Gerald L.,1 Petitioner,v.Elaine L. Chao, Secretary, Department of Transportation (Federal Railroad Administration), Agency.Download PDFEqual Employment Opportunity CommissionSep 11, 20202019005540 (E.E.O.C. Sep. 11, 2020) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Gerald L.,1 Petitioner, v. Elaine L. Chao, Secretary, Department of Transportation (Federal Railroad Administration), Agency. Petition No. 2019005540 Request No. 0520180500 Agency No. 2005-19018-FRA-03 DECISION ON A PETITION FOR ENFORCEMENT On August 29, 2019, 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. 0520180500 (October 11, 2018). The Commission accepts this petition for enforcement pursuant to 29 C.F.R. § 1614.503. Petitioner alleges that the Agency failed to fully comply with the Commission’s order in EEOC Request No. 0520180500. BACKGROUND Prior to the events at issue, Petitioner was employed by the Agency as a Railroad Safety Inspector (Motive Power & Equipment), GS-1212-12, in Charlotte, North Carolina, but was terminated on November 21, 1997. In September 2010, after a jury verdict in his favor, the United States District Court for the Northern District of Georgia, 1:00-cv-2437 ordered the Agency to reinstate Petitioner effective October 1, 2010 to his GS-12 position or an equivalent position, and pay him $923,656.08 for lost wages and benefits, with interest up to his reinstatement. In compliance with the order, the Agency returned Petitioner to his job effective October 1, 2010. 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. 2019005540 2 However, effective March 26, 2015, the Agency again terminated Petitioner for cause. He filed an appeal with the Merit Systems Protection Board (MSPB). It upheld the removal. Meanwhile, in 1999, Petitioner began applying for jobs with the Agency. In February 2005, he filed an EEO complaint about not being selected for over 100 separate vacancies. While the Agency accepted nearly all of them for investigation, its EEO investigator chose 14 and only investigated them. In Gerald L. v. Transportation, EEOC Request No. 0520160156 (Jun. 5, 2018), the Commission drew an adverse inference that had there been a complete report of investigation, Petitioner would have proven he was unlawfully retaliated against for his prior protected activity when, on October 25, 2004, he was not selected to be Deputy Regional Administrator, GS-2101- 13[/14] in Vancouver, Washington. But because the MSPB previously upheld Petitioner’s termination for cause effective March 26, 2015, the Commission directed that rather than reinstate Petitioner, the Agency amend its records to reflect he served as Deputy Regional Administrator “between the effective date of his reinstatement following the discriminatory October 25, 2004 non-selection and March 26, 2015 [the date of his subsequent termination], with the appropriate back pay and benefits.” Thereafter, both parties requested the Commission reconsider its decision in EEOC Request No. 0520160156. The Commission opened a new request to reconsider, and clarified that its previous order that the Agency change its records to show Petitioner served as Deputy Regional Administrator between “the effective date of his reinstatement following the discriminatory October 25, 2004 non-selection…” referred to the starting date of October 1, 2010, the effective Court ordered reinstatement date. The Commission repeated the orders from EEOC Request No. 0520160156 that the Agency determine the appropriate amount of back pay, with interest and other benefits pursuant to 29 C.F.R. § 1614.501. Gerald L. v. Transportation (FRA), EEOC Request No. 0520180500 (Oct. 11, 2018). On petition for enforcement, Petitioner makes the following arguments: (1) The Agency did not comply with the order in EEOC Request No. 0520180500 because it commenced back pay on October 1, 2010, but the date of his discriminatory non-selection was October 25, 2004. (2) While the Agency changed his employment records to show he received a career ladder promotion from GS-13 to GS-14, by March 26, 2015, he should have progressed to Step 6, not Step 5. (3) The Agency has not shown he was paid for the overtime, awards, and bonuses the occupants of the GS-13/14 position he was denied. 2019005540 3 (4) Sometime after his illegal termination on November 21, 1997, he was forced to begin the early withdrawal of “Social Security funds” and his government annuity.2 Even though, after he was reinstated, he stopped the withdrawals and repaid part of the funds, the withdrawals resulted in at least a 6% reduction in his social security and government annuity payments. The Commission should order the Agency to recalculate his annuities so his payments are increased by 6%. (5) The Commission should also order the Agency to recalculate his annuities so it they are based on his GS-13/14 levels. (6) The Agency should have offered him the opportunity to maximize his Thrift Savings Plan (TSP) contributions (and associated Agency match). (7) The Agency did not provide him adequate documentation on its calculation of back pay and benefits. (8) He is entitled to an additional payment (gross up) for the tax consequence of receiving the wages due him in the form of a back-pay lump sum. (9) He paid a Certified Public Accountant (CPA) a fee of $2,755 for calculations made in May 2019, on what is due him in back pay, benefits, interest, and tax consequences gross up, and the Agency should reimburse this fee. In opposition to Petitioner’s petition, the Agency argues that it complied with the Commission’s order to provide him the appropriate amount of back pay and other benefits due pursuant to 29 C.F.R. § 1614.501. ANALYSIS AND FINDINGS EEOC Request No. 0520180500 directed that back-pay commence on October 1, 2010. See sentence from which footnote 2 is dropped, and footnote 2. Accordingly, the Agency complied with the Commission’s order by commencing back pay on October 1, 2010. Likewise, the Agency correctly progressed Petitioner to Step 5, not Step 6, by March 26, 2015, since the step increases were concomitant with back pay, which started on October 1, 2010. In accordance with our order the Agency promoted Petitioner from GS-12, Step 10 to GS-13, Step 6, on October 1, 2010, gave him a career ladder promotion to GS-14, Step 3 on October 9, 2011, increased him to Step 4 on October 7, 2012, and to Step 5 on October 5, 2014. Under 5 USC § 5335, periodic step increases for steps 4 - 7 are two years per step. Petitioner separated from the Agency on March 26, 2015. The Deputy Regional Administrator who worked the longest during the back-pay period (105 of 140 pay periods) (Comparator 1) worked 66.25 hours of overtime in the 105 pay periods. This leaves 35 pay periods for Comparison 1 with no data, or 25% of 140 pay periods. At the rate 2 In November 1997, Petitioner was age 50. 2019005540 4 Comparator 1 worked overtime, s/he fairly would be expected to work a total of 82.81 hours of overtime during the entire back pay period (66.25 + an additional 25% or 16.56 = 82.81). See Agency’s response to Petitioner’s petition for enforcement dated 7/1/19 (Agency Response), at Ex. 9. The Agency used the number of overtime hours Petitioner worked as a Railroad Safety Inspector during the entire back pay period - 87.2 hours, more than Comparator 1. The Agency gave Petitioner the difference between the overtime he earned as a GS-12 and what he was entitled to with grades and steps. See Agency Response, Ex. 1, at Bates No. 24 at ¶ 5, Bates No. 25 at Note 2. Regarding overtime, the Agency is in compliance with our order. Monetary awards are based on an employee’s performance rating or Special Achievement performance. Performance appraisal ratings of less than “exceeds expectations” do not receive ratings based awards. See Agency Response, Ex. 9, at 2 - 3, Bates Nos. 261 - 262. During the back-pay period, Petitioner had one appraisal with an “exceeds expectations” rating for which he got a monetary award - his only award during the back-pay period. His three remaining appraisal ratings during the back pay period were less than “exceeds expectations”, including one that was “unacceptable”. We agree with the Agency that the best measure of Petitioner’s performance is how he performed during the back-pay period, and that because awards are based on performance, he was not entitled to any additional monetary awards. We disagree with Petitioner that compliance with our order requires the Agency to recalculate his social security and Federal Employees Retirement System (FERS) annuities. The Agency correctly argues that it fulfilled its obligation by giving proper notices to the Social Security Administration and the Office of Personnel Management (OPM) on adjustments in Petitioner’s pay. The record shows the Agency made these notices. See Agency Response, at Ex. 1, ¶¶ 12, 13, Bates Nos. 27 - 28. Moreover, Petitioner seeks recalculation of his annuities, in part, for events that occurred prior to the non-promotion at issue. We disagree with Petitioner that the Agency should have added contributions to his TSP based on the maximum allowed during the back-pay period. As argued by the Agency, the best measure is the percent and dollar contributions Petitioner opted for during the back-pay period. We find the Agency provided Petitioner adequate documentation of its calculation of back pay and benefits. Regarding tax consequences gross-up, we agree with the Agency that this calculation is premature until a final determination is made on back-pay on this petition for enforcement since taxes due are dependent on the final amount and years back pay is received. We decline to award Petitioner $2,755 for calculations made in May 2019 by a CPA on what is due him in back pay, benefits, interest, and tax consequences gross up pursuant to 29 C.F.R. § 1614.501(e)(2)(C) for two reasons. First, Petitioner is not a prevailing party on this petition for enforcement. Second, the expert report was not a catalyst for additional back pay, benefits, or interest to Petitioner. Specifically, in February 2019, the Agency determined that Petitioner was entitled to $136,777.57 in back pay, interest, and benefits, with a net payment to him of $83,720.13. This did not change, albeit the CPA calculated in May 2019, that Petitioner was entitled to $780,534. 2019005540 5 The petition for enforcement is DENIED. COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (S0610) 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. 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. 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 September 11, 2020 Date Copy with citationCopy as parenthetical citation