0120071675
07-02-2009
Susan Fitzgerald, Complainant, v. Janet Napolitano, Secretary, Department of Homeland Security, Agency.
Susan Fitzgerald,
Complainant,
v.
Janet Napolitano,
Secretary,
Department of Homeland Security,
Agency.
Appeal No. 0120071675
Hearing No. 110200500050X
Agency No. FLE032214T
DECISION
On December 7, 2006, complainant brought this matter before the Commission
regarding her contention that the agency was not in compliance with its
October 30, 2006 decision, which implemented the decision of an EEOC
Administrative Judge (AJ) who found discrimination.
BACKGROUND
The record reveals that complainant filed several complaints with
the agency regarding her non-selection for ten promotional and
detail opportunities between 2002 and 2004. At the conclusion of the
investigation, complainant was provided with a copy of the report of
investigation and notice of her right to request a hearing before an
EEOC Administrative Judge (AJ). Complainant timely requested a hearing,
which was held July 19-22, 2005 and November 14-15, 2005. On June 12,
2006, the AJ issued a decision finding discrimination on the bases of
age, sex, and reprisal when complainant was not selected for a series
of vacancies for which she was qualified. On September 11, 2006, the
AJ held a hearing on damages and then issued a Bench Decision.
As relief, the AJ ordered, in pertinent part:
1. The agency is ordered to pay the complainant the difference between
her compensation actually received and the full range of compensation,
salary, bonus, rate of pay, etc., that she would have earned if she had
been promoted in November of 2002 to the position that was ultimately
given to [selectee]. The agency is ordered to ascertain the proper step,
rate of pay, cost of living increase, bonus, TSP or other retirement
entitlement, and any other term of compensation that the complainant
would have received had she gotten that promotion, plus legal interest.
This amount shall be ascertained for the time that the complainant would
have gotten the promotion - November 1, 2002, through at least the time
that the complainant left the workplace. The amount of awarded back
pay at a minimum includes any bonuses earned by [selectee] during the
period from her promotion to the time the complainant left the workplace.
2. Should it be determined that the complainant was improperly terminated
from her employment, the complainant shall receive an extension of her
enhanced back pay until she is returned to the workplace. The agency
will pay the complainant interest on all of the above amounts at the
appropriate legal rate of interest compounded quarterly.
The AJ also awarded complainant $20,000.00 in compensatory damages, and
$247,500.00 in attorney's fees and $3,379.65 in costs. Other equitable
relief included a posting, training, and the requirement that the agency
consider disciplinary action against the responsible employee.
On October 30, 2006, the agency subsequently issued a final order
adopting the AJ's finding that complainant proved that she was subjected
to discrimination as alleged.
CONTENTIONS ON APPEAL
On appeal, complainant, through her attorney, contends that the agency
failed to comply with the AJ's decision. Complainant maintains that
on December 27, 2006, she received payment for attorney's fees and
costs, and also received payment to herself in the amount of $28,000.
Complainant sent a Notice of Non-Compliance to the agency on January
26, 2007, stating that the agency failed to comply because there was no
written statement detailing the calculation of back pay, TSP benefits,
and awards. On March 27, 2007, complainant states that the agency
sent her a Notice of Compliance with some calculations, but that it was
deficient in several ways.
In response, the agency provided further evidence of calculations of
back pay, awards and TSP contributions.
ANALYSIS AND FINDINGS
EEOC regulations provide that a final agency action that has not been
the subject of an appeal shall be binding on the parties. 29 C.F.R. �
1614.504(a). The regulations further provide that if a complainant
believes that the agency has not complied with the terms of the final
decision, that he or she shall so advise the agency within thirty
days of the date on which the complainant knew or should have known
of the non-compliance. Id. If the complainant is not satisfied with
the agency's response, he or she may appeal to the Commission for a
determination as to whether the agency is in compliance with the terms
of its final decision. 29 C.F.R. � 1614.504(b).
Complainant raises several deficiencies with regard to the agency's
calculation of her back pay award. Specifically, complainant contends
that the agency failed to use proper step increases, failed to disclose
the rate of pay, did not utilize Cost of Living Increases, made incorrect
bonus and TSP calculations, failed to award for overtime, failed to deduct
her TSP payments from her back pay award prior to deducting taxes, failed
to consider lost growth of her TSP account, and failed to provide her with
an SF-50. She also maintains the agency failed to credit her annual leave,
post a notice of the finding of discrimination, provide training, and
failed to consider issuing discipline against the responsible employee.
The purpose of a back pay award is to restore to complainant the
income she would have otherwise earned but for the discrimination.
See Albemarle Paper Co. v. Moody, 442 U.S. 405, 418-19 (1975); Davis
v. United States Postal Service, EEOC Petition No. 04900010 (November 29,
1990). 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 rates of pay, transfers, promotions,
and privileges of employment to which the petitioner would have been
entitled but for the discrimination. Allen v. Department for the Air
Force, Petition No. 04940006 (May 31, 1996) (citing Williams v. United
States Postal Service, EEOC Appeal No. 01933156 (May 4, 1994), request for
reconsideration denied, EEOC Request No. 05940680 (February 16, 1995)).
The Commission construes "benefits" broadly to include, inter alia,
annual leave, sick leave, health insurance, overtime and premium pay,
night differentials, and retirement contributions. Vereb v. Department
of Justice, Petition No. 04980008 (February 26, 1999).
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. United
States Postal Service, EEOC Petition No. 04960030 (September 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. See also Klook v. United
States Postal Service, EEOC Petition No. 04A40012 (June 16, 2004)
citing Davis v. United States Postal Service, EOC Petition No. 04900010
(November 29, 1990); and Besemer v. United States Postal Service, EEOC
Petition No. 04890005 (December 14, 1989). 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 also Vashi v. United Stales Postal Service,
EEOC Petition No. 0420060009 (December 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).
After a careful review of the record, we find there is insufficient
information in the record to determine whether the agency provided
complainant with the appropriate back pay award. There is no information
in the record as to the rate of pay, step, or cost of living increases
used in the agency's calculation. Although the agency provided a listing
of the gross amount and net amount of her projected salary, it failed
to provide details as to how the salary and overtime were calculated,
so that the information was meaningful to complainant and her attorney.
Although there is an affidavit from the Deputy Chief Financial Officer
explaining that she included interest in her calculations, there is no
information as to the rate of interest, or the amount of interest that
accrued.
The agency also failed to provide detailed evidence as to how
it calculated complainant's TSP and retirement calculations. The
Commission has held that an award of back pay requires the agency to
make retroactive tax-deferred contributions to complainant's TSP account
during the back pay period. Howgate v. United States Postal Service,
EEOC Petition No. 04990031 (February 4, 2000) (citing Fiene v. United
States Postal Service, EEOC Petition No. 04920009 (September 3, 1992)).
The Commission has also held that, to the extent an employee would have
received government contributions to a retirement fund as a component of
salary, the employee is entitled to have retirement benefits adjusted
as part of the back pay award, including receiving the earnings which
the account would have accrued during the relevant period. Id. (citing
Robinson v. Department of the Treasury, EEOC Petition No. 04980006
(July 2, 1998); Lee v. Department of the Army, EEOC Petition No. 04980020
(October 1, 1998); Korchnak v. United States Postal Service, EEOC Petition
No. 04960028 (December 19, 1996) (petitioner who was terminated before
becoming eligible for TSP entitled to enrollment in the program); Wrigley
v. United States Postal Service, EEOC Petition No. 04950005 (February 15,
1996).
In her supplementary petition for enforcement, complainant claims that
the agency "failed to make appropriate deductions on a pre-tax basis
forcing complainant into a higher tax bracket." The Commission has
held that where an agency pays back pay and other income payments in
a lump sum payment the agency is responsible for a petitioner's proven
increased income tax burden. See Goetze v. Department of the Navy, EEOC
Appeal No. 01991530 (August 22, 2001); Holler v Department of the Navy,
EEOC Appeal Nos. 01982627 & 01990407 (August 22, 2001). In these cases,
the Commission held that an award to cover additional tax liability for
receipt of back pay in a lump sum is available and that the complainant
bears the burden to prove the amount to which s/he claims entitlement.
Id. Courts that have discussed claims for compensation for additional
tax liability stemming from a lump sum payment have demanded probative
calculations by petitioners. Barbour v. Mediantic Management Corp.,
952 F.Supp. 857, 865 (D.C. 1997) (denied award due to failure to provide
evidence on difference between taxes paid on lump sum front pay award
and amount of taxes that would have been paid had the salary been earned
over time). However, until the final amount of the back pay award
is determined, complainant has not had the opportunity to establish
her tax liability based on such an award. Accordingly this matter is
remanded to the agency. See Vashi v. United Stales Postal Service,
EEOC Petition No. 0420060009 (December 5, 2007).
Complainant also contends that the agency failed to include lost growth
on her TSP in her award, and failed to provide her with an SF-50. As to
these issues, we find the order does not require the agency to provide
this relief. Finally, complainant contends that the agency failed
to post a notice of discrimination, failed to provide training and
failed to consider taking disciplinary action against the responsible
employee. The affidavits in the record support the agency's position
that training, posting, and the consideration of disciplinary action
have been accomplished. Accordingly, we find the agency has complied
with the order with respect to these issues.
CONCLUSION
After a careful review of the record, we find the agency has complied
with its order to provide training, consider taking disciplinary action,
and posting a notice of discrimination. However, we direct the agency
to recalculate complainant's back pay pursuant to the guidance set
forth in this decision, and to provide a detailed explanation as to
how complainant's back pay award was reached. In addition, the matter
of complainant's claim of compensation of any adverse tax consequences
resulting from a lump sum payment of back pay is remanded to the agency
for further consideration.
ORDER
1. Within sixty (60) days from the date this decision becomes final, the
agency shall calculate the back pay and interest owed to complainant in
a manner prescribed above and in accordance with 29 C.F.R. � 1614.501.
The agency shall provide a copy of these calculations to complainant.
Such calculations shall include a detailed statement clarifying how
complainant's back pay award was reached. The statement shall consist
of a clear and concise "plain language" statement of the methods of
calculations used for the instant matter and actual calculations applying
said formulas and methods.
2. The complainant shall cooperate in the agency's efforts to compute
the amount of back pay and benefits due, and shall provide all relevant
information requested by the agency. If there is a dispute regarding the
exact amount of back pay and/or benefits, the agency shall issue a check
to the complainant for the undisputed amount within sixty (60) calendar
days of the date the agency determines the amount it believes to be due.
The complainant may petition for enforcement or clarification of the
amount in dispute. The petition for clarification or enforcement must
be filed with the Compliance Officer, at the address referenced in the
statement entitled "Implementation of the Commission's Decision."
3. After the agency has calculated and paid complainant's back pay award,
complainant shall have sixty (60) calendar days following the end of
the tax year in which the final payment is received to calculate the
adverse tax consequences of any lump sum back pay awards, if any, and
notify the agency. Following receipt of complainant's calculations,
the agency shall have forty five (45) days to issue petitioner a check
compensating her for any adverse tax consequences established, with a
written explanation for any amount claimed but not paid.
4. The agency is further directed to submit a report of compliance, as
provided in the statement entitled "Implementation of the Commission's
Decision." The report shall 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 (H0900)
If complainant has been represented by an attorney (as defined by
29 C.F.R. � 1614.501(e)(1)(iii)), he/she 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 this
decision becoming final. 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 (K0408)
Compliance with the Commission's corrective action is mandatory.
The agency shall submit its compliance report within thirty (30)
calendar days of the completion of all ordered corrective action. The
report shall be submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. The agency's report must contain supporting
documentation, and the agency must send a copy of all submissions to
the complainant. 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 (M1208)
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 or within twenty (20) calendar days of
receipt of another party's timely request for reconsideration. See 29
C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for
29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999). All requests
and arguments must be submitted to the Director, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 77960,
Washington, DC 20013. 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 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).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (T0408)
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 (Z1008)
If you decide to file a civil action, and if you do not have or cannot
afford the services of an attorney, you may request from the Court that
the Court appoint an attorney to represent you and that the Court also
permit you to file the action without payment of fees, costs, or other
security. See Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. � 2000e et seq.; the Rehabilitation Act of 1973, as amended,
29 U.S.C. �� 791, 794(c). The grant or denial of the request is within
the sole discretion of the Court. Filing a request for an attorney with
the Court does not extend your time in which to file a civil action.
Both the request and the civil action must be filed within the time
limits as stated in the paragraph above ("Right to File a Civil Action").
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
July 2, 2009
Date
2
0120071675
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
8
0120071675