Gary Yovan, Complainant,v.Janet Napolitano, Secretary, Department of Homeland Security, Agency.

Equal Employment Opportunity CommissionOct 20, 2010
0120083601 (E.E.O.C. Oct. 20, 2010)

0120083601

10-20-2010

Gary Yovan, Complainant, v. Janet Napolitano, Secretary, Department of Homeland Security, Agency.


Gary Yovan,

Complainant,

v.

Janet Napolitano,

Secretary,

Department of Homeland Security,

Agency.

Appeal No. 0120083601

Hearing No. 480-2006-00003X

Agency No. HS-94-CBP-000062

DECISION

Complainant filed an appeal with the Commission on August 7, 2008, seeking a determination whether the Agency has fully complied with its final order. For the following reasons, the Commission MODIFIES the Agency's final decision.

BACKGROUND

The record reveals that Complainant filed a complaint alleging that the Agency discriminated against him when: (1) in January 1995, Complainant was not selected for a position as Supervisory Customs Entry Officer (SCEO), GS-11/12, under Vacancy Announcement PAC/95-009 MC, in San Diego, California based on sex; and (2) on September 26, 1995, Complainant was not selected for a position as SCEO, GS-11/12, under Vacancy Announcement PAC/95-052 JM, in Los Angeles, California based on sex, age, and in reprisal for prior protected activity.

At the conclusion of the investigation, Complainant requested a hearing before an EEOC Administrative Judge (AJ). The AJ held a hearing on May 1 and 2, 2007. On August 28, 2007, the AJ issued a decision concluding that Complainant failed to prove that he was discriminated against with regard to the Los Angeles non-selection, and finding that Complainant was discriminated against with regard to the San Diego non-selection.1 Moreover, with regard to the San Diego non-selection, the AJ found the Agency failed to retain pertinent documents regarding a charge of discrimination and committed a per se violation of 29 C.F.R. � 1602.14. By final order dated October 19, 2007, the Agency fully implemented the AJ's decision.

The Agency implemented the AJ's order which required the Agency to:

1. Compensate Complainant for all additional pay and applicable benefits he was denied, including additional GS-12 pay and appropriate step increases, and increased Agency TSP contributions due to Complainant's higher grade and step levels, from approximately January 5, 1995, the time of the Selectee's promotion, until November 3, 2000, when Complainant was on non-pay status and thereafter received disability retirement.

2. Pay prejudgment interest on lost back-pay and benefits, at the annual percentage rate or rates established by the U.S. Secretary of the Treasury. Interest shall be paid from the dates Complainant was eligible or entitled to such additional compensation to the date that the monetary amount is paid by the Agency.

3. Inform the Office of Personnel Management (OPM) and the Social Security Administration (SSA) of Complainant's new pay grades and steps in order for OPM and SSA to determine if Complainant is entitled to additional benefits.

4. Provide Complainant with a detailed statement of the Agency's calculations regarding Complainant's additional back-pay, other applicable employment benefits, and interest.

5. Provide Complainant copies of all letters, electronic mail messages, and other correspondence sent to OPM and SSA regarding Complainant's January 1995 to November 2000 updated compensation levels.

6. Pay Complainant $108 in pecuniary damages.

7. Pay Complainant $10,000 in non-pecuniary damages.

8. Pay Complainant $16,070.56 in attorney's fees and $302.49 in costs.

9. Post a notice at the San Diego District Office for a period of six months, which specifies that the facility failed to comply with the recordkeeping requirements specifically by failing to preserve applications and other documents submitted by candidates, as well as documents reviewed by the Agency's selecting official. As a result, the EEOC found that the Agency discriminated against an individual due to gender discrimination and violated a federal recordkeeping regulation.

10. Train facility personnel.

11. Submit a compliance report to Complainant within 30 days of the date this decision becomes final and every 30 days thereafter until full compliance is achieved.

The record contains the Agency's November 27, 2007 initial compliance report noting that it has forwarded the Agency's final order and instructions regarding implementation to the various Agency offices and is making every effort to attempt to comply with the final order by the 60-day deadline. However, the Agency stated it will likely take longer than the deadline to implement all of the payment terms, notification to other agencies and Complainant, and training requirements.

In a December 12, 2007 letter to the Agency, Complainant acknowledged receipt of a check for $43,654.47 for "salary" and he stated he did not know how this amount was calculated. Complainant claimed he had not yet received payment of $10,000 for non-pecuniary damages; $108.00 for pecuniary damages, $16,070.56 in attorney's fees, and $302.49 in costs. Complainant also stated he has not received computation or payment on increased TSP contributions or prejudgment interest on back-pay. Complainant stated the Agency has not yet sent information on whether it has communicated with OPM and SSA regarding his new pay information. Finally, Complainant stated he has not yet received information on the training and posting ordered.

The Agency responded on December 17, 2007, explaining that the $43,654.47 for back pay consisted of $29,055.36 in base pay, $27,020.51 in interest (for a total of $56,075.87) minus withholdings of $2,905.53 for TSP, $6,537.45 for federal taxes, $522.99 for state taxes, $1,801.44 for OASDI, $421.30 for HITS, and $232.45 for retirement. The Agency stated that from $56,075.87 it withheld $12,421.16 for a total payment of $43,654.47.2 The Agency stated a request was processed for payment of damages in the amounts of $10,000 and $108. The Agency stated the request for attorney's fees and expenses of $16,070.56 and $302.49 respectively was forwarded to its Accounts Receivables office and should be paid upon the receipt of funds. The Agency explained that the corrected personnel actions have been input by the Office of Human Resources Management (OHRM). The Agency noted that all of the personnel actions, and payroll changes were forwarded to its National Finance Center (NFC) office in New Orleans. The Agency stated OHRM communicates with SSA and with OPM regarding changes to Complainant's social security payments and retirement annuity. Finally, the Agency stated training is being planned for San Diego.

In a December 20, 2007 letter, Complainant acknowledged receipt of attorney's fees ($16,070.56) and costs ($302.49), totaling $16,373.05, on December 18, 2007. Complainant also stated he received the Agency's payment of $43,654.47 for back pay, and then on December 18, 2007, received from the Agency a breakdown of this amount. However, Complainant stated he has not received any documentation or explanation of how the $43,654.47 figure was computed and thus, he does not know if the pay rates, interest rates, or dates used are correct. Complainant stated he has not received the Agency's payments of non-pecuniary, compensatory damages ($10,000) and pecuniary, compensatory damages ($108). He also stated he did not receive any documentation or explanation of the amounts deposited into his FERS account and/or his TSP account.

In a February 14, 2008 letter, the Agency stated that it would provide all supporting documentation demonstrating compliance as part of its final compliance report, which it noted is due no later than 30 days after the notice of posting expires on June 26, 2008. The Agency reported that the NFC paid $10,000 for non-pecuniary damages and $108 for pecuniary damages. The Agency stated that the Notice for EEO Compliance was posted in the bulletin board of the main corridor near the primary entrance to the San Diego Field Office on December 22, 2007, and will remain posted for six continuous months, until June 26, 2008. The Agency also stated that training was scheduled for all employees assigned to the San Diego Field Office.

On February 19, 2008, Complainant informed the Agency that he thinks the back pay calculated may be too low and he requested documentation showing how the calculations were determined. Complainant specifically requested: (1) all documentation showing how the $43,654.47 back pay was calculated; (2) all documentation reflecting the amounts deposited into Complainant's FERS and/or his TSP accounts; (3) all documentation reflecting the corrected personnel actions input by the Agency's Office of Human Resources Management; and (4) all documentation reflecting the communications the Agency has had with OPM and/or SSA regarding Complainant's corrected pay records.

In a February 26, 2008 letter, the Agency stated payment for pecuniary and non-pecuniary damages and attorney's fees and costs was made on December 13, 2007. The Agency stated that back pay and interest was paid on December 3, 2007. With regard to Complainant's request for documentation showing the Agency's communications with SSA and OPM, the Agency provided a December 13, 2007 electronic mail message from OHRM to the Senior Deputy Associate Chief Counsel stating that "the Social Security piece is done by USDA" and noting that payroll sent all calculations to them and they make the required contact with SSA and OPM. Moreover, the Agency provided a breakdown of Complainant's back pay showing that the base pay amount due was $29,055.36, interest due was $27,020.51, for a total of $56,075.87. The Agency noted that it withheld $2,905.53 for TSP, $6,537.45 for federal taxes, $522.99 for state taxes, $1,801.44 for HITS (Medicare), $232.45 for retirement for a total withholding of $12,421.16. The Agency determined the net pay due Complainant was $56.075.87 minus $12,421.16 for a total of $43,654.71. The Agency stated its final compliance report would be submitted to Complainant at the end of the compliance period, when the posting of the Notice expires on June 26, 2008.

In a March 18, 2008 letter, Complainant stated that due to the inadequate responses from the Agency, he is giving his notice of intent to institute enforcement proceedings against the Agency. Complainant stated that if the Agency has not fully complied with its final order within 30 days of this letter, he would file an appeal with the EEOC.

Accompanying a letter dated April 1, 2008, the Agency supplied three spreadsheets in response to Complainant's prior information requests. The first spreadsheet is a summary of the total amount of back pay, interest, and withholdings. The Agency explained that the figures in this spreadsheet were sent to the U.S. Department of Agriculture so that it could forward the necessary retirement information to OPM. The second spreadsheet shows the same information as in the first spreadsheet; however, the information is broken down by year for the years 1995 - 2002. The third spreadsheet contains a detailed listing of back pay, interest, and withholdings set out by pay period. Additionally, the Agency noted that the interest rates are determined by the Internal Revenue Service (IRS) and are based on a compounded amount. Moreover, the Agency stated that the calculations regarding the effect of back pay on retirement and social security will have to come from OPM and SSA. The Agency stated that it would continue to gather the information Complainant requested and would submit the information to Complainant as expeditiously as possible.

After receiving the Agency's April 1, 2008 letter, Complainant responded in a letter dated April 1, 2008. Complainant asked the Agency: (1) to what date were the amounts listed as interest paid; (2) whether interest was compounded; (3) what interest rates were used to compute interest; (4) why did Complainant's pay differential decrease in PP 95-13 through PP 95-26, PP 97-13 through PP 97-26, PP 99-13 through 99-14, and PP 00-13 through PP 00-22; and (5) whether the Agency paid its 5% TSP contribution over and above Complainant's 10% contribution deducted from his back pay.

In a letter dated April 16, 2008, the Agency sent Complainant multiple corrected Standard Form 50s reflecting Complainant's retroactive promotion to a GS-12 effective the first pay period in 1995, each subsequent within grade promotion, and all cost of living adjustments. The Agency stated it is continuing to gather the remaining information Complainant requested.

On June 25, 2008, Complainant sent the Agency a letter regarding alleged non-compliance with the Agency's final order. Complainant stated that he was not paid interest on back pay from November 3, 2000, through December 27, 2007, the date the back pay and interest were paid. Complainant also claimed he was not paid interest on the retroactive OPM benefits he received on February 15, 2008, in the amount of $12,830.96. Complainant also claimed he was due interest on retroactive SSA benefits. Complainant also claimed that the Agency failed to communicate with SSA as required in the final order.

Complainant stated he received a report from TSP showing that the Agency paid the 5% late contributions required in addition to withholding 10% shown on Agency spreadsheets previously provided to him. However, Complainant claimed the Agency owes him interest on the additional TSP contributions from the date it should have been paid until the interest is paid.

Complainant also renewed his inquiry on why there is a decrease in the pay differential for PP 95-13 through PP 95-26, PP 97-13 through PP 97-26, PP 99-13 through 99-14, and PP 00-13 through PP 00-22.

Finally, Complainant inquired as to the interest rate used on interest payments already made. Complainant also wanted to know whether interest has been compounded. Complainant stated that if the Agency did not provide the requested information within 30 days, he would file an appeal to the EEOC.

Thereafter, Complainant filed the present appeal dated August 7, 2008, noting that more than 35 days had elapsed since his June 25, 2008 letter, formally demanding the Agency comply with its final order. In his September 3, 2008 brief in support of his appeal, Complainant claimed the Agency failed: (1) to pay interest on back pay from November 3, 2000, through December 27, 2007; (2) to pay interest on retroactive OPM benefits received by Complainant on February 15, 2008; (3) to communicate to SSA the amounts of additional pay Complainant received; (4) to pay interest on retroactive SSA benefits received; (5) to provide documentation on how back pay was computed; (6) to provide documentation on how interest paid to date was computed, including whether or not it was compounded; and (7) to pay interest on retroactive TSP contributions.

In an October 3, 2008 response to Complainant's appeal, the Agency argued that Complainant's appeal was untimely filed. The Agency stated that Complainant knew of the Agency's non-compliance since February 19, 2008, when he claimed the Agency was not providing him with certain information as required in its final order concerning back pay and interest. The Agency stated it responded with two separate letters on April 1, 2008, and April 16, 2008, that provided Complainant with information on calculations, SF 50s, and how interest was determined. The Agency noted that if a complainant is unsatisfied with the agency's response, he may file an appeal within 30 days of receiving the agency's response pursuant to 29 C.F.R. � 1614.504(b). The Agency argued that assuming that Complainant received the Agency's second letter within five days, or April 21, 2008, complainant should have filed his appeal to enforce the Agency's final order no later than May 21, 2008. The Agency argues that since Complainant did not file his appeal until August 7, 2008, over two months past the deadline set forth in the regulations, his appeal should be dismissed as untimely.

The Agency also stated that it complied with the terms set forth in its final order. With regard to Complainant's claim that he was not paid all interest due for the period of November 3, 2000 through December 27, 2007, the Agency stated it paid all required back pay and interest owed to Complainant through November 5, 2007, and cited the October 2, 2008 declaration of Person A, Senior Staff Accountant at the National Finance Center in Indianapolis, Indiana in support of this assertion. The Agency noted that the interest amounts paid to Complainant were computed beginning from pay period 1 in 1995 through November 5, 2007. The Agency stated that the interest was compounded and the interest rate used was the relevant Internal Revenue Service interest rate effective each pay period. The Agency noted that the interest rate fluctuated between 3% and 6%. The Agency stated it issued the back pay award payment to Complainant on December 3, 2007. The Agency stated it properly ceased its interest payments on November 3, 2007, within 30 days of payment of the back pay award under 5 C.F.R. � 550.806(a).

With regard to Complainant's claim that he did not receive interest on retroactive OPM benefits received from OPM on February 15, 2008, the Agency argued that the AJ did not order the Agency to pay such interest. Furthermore, the Agency noted Complainant has not provided any legal support for making this claim, nor has the Agency found any authority suggesting it has the responsibility to pay interest on retroactive OPM benefits.

With regard to Complainant's claim that the Agency has not communicated with SSA as required in the final order, the Agency noted it was ordered to inform OPM and SSA about Complainant's new pay grades and step increases so that these entities could determine whether Complainant was entitled to additional benefits. The Agency stated it submitted the relevant information to OPM on November 27, 2007, via the SF 2806. The Agency stated its correspondence with SSA can be determined by examining the W-2 that it provided to Complainant. The Agency provides a copy of the W-2 and states the W-2 shows Complainant's total amount of wages subject to Social Security taxes and his total amount of wages withheld for Social Security taxes. The Agency states that this information could only have been generated by its submission of information to the SSA.

With regard to Complainant's claim that the Agency must pay him interest on retroactive additional SSA benefits once the latter are computed and paid by SSA, the Agency argues that the AJ did not order the Agency to pay such interest. Furthermore, the Agency states that Complainant has not provided any legal support for making this claim, nor has the Agency found any authority suggesting it has the responsibility to pay interest on retroactive SSA benefits.

With regard to Complainant's claim that the Agency failed to provide documentation of how back pay was computed, the Agency states that it provided this information to Complainant in a letter dated April 1, 2008. The Agency noted that the April 1, 2008 letter contained eight pages of calculations, which included a summary of the total amount of back pay, interest, and withholdings; the same information broken out by year for the years 1995 through 2002; and a detailed compilation of back pay, interest, and withholdings set out by pay period for the years 1995 through 2002. The Agency noted that this letter also addressed the answers to Complainant's questions regarding OPM, SSA, and compounded interest. The Agency explained that it sent a second letter to Complainant dated April 16, 2008, which provided documentation on Complainant's receipt of his retroactive promotion and cost of living adjustments from 1995-2000.

The Agency stated it paid Complainant $108 in pecuniary damages on December 13, 2007; however taxes in the amount of $35.27 were erroneously withheld from this amount. The Agency explained that a refund in the amount of $35.27 was issued to Complainant on August 8, 2008.

The Agency noted that Complainant's 2007 W-2 shows his total taxable wages for federal income tax purposes, his total amount of wages withheld for federal taxes, his total amount of wages subject to Social Security taxes, his total amount of wages withheld for Social Security taxes, his total amount of wages subject to Medicare taxes, and his total amount of wages withheld for Medicare taxes. The Agency stated that some of the monetary amounts listed on Complainant's W-2 do not match the monetary amounts listed on the Agency's calculations of back pay due to the erroneous taxation of the $108 of pecuniary damages. The Agency stated that a corrected W-2 listing the proper monetary amounts is being prepared and will be sent to Complainant as soon as it is prepared.

With regard to Complainant's claim that the Agency failed to provide documentation of how the interest paid to date was computed, the Agency states that its April 1, 2008 submission provides documentation regarding the amount of interest paid by the Agency to date. Specifically, the Agency noted that it informed Complainant on April 1, 2008, that the interest rates were determined by the IRS, and are based on a compounded amount. The Agency cites the October 2, 2008 declaration of Person A who noted that the interest rate fluctuated between 3% and 6%.

The Agency also addressed Complainant's claim that it failed to pay interest on retroactive Agency TSP contributions. The Agency states it was not directed to provide interest on its TSP contributions. The Agency argues the case law is clear that a complainant is not entitled to interest on an agency's TSP contributions.

On October 10, 2008, Complainant submitted a reply to the Agency's response to Complainant's appeal. Complainant argues that his appeal was timely filed. Moreover, Complainant claims that the Agency has still failed to: (1) pay interest on retroactive OPM benefits received from OPM on February 15, 2008; (2) pay interest on retroactive additional SSA benefits once the latter are computed and paid by SSA; and (3) provide documentation of how amounts of back pay the Agency has paid were computed, to include providing answers to specific questions asked in correspondence previously provided to the Office.

With regard to the Agency's claim that it was not required to pay interest on retroactive OPM benefits and retroactive SSA benefits, Complainant states that AJ ordered that he is entitled to make-whole relief and stated that prejudgment interest shall also be paid on the lost back-pay and benefits. Complainant argues that interest on benefits included interest on retroactive OPM and SSA benefits.

In response to the Agency's claim that it provided all necessary documentation, Complainant claims there are anomalies in the back-pay documentation provided which appear to show an underpayment of back pay. Specifically, Complainant cites item 4 in his April 1, 2008 letter to the Agency. Complainant states that this anomaly remains unexplained.

Complainant submitted a supplemental response on October 14, 2008, claiming that the Agency has still failed to comply with the final order regarding interest on the back pay award. Specifically, Complainant claims that the interest rates of 3% to 6% used by the Agency in computing interest paid to Complainant on the back-pay award were incorrect. Complainant cites 5 C.F.R. � 550.806 which he states requires that the Agency pay interest at the Federal short-term rate plus 3%. Complainant states that during the relevant time the Federal short-term rate was not zero, which he argues it would have to have been for a total interest rate of 3% paid on any part of this award to be correct.

On October 15, 2008, the Agency submitted a motion to strike Complainant's reply to Agency's response to Complainant's appeal. The Agency argued that the regulations do not permit the filing of a reply or brief by Complainant after a brief in opposition is submitted by the Agency.

ANALYSIS AND FINDINGS

As an initial matter, we note that neither party disputes the AJ's finding of discrimination (or findings of no discrimination) and we note that Complainant has not appealed the remedy awarded by the AJ.

Timeliness of Appeal

Upon review, we reject the Agency's argument that Complainant's appeal is untimely filed. The record reveals that following the Agency's initial compliance report on November 27, 2007, the parties exchanged regular correspondence regarding the Agency's implementation of its final order. The record reveals that in a March 18, 2008 letter, Complainant warned that due to the inadequate responses he was receiving from the Agency, if the Agency did not fully comply with its final order within 30 days, he would file an appeal with EEOC. In response, the Agency stated in an April 1, 2008 letter and again in an April 16, 2008 letter that it was continuing to gather the information Complainant requested and would relay the information to him as soon as possible. In reliance on the Agency's assurances, Complainant waited for the promised information before filing a claim on non-compliance. Based on the correspondence between the Agency and the Agency's repeated promises that it was continuing to gather additional documentation, we find the present appeal was timely filed.

Back Pay

Pursuant to the final order, the Agency was required to compensate Complainant for all additional pay he was denied, including additional GS-12 pay and appropriate step increases, from January 5, 1995, through November 3, 2000. Complainant acknowledged receipt of $43,654.47 in back pay during the first week of December 2007. Complainant's December 12, 2007 letter. The record reveals that on December 18, 2007, Complainant received a breakdown of this payment indicating the amount of base pay, interest, and withholdings deducted from the back pay beginning in pay period 1 of 1995, through November 3, 2000. On April 1, 2008, the Agency supplied a spreadsheet showing the amount of money per pay period Complainant received as a GS-11/05 in contrast to the amount of money he should have been paid per period as a GS-12/2 and listed the amount each pay period that he was owed as a result of the finding of discrimination. The Agency added the amount each pay period and determined Complainant was owed $29,055.36 in lost salary minus $12,421.16 in withholdings. The Agency clearly indicated the amounts it was withholding for TSP, federal taxes, states taxes, OASDI, Medicare, and retirement per pay period during the relevant timeframe.

Upon review, we find the Agency provided appropriate documentation showing how it calculated back pay. Complainant has failed to show that the Agency's back pay calculations or the amount of money withheld from the total back pay was erroneous.

TSP Contributions

In the present case, Complainant acknowledges that the Agency made the required 5% contribution to his TSP account in compliance with its final order. Complainant's June 25, 2008 letter. Complainant also notes that the Agency subtracted the required 10% employee contribution from his back pay order. Id. However, Complainant claims the Agency failed to provide him "interest" on retroactive TSP contributions.

Upon review of the record as a whole, it appears Complainant is arguing that the Agency failed to pay him earnings which his TSP account would have accrued during the relevant period. With respect to TSP contributions, the Commission has held that "make whole" relief requires the Agency to make retroactive tax-deferred contributions to Complainant's TSP account during the back pay period. Howgate v. U.S.Postal Service, EEOC Petition No. 04990031 (February 4, 2000) (citing Fiene v. U.S. 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 his salary, he is entitled to have his retirement benefits adjusted as part of his back pay award, including receiving earnings which the account would have accrued during the relevant period. Id. (citing Robinson v. Dep't of the Treasury, EEOC Petition No. 04980006 (July 2, 1998); Lee v. Dep't of the Army, EEOC Petition No. 04980020 (October 1, 1998)). Thus, we find the Agency is required to pay Complainant earnings on his TSP account that would have accrued during the relevant period.

Based on the record, it is unclear whether the Agency has paid the earnings which Complainant's TSP account would have accrued but for the discriminatory non-selection. On remand the Agency is required to show that it calculated and paid these earnings, if appropriate. See Malek v. Dep't of Health and Human Services, EEOC Petition No. 04990009 (August 19, 1999). In its supplemental investigation, the Agency shall clearly document its calculations for all Agency TSP contributions and for all lost earnings on Complainant's TSP account. Moreover, the Agency shall clearly document all deductions made from Complainant's back pay award consisting of employee TSP contributions, specifically indicating how it calculated these amounts. Additionally, the Agency shall provide evidence showing whether it has reimbursed the lost earnings to Complainant's account.

Moreover, to the extent Complainant is requesting interest for the Agency's delay in providing him the requisite TSP contributions, the Commission has held that Complainant is not additionally entitled to interest on these amounts, inasmuch as the award of earnings which would have accrued on his account will make him whole for these losses. Munno v. Dep't of Agriculture, EEOC Petition No. 04A10042 (June 18, 2001). Thus, we find the Agency is not required to pay Complainant interest on the retroactive TSP contributions, apart from the earnings he would have received on the TSP contributions during the relevant timeframe.

Interest Rate

The spreadsheets supplied by the Agency in April 2008, show the amount of interest Complainant is due beginning in pay period 1 of 1995, through pay period 8 of 2002. The spreadsheet does not indicate the interest rate used or whether the interest was compounded. In an October 2, 2008 declaration, Person A states that the Agency paid Complainant interest from pay period 1 of 1995 through November 5, 2007. Person A states the interest was compounded and the interest rate used was the relevant IRS interest rate effective each pay period. Person A claims the interest rate fluctuated between 3% and 6%.

According to the Back Pay Act, an agency employee who has received an administrative determination that he has been affected by an unjustified personnel action may receive back pay. 5 U.S.C.A. � 5596 (b)(1). Further, 5 C.F.R. � 550.806(d) provides that the rate or rates used to compute the interest on a back pay award under 5 U.S.C.A. � 5596 shall be the annual percentage rate or rates established by the Secretary of the Treasury as the Overpayment Rate under Internal Revenue Service Regulation 26 U.S.C. � 6621(a), for the period or periods of time for which interest is payable. Moreover, 5 C.F.R. � 550.806(e) provides that the interest rate shall be compounded daily.

In the present case, the Commission finds it unclear from the record how the Agency calculated the interest on its back pay award. While the Agency provided three spreadsheets, it failed to show the computation of compounded interest in accordance with 5 C.F.R. �550.806. The Agency claimed that the interest rate fluctuated between 3% to 6% without specifying what interest rates it applied during the relevant pay periods. We note the Agency does not address Complainant's contention that the Agency was required to use the Federal short-term rate plus 3 percentage points. Moreover, the Agency stated that it paid interest amounts to Complainant beginning in pay period 1 in 1995 through November 5, 2007; however, the April 2008 spreadsheets show amounts due only from pay period 1 of 1995 through May 2002 and not through November 2007. Thus, the Agency's determination that it complied with the interest payment specified in its final order is remanded. On remand the Agency is ordered to show how its computation of interest meets all the requirements of 5 C.F.R. � 550.806.

Complainant also objects to the Agency ending the interest rate payment on November 5, 2007. Specifically, Complainant requests the interest rate payment end on December 27, 2007, the date he states that he received the back pay and interest payments. Complainant's June 25, 2008 letter.

OPM Regulation 5 C.F.R. 550.806(f) provides that the agency shall compute the amount of interest due and shall issue the interest payment within 30 days of the date on which accrual of interest ends. In the present case, the Agency stated it provided Complainant interest on back pay through November 5, 2007, and issued the interest check on December 3, 2007. Agency Brief, Attachment F. Notwithstanding the issues above, concerning whether the appropriate interest rate was used and whether the interest was appropriately compounded, assuming that the Agency appropriately calculated interest due through November 5, 2007, we find that the Agency's use of November 5, 2007, was an appropriate date to end the accrual of interest as it was within 30 days of the date the Agency issued its interest payment. Fiene v. U.S. Postal Service, EEOC Petition No. 04920009 (September 3, 1992) (finding agency complied with 5 C.F.R. 550.806(f) where agency provided petitioner interest on back pay through August 16, 1990, and then issued interest check on September 4, 1990).

Interest on Retroactive benefits

We find Complainant is not entitled to interest on retroactive OPM and SSA benefits. Specifically, we note the AJ's decision and the Agency's subsequent final order do not order interest on retroactive OPM and/or SSA benefits.

Moreover, we find that Complainant has failed to show non-compliance with the remaining provisions in the Agency's final order.

CONCLUSION

The Agency's final decision regarding corrective actions (2), (4), and the TSP portion of corrective action (1) is VACATED and the matter is REMANDED to the Agency for a supplemental investigation. The Agency's decision regarding corrective actions (3), (5) - (11), and the non-TSP portion of correction action (1), is AFFIRMED.

ORDER

Within 60 days of the date this decision becomes final, to the extent it has not already done so, the Agency shall:

1. Pay prejudgment interest on lost back-pay and benefits, at the annual percentage rate or rates established by the U.S. Secretary of the Treasury. Interest shall be paid from the dates Complainant was eligible or entitled to such additional compensation to the date that the monetary amount is paid by the Agency.

2. Provide Complainant with a detailed statement of the Agency's calculations and payments made on Complainant's TSP account. Specifically, the Agency shall clearly document its calculations for all Agency TSP contributions and for lost earnings on Complainant's TSP account. Moreover, the Agency shall clearly document all deductions made from Complainant's back pay award consisting of employee TSP contributions, specifically indicating how it calculated these amounts. The Agency shall provide evidence showing whether it has reimbursed the lost earnings to Complainant's account.

3. Issue a new decision as to whether it has complied with corrective actions (2), (4), and the TSP portion of corrective action (1) from the agency's final order dated October 19, 2007 (implementing the AJ's August 28, 2007 decision).

A copy of the Agency's decision must be sent to the Compliance Officer as referenced herein.

IMPLEMENTATION OF THE COMMISSION'S DECISION (K0610)

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 77960, Washington, DC 20013. 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 (M0610)

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), at 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 (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 (Z0610)

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

10/20/10

__________________

Date

1 Complainant also filed three other complaints, encompassed in the present matter, alleging that he was not selected for three other SCEO positions; however, on February 28, 2007, the AJ issued summary judgment in favor of the Agency on these non-selection claims.

2 The Agency states that Complainant was owed $43,654.47 in back pay and elsewhere states that Complainant was owed $43,654.71 which is a difference of $.24.

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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

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