Roderick P,1 Petitioner,v.Ryan Zinke, Secretary, Department of the Interior (Minerals Management Service), Agency.

Equal Employment Opportunity CommissionApr 11, 2017

0420150011 (E.E.O.C. Apr. 11, 2017)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Roderick P,1 Petitioner, v. Ryan Zinke, Secretary, Department of the Interior (Minerals Management Service), Agency. Petition No. 0420150011 Appeal No. 0120131556 Agency No. MMS-09-0493 DECISION ON A PETITION FOR ENFORCEMENT On July 9, 2015, the Equal Employment Opportunity Commission (EEOC or Commission) docketed a petition for enforcement to examine the enforcement of an Order set forth in EEOC Appeal No. 0120131556 (October 9, 2014). The Commission accepts this petition for enforcement pursuant to 29 C.F.R. § 1614.503. Petitioner alleges that the Agency failed to fully comply with the Commission’s Order. BACKGROUND At the time of events giving rise to this complaint, Petitioner worked as an Auditor at the Agency’s facility in Denver, Colorado. Petitioner filed a complaint in which he alleged that the Agency discriminated against him on the basis of his disability (diabetes) and in reprisal for prior protected EEO activity in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. After a hearing, the Equal Employment Opportunity Commission Administrative Judge (AJ) assigned to the matter found discrimination on the bases of disability and reprisal. By way of remedies, the AJ ordered the Agency to provide Petitioner with back pay, compensatory 1 This case has been randomly assigned a pseudonym which will replace Petitioner’s name when the decision is published to non-parties and the Commission’s website. 0420150011 2 damages, and attorney’s fees. The AJ did not, however, order the Agency to reinstate Petitioner or to provide Petitioner with front pay. The Agency’s final order adopted the AJ’s decision and fully implemented the remedies ordered by the AJ. Petitioner subsequently appealed the Agency’s final order and requested that the Commission order the Agency to reinstate him to the position from which he was terminated or to provide him with front pay. In our decision on appeal, the Commission found that the AJ erred in failing to order the Agency to reinstate Petitioner to the position he held at the time he was terminated, subject to the successful completion of his probationary period. We also found, however, that the circumstances of the instant case did not meet the criteria for an award of front pay. As such, we modified Agency’s final order and directed the Agency to: (1) offer Petitioner the position of Auditor or a substantially equivalent position; (2) pay Petitioner appropriate back pay and benefits; (3) pay Petitioner $120,152.48 in compensatory damages, of which $75,000.00 represents nonpecuniary damages; (4) pay Petitioner’s counsel $73,483.00 in attorney’s fees and $574.86 in costs, with an additional $376.33 in costs paid to Petitioner; (5) consider taking disciplinary action against the responsible management officials; (6) provide training to all management officials; and (7) post a Notice of the finding of discrimination. In its report to the Compliance Officer of the Commission dated April 21, 2015, the Agency asserted that it complied with the Order. Specifically, the Agency stated that it: (1) provided Petitioner with an offer of reinstatement to the position of Auditor, GS-511-12, dated January 22, 2015; (2) issued a letter of reprimand to the responsible management official, dated November 20, 2014; (3) provided Petitioner with $209,726.53 in back pay that resulted in $94,867.49 after deductions; (4) paid Petitioner interest in the amount of $15,053.30; (5) provided Petitioner with a lump sum payment of $18,542.02 for annual leave; (6) paid Petitioner $120,528.81 in compensatory damages; (7) provided Petitioner with attorney’s fees payments of $14,607.31 and $74,057.86; (8) provided mandatory EEO training to managers and supervisors; and (9) posted a notice of the finding of discrimination. On June 10, 2015, Petitioner submitted the petition for enforcement at issue. Petitioner contends that the Agency has not complied with a portion of the remedies ordered in EEOC Appeal No. 0120131556. Specifically, Petitioner states that the Agency failed to reimburse him for medical expenses incurred from the date of the hearing through the date of his reinstatement. Petitioner also states that the Agency placed his Thrift Savings Plan (TSP) contributions into the wrong fund and that he is entitled to a tax penalty offset as the result of his lump-sum back pay award. ANALYSIS AND FINDINGS Medical Expenses In our decision on appeal, the Commission ordered the Agency to pay Petitioner $120,152.48 in compensatory damages. The record shows that the Agency provided payment to Petitioner on March 7, 2013. Our decision does not state that Petitioner is entitled to any additional 0420150011 3 medical expenses beyond those specifically addressed in the Order. Upon review of the record and the submissions by the Agency, we find that the Agency has complied with our Order regarding compensatory damages and that Petitioner is not entitled to any additional damage award. TSP Contribution “Make whole” relief regarding TSP contributions requires the Agency to make retroactive tax- deferred contributions to Petitioner’s TSP account during the back pay period. Gwendolyn G. v. U.S. Postal Service, EEOC Appeal No. 0120080613 (Dec. 23, 2013) (citing Complainant v. Dept. of Agriculture, EEOC Petition No. 04A10042 (June 18, 2001)). The Commission has also held that, to the extent an employee would have received government contributions to a retirement fund as a component of his salary, he is entitled to have his retirement benefits adjusted as part of his back pay award, including receiving earnings which the account would have accrued during the relevant period. Petitioner contends on appeal that the Agency failed to comply with our Order in EEOC Appeal No. 0120131556 when it allocated his TSP contributions to the “G” fund and not the “C” fund which he contends was a higher performing fund. The “G” is considered a “no risk” fund, while the “C” fund has some risk. Upon review, we find that our previous Order was silent as to which fund Petitioner’s TSP contributions were to be placed into and, therefore, we find that the Agency fully complied with our previous Order with respect to its calculation of Petitioner’s TSP contributions (by using the no risk fund). Increased Tax Liability Petitioner maintains that the Agency has not paid him for increased tax liability incurred because of the lump sum back pay award. The Commission has held that, under both legal and equitable theories, an award to cover additional tax liability from a lump sum payment of back pay is available. See Simon V. v. United States Postal Serv., EEOC Appeal Nos. 0120141013 and 020142516 (Feb. 9, 2017) (citation omitted). In the case of a lump sum back pay award, individuals are compensated for the extra tax they are required to pay as a result of receiving a lump sum award, as opposed to the actual amount they would have had to pay if they had received the pay over a period of time, usually several years. Id. It is the receipt of the pay in one lump sum that causes the extra tax liability, not the back pay award itself. Id. The Commission has found that a Petitioner bears the burden to prove the amount to which she claims entitlement. Id. (citations omitted). Upon review, we note that the record indicates that Petitioner has received a lump sum back pay award. Further, the Agency has provided no evidence to show that Petitioner has been compensated for any increased tax liability incurred. As such, we find that Petitioner is entitled to demonstrate that he has incurred increased tax liability because of the lump sum back pay award. Therefore, this matter must be remanded to the Agency for such a determination. It is Petitioner's burden to establish the amount of increased tax liability, if any. 0420150011 4 CONCLUSION The petition for enforcement regarding tax liability is GRANTED. This matter is REMANDED to the Agency to take action in accordance with this decision and the ORDER herein. ORDER Within 30 days of the date this decision is issued, the Agency is ordered to request that Petitioner submit his claim for compensation for all additional federal and state income tax liability. The Agency shall afford Petitioner 60 days to submit his claim and supporting documents. The burden of proof to establish the amount of additional tax liability, if any, is on Petitioner. The calculation of additional tax liability must be based on the taxes Petitioner would have paid had he received the back pay in the form of regular salary during the back pay period, versus the additional taxes he paid due to receiving the back pay in the form of a lump sum award. Thereafter and no later than 180 days after the date this decision issued, the Agency shall issue a decision on this possible additional tax liability matter. Any amount of proven additional tax liability shall be paid to Complainant no later than 180 days after the date this decision is issued. The Agency shall provide a copy of its final decision, and proof of payment, to the Compliance Officer as referenced herein. The Agency is further directed to submit a report of compliance, as provided in the statement entitled “implementation of the Commission’s Decision.” The report shall include supporting documentation verifying that all of the corrective action has been implemented. IMPLEMENTATION OF THE COMMISSION’S DECISION (K0610) Compliance with the Commission’s corrective action is mandatory. The Agency shall submit its compliance report within thirty (30) calendar days of the completion of all ordered corrective action. The report shall be submitted to the Compliance Officer, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. The Agency’s report must contain supporting documentation, and the Agency must send a copy of all submissions to the complainant. If the Agency does not comply with the Commission’s order, the complainant may petition the Commission for enforcement of the order. 29 C.F.R. § 1614.503(a). The complainant also has the right to file a civil action to enforce compliance with the Commission’s order prior to or following an administrative petition for enforcement. See 29 C.F.R. §§ 1614.407, 1614.408, and 29 C.F.R. § 1614.503(g). Alternatively, the complainant has the right to file a civil action on the underlying complaint in accordance with the paragraph below entitled “Right to File a Civil Action.” 29 C.F.R. §§ 1614.407 and 1614.408. A civil action for enforcement or a civil action on the underlying complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c) 0420150011 5 (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. 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. 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 April 11, 2017 Date