Mac O.,1 Complainant,v.Sonny Perdue, Secretary, Department of Agriculture (Agricultural Research Service), Agency.

Equal Employment Opportunity Commission

Sep 26, 2019

0120181649 (E.E.O.C. Sep. 26, 2019)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Mac O.,1
Complainant,

v.

Sonny Perdue,
Secretary,
Department of Agriculture
(Agricultural Research Service),
Agency.

Appeal No. 0120181649

Agency No. ARS-2013-00301

DECISION

Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or
Commission) concerning his equal employment opportunity (EEO) complaint alleging
employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973
(Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Mechanical Engineer,
GS-0830-09, in the Agency’s Midwest Area Dairy Forage Research Center located in Madison,
Wisconsin.

On February 19, 2013, Complainant filed an EEO complaint alleging that the Agency
discriminated against him on the basis of disability (depression) when:

On November 29, 2012, he was terminated from his GS-030-09 Mechanical Engineer
position.

At the conclusion of the investigation, the Agency provided Complainant with a copy of the report
of investigation and notice of his right to request a hearing before an Equal Employment

1 This case has been randomly assigned a pseudonym which will replace Complainant’s name
when the decision is published to non-parties and the Commission’s website.
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Opportunity Commission Administrative Judge (AJ). In accordance with Complainant’s request,
on May 16, 2014, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The
decision concluded that Complainant proved that the Agency subjected him to discrimination as
alleged. The Agency was ordered to complete the following: consider taking disciplinary action
against the Agency officials found to have discriminated against Complainant; submit a report of
compliance; pay compensatory damages and back pay, if warranted; and post copies of the
“Posting Order.” The Agency decision noted Complainant had not notified the Agency whether
he was represented by counsel and ordered the Complainant’s representative to submit a verified
statement of attorney’s fees and costs.

Thereafter, Complainant submitted a Request for Attorney’s Fees and a Request for Damages.
The Agency’s Office of General Counsel (OGC) submitted their response. Complainant then
submitted a Reply to the Agency’s Response to Complainant’s Claim for Damages.

A Final Agency Decision on Request for Compensatory Damages (Damages Decision) was issued
on September 30, 2015. Among the issues in dispute, Complainant rejected the Agency’s
contention that his back pay should be reduced by $4,164.00 for outside earnings. Rather,
Complainant argued that he earned a total of $3,267.00 in outside earnings (not $4,164.00). Thus,
he asserted only $3,267.00 should be deducted for mitigation purposes. The Agency determined
Complainant’s back pay should be reduced by an amount of $3,267.00 for outside earnings.
Additionally, the decision stated it was “uncontested that Complainant suffered financial loss in
the Thrift Savings Plan and, accordingly, we grant the Complainant $23,000.00 for loss of the
Thrift Savings Plan benefits.”2 The Agency awarded Complainant $114,413.00 in back-pay,
$8,000.00 in nonpecuniary damages, $4,810.00 in pecuniary losses, $23,000.00 for lost Thrift
Savings Plan (TSP) benefits, and $10,950.00 in attorney’s fees. Complainant was advised that he
could file an appeal with Commission within 30 days after receipt of the Agency’s final decision.

Complainant did not appeal the Agency’s Damages Decision. Complainant submitted a motion
for reconsideration of his compensatory damages claim to the Agency. The Agency submitted a
response in opposition to Complainant’s request for reconsideration.

On September 16, 2016, the Agency issued a Final Agency Decision on Reconsideration Request
for Compensatory Damages (Reconsideration Decision). The Agency denied Complainant’s
Motion for Reconsideration. The Agency stated the only damages awarded to Complainant were
those specifically listed in the final decision dated September 30, 2015. Complainant was advised
that he could file an appeal with Commission within 30 days after receipt of the Agency’s final
decision.

Complainant did not appeal the Agency’s Reconsideration Decision.

2 The Agency noted on July 30, 2015, the Employment Adjudications Division received
documentation from the Human Resources Division noting Complainant is entitled to $23,000.00
in TSP benefits.
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Thereafter, Complainant filed a claim of noncompliance with the Agency. On July 28, 2016, the
Agency provided a response to Complainant’s allegation of noncompliance. On March 1, 2018,
the Agency issued a Final Agency Decision on Allegation of Noncompliance (Noncompliance
Decision). The Agency noted Complainant claimed the Damages Decision awarded him
$161,173.00; however, he has received $114,413.00 and $24,709.14, leaving a total of $22,050.86
yet to be paid to him. The Agency noted Complainant calculated the Agency owed him
$25,153.86, stating the Agency erroneously reduced his back pay by $4,525.00 for outside work
performed, when it should have reduced it by $3,267.00, the actual amount of outside work. The
Agency noted Complainant also alleged that since July 2013, he has incurred additional legal fees
of 4.2 hours for a total of $1,855.00. Thus, the Agency noted Complainant stated the total award
owed to him was $25,153.86.

In response, the Agency asserted it fully complied with all obligations under the Damages
Decision, and further stated Complainant was overpaid in the amount of $692.26 in interest
accrued due to the delay in the payment. The Agency stated the Damages Decision accepted the
TSP contribution to be $23,000.00, and that this amount would be deducted from Complainant’s
back pay, along with other deductions for taxes and insurance premiums. Thus, the Agency
contended the Damages Decision required the Agency to pay a total of $138,173.00 ($114,413.00
+ 4,810.00 + 8,000.00 + 10,950.00 = 138,173.00) and to deposit $23,000.00 of that amount into
Complainant’s TSP account. The Agency stated that in October 2014, it paid Complainant
$114,219.06 in back pay (less applicable payroll taxes, health insurance and life insurance
premiums) and $23,000.00 for Complainant’s contributions to his TSP account. The Agency
stated that on December 15, 2016, it deposited $24,709.14 into Complainant’s account for
nonpecuniary damages, pecuniary damages, attorney’s fees, interest, and for additional back pay
of $193.94.

The Noncompliance Decision noted the Agency provided evidence showing: Complainant’s
restoration computations; Special Payroll Processing System records; National Finance Center
Payroll records; Statement of Earnings and Leave; and screenshots of the Agency’s Financial
Management Modernization Initiative (FMMI) system, showing payment to Complainant on
December 16, 2016, in the amount of $24,709.14.

The Agency determined it was in compliance with the Damages Decision. The Agency stated it
received documentation from the Human Resources Division (HR) stating Complainant was
entitled to $117,680.00, minus $3,267.00 for outside work performed, for a total of $114,413.00.
The Agency noted it provided clear documentation of all deductions made from Complainant’s
back pay award consisting of TSP contributions, and specified how it calculated these amounts.
The Agency claimed the evidence demonstrated it deposited $23,000.00 into Complainant’s TSP
account, and the remainder of the back pay (minus appropriate deductions) were paid to
Complainant.

Regarding Complainant’s claim that $1,258.00 in back pay was still owed due to an erroneous
calculation of his outside work, the Agency found Complainant received the full amount awarded
to him in the Damages Decision.
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The Agency noted the Damages Decision stated Complainant was entitled to a back pay award of
$114,413.00. The Agency noted the Damages Decision arrived at this amount based upon the
finding that Complainant earned $3,267.00 in outside work, not $4,164.00. The Agency noted that
Complainant admitted he received $114,413.00, which is the entire back pay amount awarded to
him in the Damages Decision. Thus, the Agency stated it did not owe Complainant any additional
back-pay.

Further, the Agency stated the payment of $24,709.14, which included interest, covered the
nonpecuniary and pecuniary damages, as well as Complainant’s attorney’s fees. The Agency
noted that while Complainant claimed he incurred additional attorney’s fees of $1,855.00, it found
the attorney’s fees awarded in the Damages Decision was based on documentation provided by
Complainant and covered all attorney’s fees to which he was entitled. The Agency found as
Complainant did not prevail on any new issues, he was not entitled to additional attorney’s fees.

Thereafter, Complainant filed the present appeal with the Commission alleging the Agency failed
to comply with its final decision. On appeal, Complainant states he was due a total of $161,173.00
($114,413.00 + $23,000.00, + $4,810.00 + $8,000 + $10,950 = 161,173.00). Complainant stated
he received $48,665.00 on October 9, 2014, and $24,709.14 on December 16, 2016, for a total of
$73,374.14, which he argues is short of the required $161,173.00 he is due.

Complainant states his voluntary TSP contributions of $23,000.00 were deducted from the October
2014 payment he received. Complainant argues that one of the items authorized by the May 16,
2014 final decision was loss of interest earnings on TSP contributions that he would have made
during the time he was terminated. Complainant noted his attorney at the time claimed
Complainant “suffered damages in the amount of $7,889 from Thrift Savings Plan losses due to
his termination.” Complainant stated he was awarded $23,000.00 at the suggestion of the
Agency’s HR Department. Thus, he argues the deduction of $23,000.00 from his back pay award
was improper.

Complainant acknowledges the prior decision of September 30, 2015, awarded him a gross amount
of back pay of $114,413.00. Complainant admits he received the October 2014 and December 16,
2016 payments. Complainant reiterates the $23,000.00 TSP award is based on financial loss, and
has nothing to do with his voluntary TSP contributions, and cannot be written off as a payroll
deduction. Complainant also requests additional attorney’s fees for work done.

In response to Complainant’s appeal, the Agency argues Complainant misunderstands what the
Damages Decision awarded him, including the fact that “make whole relief” includes deductions
from back pay for applicable retirement contributions, healthcare premiums, and taxes. The
Agency also argues Complainant makes an untimely appeal of the September 30, 2015 Damages
Decision.

The Agency notes its Damages Decision accepted the calculations provided by the Agency’s
Office of Human Resources (HR) and the National Finance Center (NFC), including the
calculation of Complainant’s TSP contributions.
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The Agency noted the Damages Decision required the Agency to pay Complainant a total of
$138,173.00 ($114,413.00 in back pay, $4,810.00 in pecuniary damages, $8,000.00 in
nonpecuniary damages, and $10,950.00 in attorney’s fees = $138,173.00).

The Agency explains it took several steps to comply with the Damages Decision. The Agency
notes on October 7, 2014, it instructed the NFC to make Complainant whole from November 29,
2012 (Complainant’s termination date), through September 8, 2014 (Complainant’s reinstatement
date).

The Agency notes NFC calculated the appropriate withholdings and deductions, including
deductions for TSP contributions based on Complainant having selected to deduct $500.00 per pay
period for TSP contributions.

The Agency states on or about October 30, 2014, it paid Complainant $114,219.06 in gross back
pay. From this back pay, the Agency deducted applicable payroll taxes, health insurance and life
insurance premiums, and $23,000.00 for Complainant’s contributions to his TSP account.

The Agency notes on December 15, 2016, it deposited $24,709.14 into Complainant’s bank
account. The Agency states this payment accounted for additional back pay of $193.94 in addition
to nonpecuniary damages, pecuniary damages, attorney’s fees, and interest. The Agency states it
paid Complainant $692.26 more than was ordered by the Damages Decision partially due to
interest accrued due to the delay in payment and partially due to the Agency’s miscalculation in
December 2016, for which the Agency has not sought reimbursement. The Agency notes in sum,
it paid Complainant $138,865.26 and deposited $23,000.00 of Complainant’s back pay into his
TSP account.

The Agency argues its Noncompliance Decision properly found the Agency paid Complainant the
entire amount of back pay due and damages due. The Agency states Complainant’s
noncompliance claim appears to be based on his lack of understanding (or refusal to accept) that
an employee’s TSP contributions are deducted from back pay. The Agency notes when the parties
briefed the issue of damages, the only dispute was about the appropriate deduction for
Complainant’s outside employment while he was not employed with the Agency. The Agency
claims Complainant did not otherwise challenge the back pay estimates calculated by Human
Resources and NFC, which included the back pay deduction for TSP contributions.

The Agency notes the Commission has held that “make whole” relief requires an Agency to make
retroactive tax-deferred contributions to Complainant’s TSP account during the back pay period.
Thus, the Agency states that to the extent Complainant would have contributed to his TSP account
and received Agency contributions as a component of his salary, he is entitled to have his
retirement benefits and TSP adjusted as part of his back pay award. The Agency claims it did this
and thus, is in full compliance with the Damages Decision.

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ANALYSIS AND FINDINGS

EEOC Regulation 29 C.F.R. § 1614.504(a) provides that a final agency action that has not been
the subject of an appeal or a civil action shall be binding on the agency. The regulation provides
further that if a complainant believes that the agency has not complied with the terms of the final
decision, that the complainant shall notify the Agency EEO Director, in writing, within thirty days
of the date on which the complainant knew or should have known of the noncompliance. 29 C.F.R.
§ 1614.504. If Complainant does not receive a response or is not satisfied with said response, a
complainant may appeal to the Commission for a determination as to whether the agency is in
compliance. 29 C.F.R. § 1614.504(b).

At the outset, we note that Complainant’s arguments that the Agency improperly calculated his
back pay are beyond the scope of the present appeal. We note the Agency’s Damages Decision
determined Complainant’s back-pay calculation, after deduction of work performed, required the
Agency to pay Complainant $114,413.00. We note the time for Complainant to appeal the relief
determined in the September 30, 2015 Damages Decision or the September 16, 2016
Reconsideration Decision has passed. Accordingly, we find Complainant is not entitled to
additional remedies beyond those ordered in the Agency’s Damages Decision. Thus, the present
decision only addresses Complainant’s claim that the Agency failed to comply with its prior
decisions which awarded Complainant $114,413.00 in back pay, $8,000.00 in nonpecuniary
damages, $4,810.00 in pecuniary losses, $23,000.00 for lost TSP benefits, and $10,950.00 in
attorney’s fees.

Regarding back pay, we note the Agency’s Damages Decision determined Complainant was due
$114,413.00 in back pay. The Agency contends when the parties briefed the issue of damages,
Complainant did not dispute the back pay estimates calculated by HR and NFC, which included
the back pay deduction for TSP Contributions. The Agency states the NFC’s Restoration
Computation noted that the $23,000.00 TSP contribution would be deducted from Complainant’s
back pay along with the other deductions for taxes and insurance premiums. The Agency claims
the Damages Decision accepted the NFC’s Restoration Computation at page 11, footnote 3.
However, we note page 11 of the Damages Decision granted Complainant $23,000.00 for loss of
TSP benefits. Additionally, footnote 3 stated “[o]n July 30, 2015, the Employment Adjudications
Division received documentation from the Human Resources Division noting the Complainant is
entitled to $23,000 in TSP benefits.” Despite the Agency’s contention, we find nothing in the
Damages Decision informed Complainant that it would deduct $23,000.00 from his back pay for
TSP contributions. Similarly, we note there is nothing in the Agency’s Reconsideration Decision
informing Complainant that the Agency was reducing his back pay by $23,000.00 due to TSP
contributions. Thus, we find Complainant’s present challenge to the Agency’s reduction of his
back pay order for $23,000.00 in TSP contributions to be timely raised.

The record contains an LES (Leave and Earnings Statement) for pay period 20 for the dates
October 5, 2014 through October 28, 2014, indicating the Agency had paid Complainant
$114,219.06 in gross back pay, including $23,000.00 in “MISC DEDUCTION.”
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The record reveals that from the back pay award of $114,413.00, the Agency deducted payroll
taxes, health insurance and life insurance premiums, retirement contributions, and $23,000.00 in
TSP contributions. After making the stated deductions, the record reveals the Agency determined
Complainant was due $48,665.00 in net pay. Complainant acknowledges receipt of $48,665.00
on October 2014, and $24,709.14 on December 16, 2016.

We address Complainant’s contention that the Agency improperly deducted $23,000.00 in TSP
contributions from this back pay award. We note Complainant does not challenge any other
deduction from his back pay award and does not challenge any other compliance matter. The
Agency’s Damages Decision stated it was “uncontested that Complainant suffered financial loss
in the Thrift Savings Plan and, accordingly, we grant the Complainant $23,000.00 for loss of the
Thrift Savings Plan benefits.” The Agency decision ordered the Agency to pay Complainant
$23,000.00 for loss of the Thrift Savings Plan as relief separate from its back pay award. Thus,
we find the Agency improperly deducted $23,000.00 in TSP contributions from the back pay
award of $114,413.00 and is not in compliance with its Damages Decision. We note Complainant
does not claim that he did not receive the $23,000.00 in TSP contributions the Agency claimed to
have deposited into his TSP account.

CONCLUSION

Accordingly, the Agency’s final decision finding that it was in compliance with its final decision
is REVERSED and the matter is REMANDED to the Agency for further action in accordance with
the Order herein.

ORDER

Within 60 days of the date this decision is issued, the Agency shall take the following actions:

To the extent it has not already done so, the Agency shall pay Complainant gross back pay
in the amount of $114,413.00 minus appropriate deductions. The Agency shall not deduct
TSP contributions from the back pay award.

A copy of the Agency’s evidence of compliance must be sent to the Compliance Officer as
referenced herein.

ATTORNEY'S FEES (H1016)
If Complainant has been represented by an attorney (as defined by 29 C.F.R. § 1614.501(e)(1)(iii)),
he 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.
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IMPLEMENTATION OF THE COMMISSION’S DECISION (K0719)
Under 29 C.F.R. § 1614.405(c) and §1614.502, compliance with the Commission’s corrective
action is mandatory. Within seven (7) calendar days of the completion of each ordered corrective
action, the Agency shall submit via the Federal Sector EEO Portal (FedSEP) supporting documents
in the digital format required by the Commission, referencing the compliance docket number under
which compliance was being monitored. Once all compliance is complete, the Agency shall
submit via FedSEP a final compliance report in the digital format required by the Commission.
See 29 C.F.R. § 1614.403(g). The Agency’s final report must contain supporting documentation
when previously not uploaded, and the Agency must send a copy of all submissions to the
Complainant and his/her representative.
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.
Failure by an agency to either file a compliance report or implement any of the orders set forth in
this decision, without good cause shown, may result in the referral of this matter to the Office of
Special Counsel pursuant to 29 CFR § 1614.503(f) for enforcement by that agency.

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
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. A party shall have
twenty (20) calendar days of receipt of another party’s timely request for reconsideration in
which to submit a brief or statement in opposition.
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See 29 C.F.R. § 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R.
Part 1614 (EEO MD-110), at Chap. 9 § VII.B (Aug. 5, 2015). All requests and arguments must
be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity
Commission. Complainant’s request may be submitted via regular mail to P.O. Box 77960,
Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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 agency’s request must be submitted in digital format via the EEOC’s Federal
Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). 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 (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.

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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 26, 2019
Date