EEOC Petition No. 0420170026
12-08-2017
Isabelle G. v. Dep't of Justice
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Isabelle G,1
Petitioner,
v.
Jeff B. Sessions,
Attorney General,
Department of Justice
(Federal Bureau of Prisons),
Agency.
Petition No. 0420170026
Appeal No. 0120130362
Agency No. P20100854
DECISION ON A PETITION FOR ENFORCEMENT
On July 10, 2017, the Equal Employment Opportunity Commission (EEOC or Commission) docketed a petition for enforcement (PFE) to examine the enforcement of an Order set forth in EEOC Appeal No. 0120130362 (December 3, 2015). The Commission accepts this PFE pursuant to 29 C.F.R. � 1614.503. Petitioner alleged that the Agency failed to fully comply with the Commission's order to award appropriate back pay, and that the Agency did not compensate her for the additional tax liability she incurred as a result of receiving a lump sum back pay award. For the following reasons, the PFE is GRANTED, and the PFE is REMANDED for compliance with this decision and the order below.
BACKGROUND
At the time of events giving rise to her EEO complaint, Petitioner worked as a Correctional Officer at the Agency's Federal Correctional Complex in Lompoc, California. Petitioner filed a complaint in which she alleged that the Agency discriminated against her on the basis of sex (female) in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq. Petitioner appealed the Agency's final decision (FAD) to the Commission, and in EEOC Appeal No. 0120130362, the Commission found that Petitioner proved by a preponderance of the evidence that she was subjected to disparate treatment discrimination based on sex when she was terminated from employment during her probationary period.
The Order for relief specified that the Agency had to award Petitioner the appropriate amount of back pay, interest, and other benefits which resulted from a loss of her salary due to the discriminatory termination. The matter was assigned to a Compliance Officer and docketed as Compliance No. 0620160187 on December 15, 2015.
On July 10, 2017, Petitioner submitted the PFE at issue in this decision. Petitioner contends that the Agency did not award her an appropriate amount of back pay. That is, Petitioner contends that the Agency improperly deducted $40,050 in unemployment compensation from her back pay award. Further, on October 31, 2017, Petitioner submitted additional documentation for her PFE, contending that the Agency did not compensate her for additional tax liability she incurred as a result of receiving a lump sum back pay award. Petitioner contends that she sustained $142,625.00 in additional tax liability.
Following receipt of the PFE, the Agency contends that the PFE should be dismissed pursuant to 29 C.F.R. � 1614.504 because Petitioner did not contact the Agency's EEO Director in writing informing them of the noncompliance. Further, the Agency asks that if the PFE is accepted for review, that the Commission reverse prior precedent establishing that unemployment compensation is not deductible from back pay. Petitioner replied that � 1614.504 only applies to alleged breaches of settlement agreements and not to allegations of agency noncompliance with Commission orders for relief.
ANALYSIS AND FINDINGS
The Agency deducted $40,050 that Petitioner received in unemployment compensation and did not compensate her for alleged additional tax liability she incurred as a result of receiving a lump sum back pay award.
I. Unemployment Compensation Deducted From Back Pay Award
The Agency awarded Petitioner net back pay of $333,131.16, from which it deducted $40,050.00 for unemployment compensation. PFE, Ex. 2.
Unemployment compensation must not be deducted from back pay. Scott v. United Postal Service, EEOC Appeal No. 01921641 (June 11, 1993); Wallis v. United States Postal Service, EEOC Appeal No. 01950510 (November 13, 1995).
Petitioner submitted documentation showing that the Agency deducted $40,050.00 from her back pay award because she received this amount for unemployment compensation. PFE, Ex. 2. The Agency does that deny this, therefore, given that unemployment compensation cannot be deducted from back pay, the Agency must award Petitioner an additional $40,050.00 which it improperly deducted from her back pay award.2
II. Compensation for Additional Tax Liability Incurred Because Of Lump Sum Back Pay Award
Petitioner contends that she is entitled to $142,625.00 because of additional tax liability she incurred as a result of receiving a lump sum back pay award.
An award to cover additional tax liability from a lump-sum payment of back pay is available to petitioners. Goetze v. Dep't of the Navy, EEOC Appeal No. 01991530 (Aug. 22, 2001); Holler v. Dep't of the Navy, EEOC Appeal Nos. 01982627 and 01990407 (Aug. 22, 2001); Van Hoose v. Dep't of the Navy, EEOC Appeal Nos. 01982628 and 01990455 (Aug. 22, 2001). This award is available even if a decision does not explicitly order it. See Emerson S. v. United States Postal Serv., EEOC Petition No. 0420130026 (Nov. 20, 2015) (noting that decisions on petitions for enforcement have permitted claims for additional tax liability in cases where the Commission has not mentioned it in the original order).
"In the case of a lump sum back pay award, individuals are compensated for the extra tax they are required to pay as a result of receiving a lump sum award..." Cecile C. v. U.S. Postal Serv., EEOC Petition No. 0420120013, at *2 (Nov. 4, 2015). "A complainant bears the burden to prove the amount to which she claimed entitlement, and courts have demanded probative calculations by complainants." Id.
Petitioner alleges that she is owed an additional $142,625.00 based on calculations by an accountant for additional tax liability she incurred as a result of receiving the lump sum back pay payment. Petitioner should submit documents to the Agency justifying the amount of the additional tax liability, and the Agency should award Petitioner the appropriate amount based on calculations of the extra tax liability Petitioner incurred.
Therefore, the Agency was not in compliance with the Commission's previous order to pay Petitioner an appropriate amount in back pay. Additionally, Petitioner is entitled to an additional amount based on any increased tax liability due to lump sum payment of back pay.
CONCLUSION
The PFE is GRANTED, and is REMANDED to the Agency for compliance with this decision and the Order below.
ORDER
Within one hundred and twenty (120) calendar days from the date this decision is issued, the Agency is ordered to:
1. Pay Petitioner an additional $40,050.00 as part of her back pay award;
2. Calculate and pay to Petitioner the appropriate amount to compensate her for any additional tax liability she incurred as a result of receiving a lump sum back pay award.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0617)
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 in the digital format required by the Commission, and submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. � 1614.403(g). 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.
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).
ATTORNEY'S FEES (H1016)
If Complainant has been represented by an attorney (as defined by 29 C.F.R. � 1614.501(e)(1)(iii)), 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 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.
FOR THE COMMISSION:
______________________________ Carlton M. Hadden's signature
Carlton M. Hadden, Director
Office of Federal Operations
12-08-2017
__________________
Date
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 regulation the Agency cites to contending that Petitioner had to inform an EEO Counselor of non-compliance only applies to alleged breaches of settlement agreements. See 29 C.F.R. � 1614.504.
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