Rosemarie G.,1 Complainant,v.John F. Kelly, Secretary, Department of Homeland Security (Transportation Security Administration), Agency.

Equal Employment Opportunity Commission

Apr 5, 2017

0120150094 (E.E.O.C. Apr. 5, 2017)

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

Rosemarie G.,1
Complainant,

v.

John F. Kelly,
Secretary,
Department of Homeland Security
(Transportation Security Administration),
Agency.

Appeal No. 0120150094

Hearing No. 100-2005-00689X

Agency No. HS-TSA-01076-2004

DECISION

Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s August
19, 2014, decision regarding Complainant’s claim of non-compliance with its previous final
order. See 29 C.F.R. § 1614.504(a); and 29 C.F.R. § 1614.405. For the following reasons,
the Commission AFFIRMS the Agency’s final order.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Security Assistant
at the Agency’s Federal Air Marshals Service in Mays Landing, New Jersey.

On November 10, 2004, Complainant filed an EEO complaint wherein she claimed that the
Agency discriminated against her on the bases of her disability (severe degenerative joint
disease) and in reprisal for her prior protected EEO activity under the Rehabilitation Act when
management limited her job functions and her training, she was denied a promotion, and her
request to telework as a reasonable accommodation was denied.

1 This case has been randomly assigned a pseudonym which will replace Complainant’s name
when the decision is published to non-parties and the Commission’s website.

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At the conclusion of the investigation, the Agency provided Complainant with a copy of the
report of investigation and notice of her right to request a hearing before an Equal Employment
Opportunity Commission Administrative Judge (AJ). Complainant timely requested a hearing.
The AJ held a hearing on July 6, 2006, and August 11, 2006, and issued a decision on January
27, 2010.

The AJ found that the Agency discriminated against Complainant when it failed to provide her
a reasonable accommodation and denied her telework request, which resulted in her not
receiving a promotion; denied her training in time and attendance functions; and did not permit
her to perform time and attendance duties. Among other items, the AJ ordered the Agency to
provide the following remedies to Complainant:

1. Amending her records to reflect that she worked five days per week throughout her
employment.

2. Restoring all leave taken for the two days per week she was at home rather than at
work, from July 2003 until her removal. Leave shall not be restored for the periods
of time Complainant was out sick (e.g., those days in September/October 2003
when Complainant was undergoing and recuperating from her cardiac
catheterization).

3. Promoting her to the next level, retroactive to May 2004. Complainant’s records
shall be amended to reflect that promotion. Back pay shall be calculated in
accordance with the Back Pay Act.

The Agency subsequently issued a final order wherein it adopted the AJ’s finding of
discrimination and agreed to implement the ordered relief.

Thereafter, Complainant filed an appeal with the Commission. Complainant claimed that she
was not fully credited for her back pay from July 2003 to February 2005 and that the Agency
had not factored in her promotion in 2004. Complainant argued that the documentation
submitted by the Agency concerning the leave she was entitled to was incomprehensible and
did not cover the entire period. Further, Complainant maintained that the Agency, with regard
to her Thrift Savings Plan adjustments, failed to provide documentation to establish that it
complied with any monetary adjustments for breakage and that Complainant should have been
permitted to provide catch-up contributions.

In our previous decision, Complainant v. Department of Homeland Security, EEOC Appeal
No. 0120111080 (August 9, 2013), the Commission found that the Agency did not establish
that it complied with its March 12, 2010, final order and the AJ’s ordered relief. The
Commission ordered the Agency to comply with the following provisions (in relevant part):

1. Provide Complainant with a detailed statement of the Agency’s calculations and
payments with regard to her back pay for the period of June 2003 to February 5,
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2005. The Agency shall clearly indicate when the reimbursement is increased due
to Complainant’s promotion in 2004 or clearly explain why it is not required to do
so.

2. Provide Complainant with a detailed statement of the Agency’s calculations
regarding Complainant’s leave from the period of June 2003 to February 5, 2005.
The Agency shall clearly indicate the days it is restoring to Complainant per the
AJ’s order.

3. Provide Complainant with a detailed statement of the Agency’s calculations and
payments made on Complainant’s TSP account. Specifically, the Agency shall
clearly explain how it derived its calculations for all Agency TSP contributions and
for lost earnings on Complainant’s TSP account. Moreover, the Agency shall
clearly document all deductions made from Complainant’s back pay award
consisting of employee TSP contributions, specifically indicating how it calculated
these amounts. The Agency shall provide evidence showing whether it has
reimbursed the lost earnings to Complainant’s account. The Agency shall then issue
a new final decision indicating whether it has complied with corrective action and
that provides appeal rights to the Commission.

The Agency subsequently issued a final order wherein it determined that it complied with the
terms of the Commission’s Order. The Agency stated that in response to the Commission’s
Order, on September 30, 2013, it provided Complainant with a breakdown of its initial
$36,038.33 disbursement to her for the period of June 2003 to February 5, 2005. The Agency
explained that the disbursement included a gross back pay calculation of $26,727.37,
$11,232.21 in interest and a $4,409.34 lump sum annual leave pay. The Agency stated that it
subtracted from the calculation $3,206.54 in federal taxes, $493.00 in state taxes, $1,930.48 in
Social Security contributions, $451.48 in Medicare contributions and $249.09 in retirement
contributions.

According to the Agency, it also provided Complainant with an Excel spreadsheet documenting
a supplemental disbursement issued to her on March 4, 2011, which reflected the difference
owed to Complainant after a corrected back pay calculation of $27,561.00, adjusted interest
calculations, and adjustments made to her TSP account. The Agency stated that it also
provided Complainant with an Excel spreadsheet that showed the back pay calculations
included a retroactive promotion to the F-band in pay period ten of 2004.

With regard to the calculation of Complainant’s leave, the Agency stated that it provided
Complainant with a leave audit for fiscal years 2003 through 2005, which reflected its
retroactive award of 160 hours of sick leave distributed in four hour allotments per pay period,
beginning in pay period fifteen of 2003 and ending in pay period two of 2005. As for the
payments regarding Complainant’s TSP account, the Agency asserted that it provided
Complainant with a TSP calculations spreadsheet that reflected retroactive payments and
adjustments to Complainant’s TSP account effective from December 24, 2003, to March 31,
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2005. The Agency stated that in an email from Complainant to the Agency dated October 31,
2013, Complainant acknowledged that the Agency provided all of the required documentation
to support its back pay and leave calculations. The Agency subsequently issued its decision
finding that it had complied with the Commission’s decision in EEOC Appeal No.
0120111080. Thereafter, Complainant filed the instant appeal with the Commission.

CONTENTIONS ON APPEAL

Complainant did not file any statement or brief in support of her appeal which would indicate a
basis for her disagreement with the Agency’s decision, despite having the time frame to do so
extended by the Commission.

In response to Complainant’s appeal, the Agency asserts that it fully implemented the terms of
the Commission’s order as it provided full documentation of its compliance to Complainant.
The Agency notes that Complainant was also provided with a third disbursement on February
11, 2011, for $908.85. The Agency states that the chart it provided referencing retroactive
TSP contributions to Complainant’s account reflected increases due to Complainant’s
retroactive promotion. According to the Agency, in Complainant’s October 31, 2013, email,
Complainant stated that the documents provided to her were sufficient, but that she was
awaiting the correction of a SF-50 concerning her removal before she would be completely
satisfied with the Agency’s compliance. The Agency states that on November 5, 2013, it
informed Complainant that it would not change her SF-50 because neither the Commission’s
Order nor any settlement agreement required it to make such a change and such action would
not be appropriate.

ANALYSIS AND FINDINGS

Initially, we shall address Complainant’s contention concerning her SF-50. In an e-mail dated
November 5, 2013, from an Agency attorney to Complainant, Agency counsel notes that the
instant complaint did not involve Complainant’s removal. The Agency attorney states that the
AJ never ordered a change or alteration of the SF-50. Moreover, the Agency attorney points
out that in the District Court action Complainant filed concerning her removal, the settlement
agreement entered into between the parties did not provide for an alteration or change in the
SF-50. Agency counsel further points out that its Human Resources department is unwilling to
expunge or change the SF-50 because there is no document or court order stating that an
expungement or change is to occur. We find that the status of the SF-50 was not addressed in
the Commission’s Order or by the AJ and thus is not relevant as to whether the Agency
complied with the Commission’s Order.

Upon review of the documentation that was provided by the Agency to Complainant
subsequent to the Commission’s Order in EEOC Appeal No. 0120111080, we observe that the
material includes a detailed breakdown of the calculations and payments of back pay, leave
calculations, and the calculations and payments made on Complainant’s TSP account. We note
that Complainant indicated in her email of October 31, 2013, to the Agency her belief that the
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Agency had complied with these aspects of the Commission’s Order. Complainant stated that
the only issue that had not yet been addressed was the removal or correction of the SF-50
which stated that she was released due to her inability to perform the duties of her position.
Complainant asserted that once this was corrected, she would be completely satisfied that the
Agency was in full compliance with the Order. Given that the Agency’s documentation with
regard to the Commission’s Order appears complete and Complainant has expressed no
disagreement with such documentation, we find that the Agency has complied with the
Commission’s Order, and demonstrated its compliance with the Order issued by the AJ
pursuant to his finding of discrimination.

CONCLUSION

The Agency’s determination that it complied with the Commission’s Order of August 9, 2013,
is AFFIRMED.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0416)

The Commission may, in its discretion, reconsider the decision in this case if the Complainant
or the Agency submits a written request containing arguments or evidence which tend to
establish that:
1. The appellate decision involved a clearly erroneous interpretation of material
fact or law; or
2. The appellate decision will have a substantial impact on the policies, practices,
or operations of the Agency.
Requests to reconsider, with supporting statement or brief, must be filed with the Office of
Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision or within
twenty (20) calendar days of receipt of another party’s timely request for reconsideration. See
29 C.F.R. § 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R.
Part 1614 (EEO MD-110), at Chap. 9 § VII.B (Aug. 5, 2015). All requests and arguments
must be submitted to the Director, Office of Federal Operations, Equal Employment
Opportunity Commission. The requests may be submitted via regular mail to P.O. Box 77960,
Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. In
the absence of a legible postmark, the request to reconsider shall be deemed timely filed if it is
received by mail within five days of the expiration of the applicable filing period. See 29
C.F.R. § 1614.604. The request or opposition must also include proof of service on the other
party.

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Failure to file within the time period will result in dismissal of your request for reconsideration
as untimely, unless extenuating circumstances prevented the timely filing of the request. Any
supporting documentation must be submitted with your request for reconsideration. The
Commission will consider requests for reconsideration filed after the deadline only in very
limited circumstances. See 29 C.F.R. § 1614.604(c).

COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (S0610)

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. 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

April 5, 2017
Date