0420170014
09-14-2017
Porter H.,1 Petitioner, v. John F. Kelly, Secretary, Department of Homeland Security (Transportation Security Administration), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Porter H.,1
Petitioner,
v.
John F. Kelly,
Secretary,
Department of Homeland Security
(Transportation Security Administration),
Agency.
Petition No. 0420170014
Request No. 0520160240
Appeal No. 0720140018
Hearing No. 550-2011-00038X
Agency No. HS-TSA-09743-2009
DECISION ON A PETITION FOR ENFORCEMENT
On March 31, 2017, 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. 0520160240 (July 19, 2016). The Commission accepts this petition pursuant to 29 C.F.R. � 1614.503. Petitioner alleged that the Agency failed to comply with the Commission's order on back pay and on the increased tax burden resulting from the back pay award.
BACKGROUND
At the time of events giving rise to this complaint, Petitioner was employed by the Agency as a Lead Transportation Security Officer at the McCarran International Airport in Clark County (Las Vegas), Nevada.
Petitioner filed a complaint alleging that the Agency discriminated against him based on disability in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq. Petitioner appealed the Agency's final decision to the Commission, and in Request No. 0520160240, the Commission upheld the Equal Employment Opportunity Commission Administrative Judge's finding that Petitioner was discriminated against when he was terminated, and ordered, in relevant part, that the Agency offer him reinstatement with back pay; and pay him for any increased tax burden because of the back pay award.
Specifically, in relevant part, the Order in EEOC Request No. 0520160240 specified that: ....
2. The Agency shall determine and pay Complainant the appropriate amount of back pay, with interest, and other benefits due to him, pursuant to 29 C.F.R. � 1614.501. 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. Complainant's earnings from other employment during the relevant time period will be subtracted from the gross back pay, as will his workers' compensation lost wage earnings payment....
If there is a dispute regarding the exact amount of back pay and/or benefits, the Agency shall issue a check to Complainant for the undisputed amount within sixty (60) calendar days of the date this decision becomes final....
3. The Agency shall pay Complainant for any increased tax burden incurred because of the back pay award within sixty (60) calendar days of receipt of Complainant's documentation proving the increased burden. To obtain payment for the increased income tax burden, Complainant shall provide to the Agency detailed documentation establishing the increased income tax burden no later than sixty (60) calendar days after receipt of the Agency's documentation on back pay and interest.
The matter was assigned to a Compliance Officer and docketed as Compliance No. 0620160729 on July 21, 2016.
In his brief by and through counsel dated February 19, 2017, which we construe as Petitioner's petition for enforcement,2 he contended that because the Agency's back pay calculations were unclear, he was unable to discern if it included any bonuses he would have received had he continued to be employed, such as PASS. He writes that the order in EEOC Request No. 0520160240 became final on July 19, 2016, but his back pay check was dated October 19, 2016, thirty (30) days beyond the 60-day time limit set forth in the order (to pay any undisputed back pay). Petitioner lastly argues that due to the lump sum back pay award he had an additional $18,076 tax burden in 2016, and the Agency should pay him for this. In support thereof, he submits a statement by a tax preparer with calculations representing that this was the additional tax burden for receiving seven years of back pay all at once in 2016.
In its opposition brief dated March 23, 2017, the Agency argues that it believes its back pay calculations were clear, and Petitioner did not contact the Agency with questions about them prior to filing his February 19, 2017 petition. The Agency writes that had Petitioner asked, it would have clarified things. It further avers that Petitioner initially submitted evidence that he incurred an increased tax burden with his February 19, 2017 petition, which it was now reviewing and would shortly decide upon. In her declaration, Agency Counsel writes that Petitioner first served the Agency with notice and supporting documentation of his additional tax burden with his petition. The Agency argues that Petitioner did not submit his private earnings and OWCP benefits offsets until August 31, 2016, it timely paid back pay within 60 days thereof, and submits email correspondence in support of when it received this offset documentation. In addition, the Agency submits a declaration by an Agency Senior Human Resources Consultant wherein he provides additional information on how the Agency made the back pay calculations. This includes the following:
...There was not any supporting justification for performance ratings above the presumed rating of Achieved Expectations; however, in-position-increases (IPIs) of the maximum allowable 3% were awarded in 2010, 2011, 2012, 2013, 2014, and 2015. IPIs acknowledge special circumstances, may only be awarded to employees performing at a minimum level of "Achieved Expectations," and are at the sole discretion of the appropriately designated management official. In addition, he received all CEIs [Comparability Equivalent Increase]....
In his reply dated April 21, 2017, Petitioner argues that PASS and all other available bonuses that he would have been eligible to receive had he continued working for the Agency be included in his back pay, and that the Agency give clear calculations showing the inclusion of them. He argues that on top of the referenced increased tax burden of $18,076, he sustained an additional tax burden of $7,486 for 2016, for which he should be reimbursed by the Agency. In support thereof Petitioner submits a letter by a tax preparer which simply indicates his federal and state tax returns were completed, and his federal income tax balance due is $7,486. The tax preparer did not write this was because of an increased tax burden caused by the back pay award, nor does Petitioner submit any calculations supporting this.
Thereafter, the Agency submitted a June 2017 email indicating that it was processing a lump sum payment to Petitioner of $18,076.
The parties have not submitted further documentation regarding the above matters.
ANALYSIS AND FINDINGS
Since the Agency received documentation from Petitioner of his outside earnings in late August 2016, we find the Agency's issuance of a back pay check to Petitioner in October 2016 was timely. The Agency did not have the information required to calculate back pay until it got this documentation. Also, assuming without finding that the Agency issued the check 30 days late, this would have substantially complied with the applicable time clause in the order.
The record suggests that the Agency does not dispute Petitioner is entitled to $18,076 for his increased tax burden, but this is not confirmed with documentation of actual payment. If this matter is not already resolved, Petitioner must work with the Agency to do so. The record does not show that Petitioner's claim that on top of the above amount, he incurred additional tax burden of $7,846 has been addressed by the Agency. As far as we can discern, Petitioner first raised this in his April 21, 2017 reply to the Agency's opposition, and has not submitted supporting documentation. If this matter is not already resolved, Petitioner must work with the Agency to do so.
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. The Commission has held that uncertainties involved in a back pay determination should be resolved against the agency that has already been found to have committed acts of discrimination. Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at 11-13 (revised Aug. 5, 2015).
Here, Petitioner argues that had he continued working, he would have earned PASS bonuses and may have earned other bonuses he is not aware of. He argues such bonuses should be included in his back pay and the Agency should give him clear calculations showing they have been included. He submits a news article; and a blog representing to be an oral statement by the Deputy Administrator of the Transportation Security Administration before the United States Senate to support his argument regarding PASS bonuses. In the news article, it was reported that 99.08% of TSA workers in the Performance Accountability and Standards System were expected to receive a bonus for their work in 2009. Petitioner argues that he had an exemplary record.
It is undisputed that back pay includes bonuses an employee would have earned absent discrimination. EEOC Regulation 29 C.F.R. � 1614.501(c)(1); 5 C.F.R. � 550.805(a)(2). The record suggests that the parties are at an impasse on whether Petitioner would have earned bonuses via PASS and perhaps other forms had he continued working. Further, the record does not reflect whether the parties have resolved the amount of Petitioner's increased tax burden. Accordingly, the Agency shall comply with the Order below.
ORDER
The Agency is ordered to do the following:
1. To the extent the matters of back pay for bonuses via PASS and other types and Petitioner's increased tax burden resulting from receiving wages in a lump sum have been resolved to the satisfaction of Petitioner, submit evidence thereof in its report of compliance, as directed below;
2. To the extent the above matters have not been resolved, work with Petitioner to do so, gather relevant information, including giving Petitioner an opportunity in writing to submit evidence and argument to the Agency, and if the parties are still unable to reach a resolution to Petitioner's satisfaction issue a FAD appealable to this office making determinations on the unresolved matters.
The Agency shall complete the above actions no later than sixty (60) calendar days after the date this decision is issued, and pay Petitioner any undisputed additional back pay and undisputed referenced increased tax burden within the same period.
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.
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 (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. 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 14, 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 Petitioner previously filed an "appeal" regarding the Agency's compliance with the order on back pay. Compliance is being addressed herein.
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