0420120003
03-21-2013
William B. Smith, Petitioner, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
William B. Smith,
Petitioner,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Petition No. 0420120003
Appeal No. 0120091163
Agency No. 2001-0534-2007101565
DECISION ON PETITION FOR ENFORCEMENT
On November 15, 2011, the Equal Employment Opportunity Commission (EEOC or Commission) docketed a petition for enforcement to examine the enforcement of Orders set forth in William B. Smith v. Department of Veterans Affairs, Appeal No. 0120091163 (January 21, 2011). The Commission accepts this petition for enforcement pursuant to 29 C.F.R. � 1614.503. Petitioner alleged that the Agency failed to fully comply with the Commission's order regarding the payment of back pay, liquidated damages, and other benefits.
BACKGROUND
At the time of events giving rise to this complaint, Petitioner worked as a Medical Administrative Officer, GS-12, at the Agency's Community Based Outpatient Clinic (CBOC) in Savannah, Georgia. Petitioner filed a complaint in which he alleged that the Agency discriminated and harassed him on the bases of race (African-American), sex (male), disability, age (52), and reprisal. Petitioner appealed the Agency's final order to the Commission. In EEOC Appeal No. 0120091163, the Commission affirmed the dismissal of three claims and the finding of no discrimination with respect to six claims. However, the Commission did find that the Agency's failure to pay Petitioner at the GS-13 grade level was a violation of the Equal Pay Act (EPA). Consequently, the Agency was ordered to promote the Petitioner to the GS-13 grade level, at the appropriate step, retroactive to April 17, 2005, and award him back pay for the difference between the GS-12 salary he received and the GS-13 salary he should have received.
Specifically, the order with respect to EEOC Appeal No. 0120091163 specified that the Agency must (1) promote Petitioner to the GS-13 grade level; (2) determine the appropriate amount of back pay, with interest, and benefits for the difference between the GS-12 salary he received and the GS-13 salary he should have received; (3) award Petitioner liquidated damages totaling an amount equal to the back pay calculated; (4) issue a final decision on Petitioner's claim for compensatory damages; (5) provide EEO training to responsible management officials; (6) provide a compliance report to the Commission; (7) post a "Notice to Employees" that discrimination had occurred; and (8) pay reasonable attorneys' fees and costs. The matter was assigned to a Compliance Officer and docketed as Compliance No. 0620110215 on January 24, 2011.
Thereafter, on July, 15, 2011, the Agency issued a final decision on Petitioner's claim for compensatory damages, awarding him $1,500 in non-pecuniary losses.1
Also, in a subsequent appeal filed by Petitioner, EEOC Appeal No. 0120112724 (October 17, 2011), the Commission found that the Agency's 90-percent reduction in the requested attorneys' fee award was improper. We modified the Agency's final decision and awarded Petitioner $20,343.10 in attorneys' fees and costs.2
Agency's Final Decision on Petition for Enforcement
The Agency issued an August 1, 2011, final decision, entitled "Petition for Enforcement EEO No. 2001-0534-2007101565." Therein, the Agency found that it had partially failed to comply with the Commission's orders in Appeal No. 0120091163. Specifically, the Agency found that it had failed to fully comply with the Commission's orders regarding the payment of back pay and liquidated damages. With regard to the payment of back pay, the Agency noted that Petitioner was not re-accessed into the current pay system nor was Petitioner's retirement pay stopped. The Agency noted that a remedy ticket was issued on June 23, 2011, to the Defense Finance and Accounting Service (DFAS) to calculate the back pay with interest and make payment. The Agency noted that a second remedy ticket was issued on July 15, 2011, to the DFAS for the calculations and payment to Petitioner's Thrift Savings Plan (TSP). The Agency also noted that responsible management officials involved in the Equal Pay Act violation had retired. 3
Report of Compliance
On or around October 31, 2011, more than eight months after we issued our decision in EEOC Appeal No. 0120091163, the Agency issued a Compliance report to the Commission and Petitioner. Therein, the Agency stated that it had complied with all the orders issued in EEOC Appeal No. 0120091163. In its compliance report the Agency submitted documentation showing that it promoted Petitioner to the GS-13 grade level and posted a "Notice to Employees" that discrimination had occurred. The Agency also submitted a document entitled "Public Voucher" for refunds showing that $48,109.05 in liquidated damages was issued to Petitioner. However, the Agency submitted no decipherable documentation showing that, among other things, it paid Petitioner an equal amount in back pay.
Petition for Enforcement
On November 9, 2011, after receiving the Agency's Compliance report, Petitioner submitted the instant petition for enforcement. In his petition, Petitioner contends that the Compliance report does not show that interest was paid or how the Agency calculated the interest payments. Petitioner also contends that the Compliance report omits his overtime pay of 571 hours between September 18, 2005, and August 16, 2008. Petitioner further contends that the Compliance Report did not address pay for annual leave and sick leave. Petitioner contends that the Agency should have paid him from September 12, 2008, to his actual retirement date of January 2, 2009.
Thereafter, on January 13, 2012, Petitioner submitted another statement to the Commission with respect to his petition for enforcement. Therein, Petitioner contends that the Agency failed to provide the Social Security Administration and the Office of Personnel Management (OPM) a copy of the Compliance Report with corrected W2's, so his retirement and disability pay could be recalculated. Petitioner further contends that the Agency improperly took deductions from his calculated back pay. Complainant subsequently submitted documentation to the Commission, indicating that he received three different payments from the Agency of $48,109.05 (liquidated damages), $17,983.70 (attorney's fees), and $1,500 (compensatory damages).
ANALYSIS AND FINDINGS
Calculation of Back Pay
The purpose of a back pay award is to restore to petitioner the income he would have otherwise earned but for the discrimination. See Albemarle Paper Co. v. Moody, 442 U.S. 405, 418-19 (1975); Davis v. U.S. Postal Serv., EEOC Petition No. 04900010 (Nov. 29, 1990). 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 personnel 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 (Mar. 3, 2005).
The Commission construes "benefits" broadly to include, inter alia, annual leave, sick leave, health insurance, overtime and premium pay, night differentials and retirement contributions. See Vereb v. Dep't of Justice, EEOC Petition No. 04980008 (Feb. 29, 1999). A back pay claimant under Title VII generally has a duty to mitigate damages. The burden is on the agency, however, to establish, by a preponderance of the evidence, that petitioner has failed to mitigate his damages. See 29 C.F.R. � 1614.501(d); McNeil v. U.S. Postal Serv., EEOC Request No. 05960436 (Dec. 9, 1999).
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 (Sep. 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 Klook v. U.S. Postal Serv., EEOC Petition No. 04A40012 (June 16, 2004); Besemer v. U.S. Postal Serv., EEOC Petition No. 04890005 (Dec. 14, 1989). 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 also 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.)
Payment of Back Pay and an Equal Amount in Liquated Damages
In EEOC Appeal No. 0120091163, we ordered the Agency to pay Petitioner back pay and an equal amount in liquidated damages. The Agency, in its Compliance Report, submitted a document entitled, "Public Voucher for Refunds" showing that a payment of $48,109.05 in liquidated damages was issued to Petitioner. However, there is no documentation in the record showing that an equal amount of back pay was paid to Petitioner. As such, Petitioner should have received two payments of $48,109.05 totaling $96,218.10 (back pay plus liquidated damages). The record is unclear whether the Agency paid this amount. We therefore remand this matter to the Agency.
Overtime, Annual Leave and Sick Leave
Here, we find that it is unclear how the Agency calculated much of Petitioner's back pay award. In particular, we find that the record is unclear on whether the Agency factored in overtime, annual leave, and sick leave. As stated above, "benefits" to which a petitioner is entitled with a back pay award include, overtime, annual and sick leave. We note the Agency's compliance report contains untitled spreadsheets from 2005 through 2009, showing pay periods on a bi-weekly basis at which back pay was calculated. These spreadsheets do not mention overtime or annual and sick leave. The Agency further has not responded to Petitioner's petition as to whether overtime, annual leave, and sick leave were considered in Petitioner's back pay award.
The Commission therefore directs the Agency to provide a clear, decipherable explanation as to how it calculated Petitioner's amount of overtime, annual leave, and sick leave hours to reach the back pay award. On remand, the Agency shall identify whether overtime, annual leave, and sick leave hours were included in Petitioner's back pay award.
Interest
Consistent with the order in EEOC Appeal No. 0120091163, Petitioner is entitled to interest on back pay owed. In the order, the Commission directed the Agency to pay interest on back pay in accordance with 29 C.F.R. � 1614.501. The record is unclear whether the Agency paid interest on Petitioner's back pay award. On remand, the Agency shall identify which regulatory or statutory interest formula it used to calculate and pay the Petitioner interest owed.
Recalculation of Petitioner's Retirement Benefits Based on a Higher Salary.
We note that had Petitioner been placed in the GS-13 grade level position absent the Agency's discrimination, his average yearly salary would have been higher, which may have increased his retirement benefits. We will direct the Agency to notify the Office of Personnel Management (OPM) of Petitioner's retroactive pay increase, so that OPM can recalculate Petitioner's pension benefits based on the higher salary.
Thrift Savings Plan (TSP) Contributions
The record does not show that the Agency's back pay award included any contributions to his TSP and the agency has not addressed this issue. Back pay, as noted above, should include all forms of compensation and must reflect fluctuations in working tune, overtime rates, penalty overtime, Sunday premium and night work, changing rates of pay, transfers, promotions, and privileges of employment to which the Petitioner would have been entitled but for the discrimination. Therefore, we find that Petitioner is entitled to increased TSP contributions based on his increased pay during the period in question. The record is unclear whether the Agency increased TSP contributions based on Petitioner's increased pay.
Life Insurance
As with his entitlement to TSP contributions, we note that the Commission construes "benefits" broadly and we find no persuasive argument to deny Petitioner's entitlement, assuming that his insurance policy is still in effect. However, the record contains insufficient information for us to make a determination as to whether the insurance policy is still in effect following Petitioner's retirement, and if so, what the value of such increased contributions should be.
CONCLUSION
Accordingly, we find the Agency has not complied with our orders in EEOC Appeal No. 0120091163 and is directed to do so in accordance with the ORDER below.
ORDER
The Agency is ORDERD to take the following actions:
1) The Agency shall recalculate its back pay award with specificity, including interest, pursuant to 29 C.F.R. � 1614.501, and in accordance with the order set forth in EEOC Appeal No. 0120091163. Petitioner shall cooperate in the Agency's efforts to determine the amount of back pay due, and shall provide all relevant information requested by the Agency. The Agency shall provide Petitioner and the Commission with a full explanation of its back pay calculations, all employment benefits, and interest. As discussed above, this must include detailed documentation regarding the Agency's back pay calculations which should include a clear and concise "plain language" statement of the methods of calculations used; evidence of the actual calculations applying said formulas and methods; and clear calculations of the interest and benefits paid to Petitioner, including TSP payments.
2) The Agency shall determine, with specificity and supporting documentation, what portion of Petitioner's overtime, sick leave, and annual leave were applied to the back pay award.
3) The Agency shall pay interest on all back pay owed in accordance with pertinent OPM Regulations and 29 C.F.R. � 1614.501. The Agency shall identify which regulatory or statutory interest rate formula it used.
4) The Agency shall officially notify OPM of Petitioner's increased salary in the years prior to his retirement.
5) The Agency shall calculate the amount of increased TSP agency-matching contributions Petitioner would have earned due to his increased salary from the beginning of the back pay period to the date of his retirement. The Agency shall contact the Federal Retirement Thrift Investment Board (FRTIB) and ensure that such increased contributions are reflected in Petitioner's TSP.
6) The Agency shall determine the amount of the increased value of petitioner's life insurance policy, assuming such a policy is still in effect and is a Federal Government policy provided by the Agency. If the policy is a private policy, or if the policy expired when Petitioner retired, or for any other reason, then the Agency need not calculate the amount of the increased value of the policy. If the policy is a policy provided by the Agency and is still in effect, the Agency shall correct the policy coverage amount to reflect Petitioner's higher salary during the years in question.
7) The Agency shall provide the Commission with supporting documentation showing that it paid Petitioner the back pay amount and an equal amount in liquidated damages.
The Agency is directed to submit a report of compliance, as provided in the paragraph entitled "Implementation of the Commission's Decision." The report must include evidence that the corrective actions have been implemented. The agency shall send a copy of the report and all its enclosures to the Petitioner.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K1208)
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 Petitioner may petition the Commission for enforcement of the order. 29 C.F.R. � 1614.503(a). The Petitioner 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 Petitioner 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 Petitioner 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.
PETITIONER'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 (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
March 21, 2013
Date
1 Petitioner appealed the Agency's final decision on compensatory damages to the Commission, which has been docketed as Appeal No. 0120113591 and is currently pending before the Commission.
2 On November 29, 2011, Petitioner through his attorney submitted a brief contending that the Agency failed to pay $20,343.10 in attorney's and costs as ordered in Appeal No. 0120112724. However, the record reflects that Petitioner was subsequently paid this amount, as documented in EEOC Compliance No.0620120065.
3 We note that the Agency improperly issued a final decision on Petitioner's petition for enforcement with appeal rights to the OFO. Under 29 C.F.R. � 1614.503(a) a Petitioner may petition the Commission, not the Agency, for enforcement of a final Commission decision issued under its appellate jurisdiction.
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0420120003
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0420120003