[Redacted], Deon C., 1 Complainant,v.Gina M. Raimondo, Secretary, Department of Commerce (National Oceanic & Atmospheric Administration), Agency.

Equal Employment Opportunity Commission

Feb 8, 2023

Appeal No. 2021000877 (E.E.O.C. Feb. 8, 2023)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Deon C.,1 Complainant, v. Gina M. Raimondo, Secretary, Department of Commerce (National Oceanic & Atmospheric Administration), Agency. Appeal No. 2021000877 Agency No. 54201700043 DECISION On November 16, 2020, Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s October 16, 2020 final decision concerning his entitlement to remedies for an equal employment opportunity (EEO) complaint alleging employment discrimination in violation of the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. BACKGROUND At the time of events giving rise to this complaint, Complainant was an applicant for employment at the Agency’s National Oceanic and Atmospheric Administration. On January 2, 2017, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the basis of age (72) when: 1. He was not selected for the position of General Vessel Assistant, as advertised under Vacancy Announcement Number OMAO-SHIPS-GVA-2016-01-EX; and 2. He was not selected for the position of Able-Bodied Seaman, as advertised under Vacancy Announcement Number OMAO-SHIPS-AB-2016-01-EX 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. 2021000877 2 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 Opportunity Commission Administrative Judge (AJ). In accordance with Complainant’s request, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). In the decision, the Agency concluded that Complainant proved that Agency management subjected him to discrimination as alleged in Claim (2) but not with respect to Claim (1). As relevant to the instant decision, the Agency ordered that Complainant be offered the position of Able-Bodied Seaman (Day), or a substantially equivalent position, and back pay and benefits retroactive to June 6, 2016. The Agency made an offer of employment to Complainant for the position of Able-Bodied Seaman (Day), WM-9924-02 with NOAA’s Office of Marine and Aviation Operations, aboard the NOAA Ship Fairweather, located in Kodiak, Alaska. Complainant did not accept or reject the offer. Complainant filed an appeal with the Commission prior to the Agency’s completion of back pay and other benefits calculations. In Deon C. v. Dep’t of Commerce, EEOC Appeal No. 0120180586 (May 7, 2019), the Commission noted that any challenge to the specific terms of relief ordered by the Agency was untimely. As a result, the Commission found that the matter was better analyzed as an appeal regarding the Agency’s compliance with its final decision. The Commission concluded that the Agency had not fully complied with the final decision. The Commission ordered the Agency, among other things, to offer Complainant the Able-Bodied Seaman (Day) position with a 15-day acceptance period and to calculate the amount of back pay and other benefits due to Complainant. On June 13, 2019, the Agency offered Complainant the position of Able-Bodied Seaman (Day Worker), WM-9924-02. As with the position Complainant initially applied for in Claim (2), the position follows a Mixed Tour work schedule. Complainant accepted the position. The Agency subsequently issued a final decision regarding back pay and benefits owed to Complainant. In the decision, the Agency determined that Complainant was due $121,886.80 in gross back pay compensation from June 6, 2016, until 2019. The Agency submitted the following breakdown 2016 - Back pay compensation: $26,028.00 (Gross Amount) * FAA Salary = $31,500 provided by Complainant - Earnings from FAA are greater than the projected amount the complainant could have earned; therefore no additional compensation was awarded for 2016. 2017 - Back pay compensation: $25,713.15 (Gross Amount) 2017 - Pay-out: $14,063.88 (Net Deposit - Taxes Deducted) 2021000877 3 2018 - Back pay compensation: $34,410.09 (Gross Amount) 2018 - Pay-out: $19,238.51 (Net Deposit - Taxes Deducted) 2019 - Back pay compensation: $35,734.20 (Gross Amount) 2019 - Pay-out: $19,866.80 (Net Deposit - Taxes Deducted) Total Back Pay Compensation (Gross Amount): $121,886.24 Total Back Pay Compensation (Net Amount) Paid to Complainant: $53,169.19. The record contains information demonstrating the wage scale for Able-Bodied Seamen for each applicable year. The Agency also awarded Complainant 276 hours of annual leave, 267 hours of sick leave, and 44 hours of shore leave. The Agency based its calculations on an intermittent work schedule, which is what Complainant would have worked during the back pay period. The instant appeal followed. CONTENTIONS ON APPEAL On appeal, Complainant argues that the Agency incorrectly assumed he would have worked an intermittent schedule for the duration of the back pay period. Rather, “the typical employee would be promoted to full time status in the second year.” Complainant asks that the Agency “look at the average pay of all the wage mariner Able Seamen hired in 2016 and determine the pay of that cohort for 2016, 2017, 2018, and 2019.” Because Complainant believes he would have been promoted to full-time, he believes he is due $81,322 in 2018, and $84,462 in 2019. Complainant also argues that, because he would have been promoted, he should be awarded annual, sick, and shore leave as if he was a full-time employee. Complainant requests to be awarded 508 hours of annual leave, 344 hours of sick leave, and 89 days of shore leave. Additionally, Complainant argues that the Agency should be liable for adverse tax consequences as a result of the lump sum payment. While this appeal was pending, Complainant submitted a document styled a Petition/Appeal Seeking Specific Enforcement. In that statement, Complainant continues his argument that the Agency should compensate him for the adverse tax consequences resulting from its back pay award. Complainant calculates the amount of tax relief as either $19,829 or $20,099, and further seeks relief from Medicare penalties and accrued interest. 2021000877 4 ANALYSIS AND FINDINGS Back Pay and Leave Restoration Calculations The purpose of a back pay award is to restore a prevailing complainant to the position the individual would have occupied absent the discrimination. Albemarle Paper Co. v. Moody, 442 U.S. 405, 418-19 (1975); Davis v. U.S. Postal Serv., EEOC Petition No. 04900010 (November 29, 1990). A back pay claimant under Title VII generally has a duty to mitigate damages. See 29 C.F.R. § 1614.501(d). By the same token, the restoration of leave is equivalent to an award of lost benefits which would have been earned, retained or accrued absent discrimination. See Marr v. Dep't of the Air Force, EEOC Request No. 01941344 (June 27, 1996); Walker v. Ford Motor Co., 684 F.2d 1355 (Sept. 7, 1982). The Agency is required to make certain deductions from back pay awards to ensure that the employee does not receive more in total benefits than he would have received in the absence of the discriminatory action. The person who has been discriminated against must receive a sum of money equal to what would have been earned by that person in the employment lost through discrimination (gross back pay) less what was actually earned from other employment during the period, after normal expenses incurred in seeking and holding the interim employment have been deducted (net interim earnings). The difference between gross back pay and net interim earnings is net back pay due. Net back pay accrues from the date of discrimination, except where the statute limits recovery, until the discrimination against the individual has been remedied. Gross back pay should include all forms of compensation and must reflect fluctuations in working time, overtime rates, penalty overtime, Sunday premium and night work, changing rate of pay, transfers, promotions, and privileges of employment to which the petitioner would have been entitled but for the discrimination. See Ulloa v. U.S. Postal Serv., EEOC Petition No. 04A30025 (Aug. 3, 2004) (citing Allen v. Dep't of the Air Force, EEOC Petition No. 04940006 (May 31, 1996)); Perez v. U. S. Postal Serv., EEOC Petition No. 04A40041 (March 3, 2005). 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 Serv., 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. The Commission finds that it is reasonable to require the agency to provide a clear and concise “plain language” statement of the formulas and methods it used to calculate petitioner's back pay. See Vashi v. U.S. Postal Serv., 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 in the record and in accordance with 29 C.F.R. § 1614.501). 2021000877 5 In this case, the Agency presented evidence of their back pay and leave calculations and the wages that an Able-Bodied Seaman would have earned during the applicable periods. Complainant does not dispute the Agency’s calculation methodology. Rather, Complainant focuses his argument solely on the Agency’s decision to pay Complainant based on an intermittent schedule rather than full-time employment. We note that the vacancy announcement for the position at issue stated: As a condition of employment, your position will be a Mixed Tour position. Mixed Tour of duty is a combination of full time, part time and intermittent work schedules which allows the best utilization of resources based on the work requirements of the organization. You will be required to sign a Mixed Tour Agreement. Complainant presents no supporting evidence other than his own speculation that he would have worked a full-time schedule at any time during the back pay period. Accordingly, we can find no fault with the Agency’s back pay and leave restoration calculations. Adverse Tax Consequences Regarding adverse tax consequences, we recognize that our previous order did not explicitly require the Agency to pay Complainant an award for adverse tax consequences. However, the Commission has held that an award to cover additional tax liability from a lump sum payment of back pay is available to complainants. Goetze v. Dep't of the Navy, EEOC Appeal No. 01991530 (Aug. 22, 2001); Holler v. Dep't of the Navy, EEOC Appeal Nos. 01982627 and 01990407 (Aug. 22, 2001); Van Hoose v. Dep't of the Navy, EEOC Appeal Nos. 01982628 and 01990455 (Aug. 22, 2001). The award is available even if a decision does not explicitly order it. See Emerson S. v. U.S. Postal Serv., EEOC Petition No. 0420130026 (Nov. 20, 2015) (noting that decisions on petitions for enforcement have permitted claims for additional tax liability in cases where the Commission has not mentioned it in the original order); Cecile S. v. U.S. Postal Serv., EEOC Petition No. 0420120013 (Nov. 4, 2015) (agency erroneously found that petitioner was not entitled to an award for tax liability merely because AJ did not specifically order it as a remedy); Complainant v. Dep't of Veterans Affairs, EEOC Appeal No. 0120113377 (May 14, 2014) (complainant entitled to reimbursement for additional tax liability even though AJ's order was silent on the matter). Complainant correctly points out that the Agency’s back pay award does not take into consideration an award for adverse tax consequences. We recognize that Complainant has submitted a statement on appeal attesting to the amount of relief he believes he is owed. We remind the parties that we have demonstrated the acceptable methodology for calculating adverse tax consequences in previous decisions. In Israel F. v. Dep't of Homeland Sec., EEOC Petition No. 0420120010 (Aug. 3, 2016), we explained: Petitioner should submit detailed calculations showing the tax liability that he actually incurred for each year of the back-pay period, the tax liability that he would have incurred in each of those years if he had received the back pay in the form of 2021000877 6 a regular salary, and the tax liability that he incurred solely as a result of his receipt of the lump-sum back-pay award. Accordingly, we will remand the matter to the Agency to determine an appropriate award for adverse tax consequences. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we MODIFY the Agency’s final decision and REMAND the matter to the Agency for further processing in accordance with the ORDER below. ORDER The Agency is ordered to take the following remedial action with respect to adverse tax consequences: The Agency shall reimburse Complainant for any tax consequences he incurs as a result of the one-time, lump sum remuneration of his back pay. Complainant is also entitled to any fees incurred to obtain such calculation, such as an accountant's or tax preparer's fees. Within 90 days of the end of the tax year in which the Agency completes its payment of the back pay due to Complainant, Complainant shall provide the Agency with his calculation of the additional taxes and fees he incurs as a result of the one-time lump sum backpay award. Within 90 days of receiving such information from Complainant, the Agency shall compensate him for the established adverse tax consequences of his lump sum back pay award. 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. 2021000877 7 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. 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. 2021000877 8 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 (T0610) This decision affirms the Agency’s final decision/action in part, but it also requires the Agency to continue its administrative processing of a portion of your complaint. You have the right to file a civil action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision on both that portion of your complaint which the Commission has affirmed and that portion of the complaint which has been remanded for continued administrative processing. In the alternative, you may file a civil action after one hundred and eighty (180) calendar days of the date you filed your complaint with the Agency, or your appeal with the Commission, until such time as the Agency issues its final decision on your complaint. If you file a civil action, you must name as the defendant in the complaint the person who is the official Agency head or department head, identifying that person by his or her full name and official title. Failure to do so may result in the dismissal of your case in court. “Agency” or “department” means the national organization, and not the local office, facility or department in which you work. If you file a request to reconsider and also file a civil action, filing a civil action will terminate the administrative processing of your complaint. RIGHT TO REQUEST COUNSEL (Z0815) If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant’s Right to File a Civil Action for the specific time limits). FOR THE COMMISSION: Carlton M. Hadden’s signature Carlton M. Hadden, Director Office of Federal Operations February 8, 2023 Date