculate petitioner's pension benefits); Petitioner v. Social Security Admin., EEOC Petition No. 0420140005 (Jul. 3, 2014) (agency must provide information to OPM to enable OPM to recalculate the petitioner's service credit and retirement benefits). In May 2020, Complainant emailed Agency counsel asking whether OPM was notified of her retroactive salary adjustments, and what was reported to OPM. On June 4, 2020, Agency counsel replied that it was her “understanding that NFC is taking care of OPM retirement portion.” In her July 2020 petition, Petitioner contends that she subsequently contacted OPM and it indicated it had not received such information. In reply to Complainant’s petition the Agency does not specifically dispute the above, but generally writes that it “fulfilled its obligation by giving proper notices to… OPM… on adjustments in Petitioner’s pay”. But it gives no documentation of doing so. We agree with Petitioner that she is entitled to documentation showing the Agency properly notified OPM of her retroactive pay increases. Petitioner is the prevailing party, and her petition is GRANTED. We remand this matter to the Agency for compliance with the following Order. ORDER To the extent it has not already done so, the Agency, within 90 calendar days of the date of this decision, shall: 1. Give Petitioner documentation, using plain language, breaking down whether its calculation of her deductions was based on the $87,304.87 in back pay only, or also incorrectly based on her $25,949.99 interest, and if so, resolve this with her. 2. Pay Petitioner liquidated damages in the amount of $87,304.87. 2021000321 4 3. Notify OPM of Petitioner’s pay adjustments for the back pay period and take any related action necessary so OPM can recalculate Petitioner’s retirement annuity, and give her documentation of this. ATTORNEY'S FEES (H1019) If Complainant has been represented by an attorney (as defined by 29 C.F.R. § 1614.501(e)(1)(iii)), she/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 receipt of this decision. 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). 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. 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. 2021000321 5 COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (R0610) This is a decision requiring the Agency to continue its administrative processing of your complaint. However, if you wish to file a civil action, you have the right to file such action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. In the alternative, you may file a civil action after one hundred and eighty (180) calendar days of the date you filed your complaint with the Agency, or filed your appeal with the Commission. If you file a civil action, you must name as the defendant in the complaint the person who is the official Agency head or department head, identifying that person by his or her full name and official title. Failure to do so may result in the dismissal of your case in court. “Agency” or “department” means the national organization, and not the local office, facility or department in which you work. Filing a civil action will terminate the administrative processing of your complaint. RIGHT TO REQUEST COUNSEL (Z0815) If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant’s Right to File a Civil Action for the specific time limits). FOR THE COMMISSION: ______________________________ Carlton M. Hadden’s signature Carlton M. Hadden, Director Office of Federal Operations June 14, 2021 Date