[Redacted], Arlette W., 1 Complainant,v.Lloyd J. Austin III, Secretary, Department of Defense (Department of Defense Education Activity), Agency.

Equal Employment Opportunity Commission

Sep 27, 2022

Appeal No. 2021001994 (E.E.O.C. Sep. 27, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Arlette W.,1 Complainant, v. Lloyd J. Austin III, Secretary, Department of Defense (Department of Defense Education Activity), Agency. Appeal No. 2021001994 Hearing No. 570-2014-00375X Agency No. EUFY14032, EUFY13025 DECISION Complainant filed an appeal with the Equal Employment Opportunity Commission (“EEOC” or “Commission”), pursuant to 29 C.F.R. § 1614.504, alleging noncompliance with the Agency’s Final Order concerning her equal employment opportunity (“EEO”) complaint, wherein an EEOC Administrative Judge (“AJ”) found the Agency in violation of Title VII of the Civil Rights Act of 1964 (“Title VII”), as amended, 42 U.S.C. § 2000e et seq., and Section 501 of the Rehabilitation Act of 1973 (“Rehabilitation Act”), as amended, 29 U.S.C. § 791 et seq.2 The Commission accepts the appeal in accordance with 29 C.F.R. § 1614.405. 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. 2 Although Complainant characterizes her appeal as a Petition for Enforcement, her allegation of noncompliance is properly docketed as an appeal because it concerns a final action that has not already been the subject of an appeal or civil action. See 29 C.F.R. § 1614.504; see e.g., Kiara R. v. United States Postal Serv., EEOC Appeal No. 2020003876 (Sept. 2, 2021). 2021001994 2 BACKGROUND At the time of events giving rise to this complaint, Complainant was employed by the Agency as a teacher at the Ramstein Intermediate School (“RIS”) in Germany. Complainant filed formal EEO complaints on January 17, 2013 and May 15, 2014, which were investigated separately, then consolidated after Complainant timely requested a hearing before an EEOC AJ for both cases. A hearing was held from March 12 through 15, 2018. The AJ determined the complaints raised the following claims of discrimination on the bases of disability (depression, anxiety, PTSD) and reprisal for protected EEO activity: 1. From November 7, 2012 through January 25, 2013, the Agency failed to stop harassment directed at Complainant by (1) her coworker, (2) her first-level supervisor, the Principal, RIS; and (3) the Assistant Principal, RIS.3 2. From December 13, 2012 through September 13, 2012, the Principal, RIS, denied Complainant a reasonable accommodation. 3. On December 12, 2012, the Principal, RIS, attempted to force Complainant to undergo a Fitness for Duty Examination. 4. On February 6, 2013, the Principal, RIS, issued Complainant a Letter of Reprimand. 5. On July 15, 2013, Complainant was forced to retire due to the severe mental and emotional hostility the Principal, RIS, caused her to suffer. 6. On September 3, 2013, Complainant was also forced to retire due to a pattern of hostility that made it impossible for her to return to her job. 7. From July 15, 2013 through August 27, 2013, a Human Resources Specialist for the DoDEA-Europe Area Office, attempted to thwart Complainant’s constructive discharge claim by providing her false and misleading information regarding her retirement inquiry. 8. Beginning on September 9, 2013, the Human Resources Specialist intentionally delayed issuing orders for Complainant’s move back to the United States. 3 The AJ listed 5 examples under Claim 1 and discussed additional incidents throughout the Decision, such as the Principal, RIS and Complainant’s coworker spreading misleading and disparaging allegations about Complainant, the Principal, RIS subjecting Complainant to excessive monitoring, threatening remarks, and, along with Complainant’s co-worker and the Assistant Principal, violating or perpetuating violations of Complainant’s medical privacy. 2021001994 3 On August 11, 2020, the AJ issued a Decision on Liability and Relief (“Decision”) in favor of Complainant. The AJ ordered the Agency to, within ninety calendar days of the date the Agency issued a final order: (1) calculate and pay Complainant back pay for the period of September 16, 2013 through September 16, 2015, plus applicable interest and other benefits, as appropriate under 29 C.F.R. § 1614.501 (2019); (2) pay Complainant $90,000.00 in non-pecuniary compensatory damages, and; (3) provide all current RIS employees with at least eight hours of training. On September 22, 2020, Agency issued a Final Order adopting the AJ’s decision in its entirety. Complainant asserts that on August 28, 2020, the Agency informed her and her non-attorney representative that it intended to implement the AJ’s Order. Complainant provides a copy of a September 14, 2020 letter and certificate of service to the EEO Complaints Manager, DoDEA Americas Resolution and Compliance Branch, stating, “[y]ou will recall our client provided you with her banking information to facilitate the deposit of funds to satisfy an award of compensation.” Although the record contains no response from the Agency, Complainant acknowledges that she was timely paid compensatory damages. On February 2, 2021, Complainant, through her non-attorney representative, filed the instant appeal, asserting that the Agency failed to comply with Part 1 of the AJ’s Order and that it offered no evidence of compliance with Part 3 of the order. Assuming that the Agency had the information it needed from Complainant to process the payment of her backpay award, the 90- day deadline expired on December 22, 2020. Also, Complainant argues that the Agency failed to pay her reasonable costs associated with the litigation of her complaint. The Agency did not submit a response. On November 1, 2021, Complainant, through her non-attorney representative, requested an update from the Agency, as she still had not received payment. The Agency promptly responded: “According to DFAS,4 they made a payment to [Complainant] for the pay period ending September 25, 2021, for the timeframe of August 10, 2013, through September 19, 2015.” On November 3, 2021, Complainant confirmed that she received a statement reflecting one year of back pay but no payment. The Agency responded within minutes, stating that it would “look into the matter,” then notified Complainant that they sent a status inquiry to DFAS. In a November 17, 2021 email, the Agency informed Complainant’s non-attorney representative, “DFAS mailed a check to [Complainant] towards the end of October/early November.” On November 12, 2021, Complainant engaged the services of legal counsel. On November 23, 2021, Complainant, through counsel, notified both the Agency’s EEO office and the Agency’s Deputy General Counsel that she had not received payment for back pay, requested a copy of the check and the Agency’s calculations for ascertaining back pay, and sought confirmation that the Agency notified the Office of Personnel Management (“OPM”) to adjust her years of service to 4 Payments are processed through the Agency’s Defense Financial Accounting Service (“DFAS”). 2021001994 4 include the two-year back pay period plus accumulated sick leave so that the OPM would adjust Complainant’s annuity payments accordingly. On November 24, 2021, the Agency responded that “DFAS traced the check issued to [Complainant] and determined it was returned.” According to the email, the check was mailed “in the beginning of October” to the address provided on the “Employee Statement Relative To Back Pay Form.” The Agency provided the address it used and requested confirmation so the check could be reissued. The address did not match Complainant’s address of record5 and the Agency did not provide a copy of the referenced statement. On December 3, 2021, the Agency confirmed receipt of Complainant’s banking information, and stated that it had been submitted, along with Complainant’s request for documentation regarding back pay calculations, to DFAS. Complainant followed up several times, and on December 21, 2021, she was assured by the Agency that she could expect payment of the back pay within two to three days. On January 11, 2022, Complainant notified the Agency that she still had not received payment. The Agency responded the next day, apologizing and reaching out to DFAS once again. On January 14, 2022, the Agency issued an electronic payment to Complainant for $226,422.31, which it identified as back pay and interest. Complainant reiterated her request for documentation of the Agency’s calculations, per the AJ’s Order, and confirmation that OPM was notified of the change in retirement date. On January 31, 2022, Complainant repeated her request for back pay calculations and confirmation regarding OPM. On February 1, 2022, the Agency provided Complainant with “back pay audit” generated by DFAS. The back pay calculations reflected a gross earnings amount of $210,162.46 and interest on back pay of $67,870.69. Total deductions amounted to $42,848.06, including Federal Income Tax, Retirement contributions (FERS/CSRS, Medicaid, OASDI) and a $8,762.78 “debt collection.” The adjusted gross back pay plus interest amounted to $278,033.15 with a net pay amount of $226,422.31. On February 24, 2022, Complainant emailed the Agency with “Back Pay Follow up Questions,” and listed the following issues: (a) she was still owed five and a half months of interest on the back pay amount, (b) DFAS erroneously deducted $8,762.78 for a “debt collection,” that Complainant already paid, (c) the back pay documents did not address the annual and sick leave she would have accrued during the back pay period, and (d) the Agency had not confirmed whether it notified OPM about her updated years of service. On March 9, 2022 and March 25, 2022, Complainant contacted the Agency, reiterating her concerns, and was informed that DFAS was reviewing the matter. Complainant asserts that her most recent inquiry with the Agency was on May 22, 2022, and she has not received a response. 5 Complainant’s address of record was that of her former non-attorney representative. 2021001994 5 The Agency has not submitted a response brief to Complainant’s appeal, and her update regarding its noncompliance, to the Commission. ANALYSIS AND FINDINGS When discrimination is found, the Agency must provide the complainant with a remedy that constitutes full, make-whole relief to restore them as nearly as possible to the position they would have occupied absent the discrimination. Doyle S. v Dep’t of the Interior, EEOC Appeal No. 2021003144 (Mar. 17, 2022) citations omitted. It must therefore provide a remedy unless it can show, by clear and convincing evidence, that Complainant would not have been entitled to that remedy even absent discrimination. Brown v. Dep’t of the Navy, EEOC Petition No. 0420120012 (June 5, 2013) (citations omitted); see also 29 C.F.R. § 1614.501(c)(2). Under EEOC regulation 29 C.F.R. § 1614.504, a complainant who is not satisfied with the agency's attempt to resolve a final action that has not been the subject of an appeal or civil action, may appeal to the Commission for a determination as to whether the agency has complied with the terms of the decision. Back Pay 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. Hanns v. U.S. Postal Service, EEOC Petition No. 04960030 (Sept. 18, 1997). However, uncertainties involved in a back-pay determination should be resolved against the agency which has already been found to have committed the acts of discrimination. Id., see also, Clay W. v. Dep’t of the Army, EEOC Appeal No. 2019005317 (Feb. 25, 2020) (“While unrealistic exactitude is not required in back-pay determinations, uncertainties involved in such determinations usually are resolved against the discriminating employer”). An Agency must provide a plain language explanation for how it calculates a back pay award. See e.g. Terrence H. v. Dep’t of Veterans Affairs, EEOC Appeal No. 2019005811 (June 30, 2020) (finding the Agency was not in compliance with its final order where it offered screen shots evincing payment but did not provide calculations or a plain language explanation for how it arrived at the amounts paid), Vashi v. U.S. Postal Service, EEOC Petition No. 0420060009 (Dec. 5, 2007) (noting that it is the agency's obligation to ensure that its back-pay calculations are clear, supported by the record, and in accordance with 29 C.F.R. § 1614.501.) Applicable Time Frame for Interest Calculation Here, the Agency’s proffered back pay calculations reflect interest through September 1, 2021. Complainant argues, however, that she is entitled to interest through December 15, 2021, one month prior to the date the Agency issued her electronic payment. 2021001994 6 To establish proof of payment of a back pay award, the Agency must provide a copy of the cancelled check issued or copy of a screen shot showing an electronic funds transfer. EEO MD- 110, Appx. Q. As a last resort, a narrative statement by an appropriate agency official regarding the total monies paid, name of payee, and date of payment will be accepted. In the instant case. the Agency has provided no such documentation. The only acceptable documentation of payment in the record is a screen shot of the electronic transfer on January 14, 2022. Although several emails in the record reference a check issued sometime between mid-September 2021 and early November 2021, there is no evidence of any check, or confirmation that it was sent to Complainant at her address of record. There is also no explanation for why Complainant did not receive payment for over a month after she responded to the Agency’s November 2022 request for her banking information for a direct deposit payment. Moreover, the Agency does not dispute Complainant’s evidence that she had already provided the Agency with her banking information, to allow for an electronic payment, on or around September 14, 2020. The Commission finds that January 14, 2022, shall be the payment date for purposes of calculating interest on back pay that has already been issued, based on the email evidence provided by Complainant and the Agency’s failure to demonstrate that it issued payment on an earlier date, despite ample opportunity to do so. See, contra Arrowood v. Dep’t of Veterans Affairs, EEOC Appeal No. 01A24290 (Dec. 8, 2003) (complainant argued that the agency owed interest on net back pay for the period of February 28, 2002 through May 8, 2002 because the check was issued on February 28, 2002, but it was not delivered until May 8, 2002, and the complainant did not submit “evidence the agency was obligated to pay him the additional interest”). Erroneous Deduction for Debt Collection The Agency’s Back Pay Report reflects, under “Adjusted Gross Back Pay Owed”, a debt collection for $8,762.78. Complainant provides supportive documentation that DFAS already collected the debt from her monthly social security annuity, including a letter, issued by DFAS, which states that Complainant’s debt for “overpayment due to allowance and personnel changes” was paid in full as of August 17, 2018. With respect to the second debt amount, the Agency explained that teachers were typically paid on a 12-month pay cycle, but because Complainant “left early” she was not authorized to receive pay for recess duty, nor post allowance. “With early separation on August 29, 2013, you were only entitled to actual days worked, thus creating a debt for money already paid out.” In addition to erroneously paying Complainant for the recess period, the Agency had also paid Complainant for several days in August 2013 that were subsequently coded as leave without pay (“LWOP”). DFAS determined that Complainant was “coded as having worked 7 classroom days and 7 calendar year days and we based our reexamination calculation on that information.” 2021001994 7 Based on the AJ’s Order, Complainant’s retirement date was not August 29, 2013, but September 16, 2015. Therefore, Complainant should have been paid at the 12-month rate and received her allowance through that time. But for the Agency’s discriminatory and harassing actions, Complainant would not have been subjected to a debt in the gross amount of $3,658.21, and she would not have had decreased annuity payments for as long as she did. Complainant is entitled to repayment of the $8,762.78 debt, plus the amount she was erroneously charged based on a retirement date of August 29, 2013. Restoration of Annual and Sick Leave The restoration of leave is equivalent to an award of lost benefits which would have been earned, retained or accrued absent discrimination. Brown v. Dep’t of the Navy, EEOC Petition No. 0420120012 (Jun. 5, 2013). As a federal employee, Complainant is entitled to reimbursement for any unused annual leave she accrued during her employment. Williams v. United States Postal Serv., EEOC Petition No. 04990033 (May 11, 2001). While Complainant is not entitled to payment for unused sick leave, she is entitled to having her sick leave restored for purposes of annuity calculations. See Brown. The Agency has not provided a plain language explanation for how it addressed Complainant’s accumulated annual and sick leave during the back pay period. The calculations do not identify any amount of accumulated hours or payment attributed to annual or sick leave. Despite repeated requests from Complainant over a period of months (beginning when the back pay payment was nearly a year past due), the Agency did not offer any information regarding leave specifically. Rather, the Agency’s responses, while often prompt, failed to even acknowledge her desire for confirmation that the Agency notified OPM of her change in retirement and accumulated sick leave, so that it could adjust her annuity accordingly. In her June 23, 2022 statement, Complainant provided well-reasoned calculations based on OPM data and federal regulations, concluding that she accumulated approximately 320 hours of annual leave and 208 hours of sick leave during the back pay period. By Complainant’s calculations, 208 hours of unused sick leave is equivalent to 1 month and 6 days of additional service credit. In the interest of making Complainant whole, and to prevent further delays arising from DFAS’s lack of transparency, the Commission adopts Complainant’s calculations of accrued annual and sick leave for purposes of ensuring the Agency’s full compliance with its September 22, 2020 Final Order. Adjustments for Retirement/Notice to OPM The Commission has held that make whole relief requires the agency to make retroactive tax- deferred contributions to the complainant’s retirement account for the relevant period. EEOC MD-110 Ch. 11. 2021001994 8 To the extent complainant would have received agency contributions to a retirement fund as a component of her salary, she is entitled to have her retirement benefits adjusted as part of her back pay award, including sums which the account would have earned during the relevant period. Id. The agency should provide its calculations of the amount of contributions to the agency’s retirement system that both it and complainant would have made during her absence, as well as the earnings which would have accrued. See Kretschmar v. Dep’t. of the Navy, EEOC Petition No. 04A40044 (Mar. 25, 2005). The Commission has previously found that in situations like this, when OPM has already made a determination on a complainant’s retirement benefits, the Commission has held that an agency must still provide accurate information to OPM to enable OPM to recalculate a Complainant's service credit and retirement benefits. Complainant v. United States Postal Serv., EEOC Appeal no. 0120122965 (Nov. 13, 2014). The record is not clear on whether the Agency fulfilled its obligation to report Complainant’s back pay and additional sick leave days to OPM. Attorney’s Fees & Costs The Commission, an agency, or an AJ may award complainant reasonable attorney's fees and other costs incurred in the processing of a complaint regarding allegations of discrimination in violation of Title VII and the Rehabilitation Act. 29 C.F.R. § 1614.501(e). To establish entitlement to attorney's fees, complainant must first show that they are a prevailing party. See Buckhannon Bd. & Care Home Inc. v. West Virg. Dep't of Health & Human Resources, 532 U.S. 598 (2001). A prevailing party for this purpose is one who succeeds on any significant issue and achieves some of the benefit sought in bringing the action. See Davis v. Dep't of Transport., EEOC Request No. 05970101 (Feb. 4, 1999) (citing Henslev v. Eckerhart, 461 U.S. 427, 433 (1983)). A petition for fees and costs must take the form of a verified statement required by the Commission's regulations at 29 C.F.R. § 16l4.501(e)(2)(i). Attorney’s fees and costs are available for work pursuing claim for damages. Rivera v. National Aeronautics & Space Administration, EEOC Appeal No. 0120111416 (July 19, 2011). Neither a non-attorney nor a federal employee (including attorneys) who represents a complainant is entitled to an award of fees. 29 C.F.R. § 1614.501(e)(1)(iii). If the prevailing party is not represented by an attorney, they may still recover reasonable legal costs incurred directly. Hafiz v. Dep't of Def., EEOC Petition No. 04960021 (Jul. 11, 1997). Hence, costs that a complainant personally incurs in litigating their EEO claim (e.g. mileage, related parking fees, telephone, mailing, facsimile, and photocopying), to the extent they are connected to the allegation upon which she prevailed (including efforts to obtain fees and costs), are within the scope of recoverable expenses. Id., see e.g. Iesha P. v. Dep’t of Def. (DoDEA), EEOC Appeal No. 0120181046 (Jun. 6, 2019) (as prevailing party Complainant not entitled to travel expenses and retainer fee for her non-attorney representative, but could recover for transcripts and depositions where adequately documented). Costs must be proved in the same manner as fees are, and Complainant must provide documentation such as bills or receipts. MD- 11 at 11-13. 2021001994 9 Complainant is the prevailing party here, as the Agency adopted an AJ’s finding of discrimination and order of relief. Consequently, she is entitled to the reasonable costs arising from the litigation of her complaint. Complainant’s February 2, 2021 appeal, filed by her non- attorney representative, recounts that shortly after the AJ’s Decision was issued, Complainant petitioned the Agency for reasonable costs and provided it with “a detailed spreadsheet showing a breakdown of the costs expended, with supporting documents and a request was made for payment of the costs.” Complainant asserts that the Agency denied her petition, but has not included the referenced petition, supporting documentation, or the Agency’s response with her appeal. We find that Complainant has demonstrated that the Agency failed to timely or fully comply with its September 22, 2020 Final Order adopting the AJ’s August 11, 2020 Decision. Thus, as the prevailing party in the underlying complaint, Complainant is entitled to reasonable attorney fees and costs for efforts to obtain compliance with the Agency’s Final Order. Complainant may petition the Agency for any reasonable costs that she personally incurred in her effort to obtain compliance prior to retaining a legal representative, as well as for attorney’s fees and costs incurred after she obtained legal representation. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we REVERSE the Agency's decision that it has complied with the provisions of its Final Order adopting the AJ’s August 11, 2020 Decision. We hereby REMAND the matter to the Agency for processing in accordance with this Decision and following Order. ORDER (C0618) The Agency is ordered to take the following remedial actions: 6 I. Repay Debt Collection Error. Within sixty (60) calendar days of the date this decision is issued, the Agency shall repay Complainant, with interest (from August 17, 2018 through payment to Complainant) for the additional debt that it identified in the April 28, 2015 letter as arising from the “adjustment made by personnel” that was calculated based on an erroneous retirement date of August 29, 2013 (e.g. recess salary for 2013 and LQA for August 2013). II. Reimburse Erroneous Back Pay Deduction. Within sixty (60) calendar days of the date this decision is issued, the Agency shall confirm with Complainant that it has the necessary information to send an electronic payment, and then issue Complainant an electronic payment of $8,762.78. 6 If the above-referenced relief has already been implemented, the Agency shall include supporting documentation in the compliance report. 2021001994 10 III. Recalculate Back Pay. Within sixty (60) calendar days after the date this decision is issued, the Agency shall determine, for the period of September 16, 2013 through September 16, 2015 and taking the corrections in Parts I and II of this order into account, the appropriate amount of back pay, interest, and other benefits due the Complainant, pursuant to 29 C.F.R. § 1614.501. The 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. If there is a dispute regarding the exact amount of back pay and/or benefits, the Agency shall issue a check to the Complainant for the undisputed amount within sixty (60) calendar days of the date the Agency determines the amount it believes to be due. The Complainant may petition for enforcement or clarification of the amount in dispute. The petition for clarification or enforcement must be filed with the Compliance Officer, at the address referenced in the statement entitled "Implementation of the Commission's Decision." In rendering a recalculated back pay amount, the Agency shall incorporate the following items: a. Stipulated Leave. The back pay calculations shall reflect 320 hours of accumulated annual leave and 208 hours of accumulated sick leave. b. Plain Language Explanation. The calculations shall be accompanied by a clear, written explanation regarding DFAS’s calculations pertaining to Complainant's backpay, including retirement benefits, and incorporating the stipulated amounts of accumulated annual and sick leave. c. Interest. Within sixty (60) calendar days of the date this decision is issued, the Agency shall determine the amount of interest owed on based on the net amount of back pay, pay additional interest based on a payment date of January 14, 2022 instead of September 1, 2021; interest on unpaid portions of this back pay award are calculated from the date payment was due (December 28, 2020) through the month prior to the date of payment, d. Annual Leave. Within thirty (30) calendar days of the date this decision is issued, to the extent that it has not already done so, the Agency shall issue Complainant a lump sum payment for 320 hours of accumulated annual leave, with interest, starting December 28, 2020 through the month of payment. IV. Lump Sum Tax Payment(s). The Agency shall reimburse Complainant for any lump sum payments arising from Part 1 (back pay) of the Agency’s August 11, 2021001994 11 2020 Order.7 To establish increased tax liability, Complainant, who bears the burden of proof, must submit evidence showing the difference between the taxes that she paid on the lump-sum payment and the taxes that she would have paid had the salary been earned over time. Peggie T. v. Dep’t of the Interior, EEOC Appeal No. 2020001880 (Apr. 22, 2021) citations omitted. V. Report to OPM. Within thirty (30) calendar days of the date this decision is issued, the Agency shall furnish OPM with the necessary information so that it can adjust Complainant’s annuity payments to reflect a retirement date of September 16, 2015 plus an additional service credit for 1 month and 6 days (208 hours of reinstated sick leave). VI. Attorney’s Fees and Costs. Complainant is entitled to reasonable attorney’s fees and costs for efforts to obtain Agency compliance with its September 22, 2020 Final Order, and may petition the Agency in accordance with the statement entitled “Attorney’s Fees.” 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 Complainant, including evidence that the corrective action has been implemented. ATTORNEY'S FEES (H1019) If Complainant has been represented by an attorney (as defined by 29 C.F.R. § 1614.501(e)(1)(iii)), she/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 receipt of this decision. The Agency shall then process the claim for attorney's fees in accordance with 29 C.F.R. § 1614.501. 7 The Commission has recognized that an agency is liable for any increased tax liability resulting from receipt of a lump sum of back pay in a single tax year. When an individual receives back pay as a lump sum payment, they are entitled to a tax offset payment for the tax year in which they received the payment. Additionally, the individual will have the burden of establishing the amount of their increased federal income tax liability to the agency. See Mohar v. U.S. Postal Service, EEOC Appeal No. 0720100019 (Aug. 29, 2011); Teresita Lorenzo v. Dep’t. of Defense Education Activity, EEOC Petition No. 01A61644 (Sept. 29, 2005); Warren Goetze v. Dep’t. of the Navy, EEO Appeal No. 01991530 (Aug. 23, 2001). 2021001994 12 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 C.F.R. § 1614.503(f) for enforcement by that agency. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0920) The Commission may, in its discretion, reconsider this appellate decision if Complainant or the Agency submits a written request that contains arguments or evidence that 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 for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration. 2021001994 13 A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within which to submit a brief or statement in opposition. 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). Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx Alternatively, Complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, a complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless Complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together with the 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. 2021001994 14 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 27, 2022 Date