DEIRDRA BROWN-FLEMING, PETITIONER,
v.
ERIC H. HOLDER, JR., ATTORNEY GENERAL, DEPARTMENT OF JUSTICE, AGENCY.

Petition No. 
0420080016
Appeal No. 0120045121
Request No. 0520070276
Agency No. 1878145

October 28, 2010

DECISION ON A PETITION FOR ENFORCEMENT

On July 2, 2008, the Equal Employment Opportunity Commission (EEOC or Commission) docketed a petition for enforcement to examine the enforcement of an Order set forth in Deirdra Brown v. Department of Justice. Appeal No. 0120045121 (December 20, 2006); request for reconsideration denied. EEOC Request No. 0520070276 (March 2, 2007). The Commission accepts this petition for enforcement pursuant to 29 C.F.R. § 1614.503

Petitioner filed a complaint in which she alleged that the Agency discriminated against her on the bases of her race (African-American), sex (female), and in reprisal for prior protected EEO activity in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended. 42 U.S.C. § 2000e et seq. Petitioner appealed the Agency's final decision to the Commission, and in Appeal No. 0120045121. The Commission found that the Agency discriminated against Petitioner on the bases of her sex. race, and in reprisal for her prior protected EEO activity when: (1) on April 5, 2002, the Agency denied her request to attend a training conference in France: and (2) by letter dated May 10, 2002, the Agency terminated her employment. By way of relief, the Commission ordered the Agency to reinstate Petitioner to the position of Assistant United States Attorney, remove any references to Petitioners EEO activity and the unlawful termination from her records, pay all back-pay and benefits, approve Petitioner's training request, pay all proven compensatory damages, provide training to all staff at Petitioner's facility, consider taking appropriate disciplinary action against all responsible management officials still employed with the Agency, and post a Notice. Further, the Commission ordered the Agency to provide Petitioner with front pay in the event that she rejected the offer of reinstatement to her prior position.

The matter was assigned to a Compliance Officer and docketed as Compliance No. 0620070154 on December 27, 2006. On July 2, 2008, Petitioner submitted the petition for enforcement at issue. Petitioner contends that the Agency failed to provide her with front pay and that she is entitled to front pay in the amount of $4,660,238.00. Petitioner further contends that the Agency erred in deducting $29.592.69 for contributions to the Thrift Savings Plan (TSP), and $6,306.34 in state taxes, from her back-pay award. Finally, Petitioner contends that she is entitled to a payment of $89,587.63 in order to offset the federal tax liability of the lump sum back-pay award.

In its response, the Agency states that Petitioner is not entitled to front pay because she is medically unable to return to work. The Agency further states that if the Commission finds that Petitioner is entitled to front pay. the award should be limited to a "reasonable period of time" and reduced based upon Petitioner's failure to mitigate her damages. Additionally, the Agency contends that it made all required contributions to Petitioner's TSP account, that the deduction of state and federal taxes was appropriate, and that Petitioner failed to provide the necessary documentation to establish entitlement to a tax liability offset.

Tax Liability
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 to complainants. Van Hoose v. Department of Navy. EEOC Appeal Nos. 01982628 and 01990455 (August 22, 2001): Goetze v. Department of Navy. EEOC Appeal No. 01991530 (August 22, 2001); Holler v. Department of the Navy, EEOC Appeal Nos. 01982627 and 01990407 (August 22, 2001). 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. It is the receipt of the pay in one lump sum that causes the extra tax liability, not the back pay award itself. The Commission has found that a complainant bears the burden to prove the amount to which she claimed entitlement and courts have demanded probative calculations by complainants. See Cottrell v. Department of Transportation, EEOC Petition No. 04A30015 (October 12, 2004).

Here, we find that Petitioner failed to meet her burden of providing probative calculations in support of her entitlement to a tax offset award Petitioner argues that she is entitled to an offset in the amount of $89,587.63, assuming an estimated tax rate of 39%. The record reflects, however, that she has failed to include any probative calculations or documentation to support this claim. We therefore deny Petitioner's petition for enforcement with respect to tax liability.

Distributions for TSP Contributions and State Taxes
The Commission has held that an award of back pay requires the agency to make retroactive tax-deferred contributions to complainant's TSP account during the back pay period. Howgate v. United States Postal Service. EEOC Petition No. 04990031 (February 4, 2000) (citing Fiene v. United States Postal Service. EEOC Petition No. 04920009 (September 3, 1992)). The Commission has also held that, to the extent an employee would have received government contributions to a retirement fund as a component of salary, the employee is entitled to have retirement benefits adjusted as part of the back pay award, including receiving the earnings which the account would have accrued during the relevant period. Id. (citing Robinson v. Department of the Treasury, EEOC Petition No. 04980006 (July 2, 1998): Lee v. Department of the Army, EEOC Petition No. 04980020 (October 1, 1998); Korchnak v. United States Postal Service, EEOC Petition No. 04960028 (December 19, 1996) (petitioner who was terminated before becoming eligible for TSP entitled to enrollment in the program); Wrigley v. United States Postal Service, EEOC Petition No. 04950005 (February 15, 1996).

Here, we find that the record contains sufficient documentation to show that the Agency has made the appropriate contributions on behalf of Petitioner. The record reflects that at the time of her termination. Petitioner was making a voluntary 5% contribution to her TSP account. Additionally. Petitioner was entitled to a 1% automatic contribution from the Agency as well as a matching contribution of 5% and all interest that would have been earned daring the relevant period. The record shows that on September 7, 2007, the Agency made all appropriate contributions to Petitioner's TSP account, covering the period May 30, 2002, through May 24, 2007. As such, we deny Petitioner's petition for enforcement with respect to her TSP contributions.

With regard to the deduction of $6,306.34 in state taxes. Petitioner is advised that a backpay award is considered "wages" from which all Federal and state taxes are required to be withheld. Williams v. United States Postal Service, EEOC Appeal No. 01933156 (May 4, 1994).

Front Pay
Front pay is a form of equitable relief that compensates an individual when reinstatement is not possible in certain limited circumstances. The Commission has identified three circumstances where front pay may be awarded in lieu of reinstatement, i.e., (1) where no position is available: (2) where a subsequent working relationship between the parties would be antagonistic: or (3) where the employer has a record of long-term resistance to anti-discrimination efforts. See Tyler v. U.S. Postal Service, EEOC Request No. 05970340 (February 1, 1998). In order for an individual to be eligible for an award of front pay, they must be available to work. See Finlay v. U.S. Postal Service, EEOC Appeal No. 01942985 (April 30, 1997); York v. Department of the Navy, EEOC Appeal No. 01930435 (February 25, 1994).

In the instant case, the Agency argues that Petitioner is not entitled to front pay because she is medically unavailable for work. Specifically, the Agency points to Petitioner's response to the offer of reinstatement, dated May 7, 2007, in which she states that after consultation with psychotherapists and vocational rehabilitation experts, she has decided that placement back into "the same hostile work environment in which she was retaliated against...would be harmful" to her. Agency's Response to Petition for Enforcement, Exhibit 2. We find, however, that the evidence of record does not support the Agency's conclusion. The psychiatric report provided by Petitioner, dated June 15, 2007, states that Petitioner is able to return to work as an Assistant United States Attorney, although not at the same location where the discriminatory conduct occurred. Petition for Enforcement, Exhibit C. Accordingly, we find that, contrary to the Agency's assertions. Petitioner is entitled to an award of front pay.

Next, we must determine the duration of the front pay award to which she is entitled. Courts have stated that "[f]ront pay has been defined as an affirmative order designed to compensate the plaintiff for economic losses that have not occurred as of the date of the court decree, but that may occur as the plaintiff works toward his or her rightful place."Shore v. Fed. Exp. Corp., 777 F.2d 1155, 1158 (6th Cir. 1985). The Courts have been given discretion in selecting a cut-off date for an equitable front pay remedy subject to the limitation that front pay only be awarded "for a reasonable future period required for the victim to reestablish her rightful place in the job market."Goss v. Exxon Office System Co., 747 F.2d 885, 890 (3d Cir. 1984).

Here, we find that a duration of two years is appropriate. Petitioner contends that she is entitled to a front pay award of $4,660,238.00, based on a calculation of her future economic loss and assuming a retirement age of 65. We find that such an award would be unduly speculative and would constitute a windfall for Petitioner as front pay is intended only to "bridge a time when the court concludes the plaintiff is reasonably likely to obtain other employment."Duke v. Uniroval Inc., 928 F.2d 1413, 1424 (4th Cir. 1991). Here, the record reflects that Petitioner is medically available for work and, as such, we do not find that Petitioner is entitled to front pay until retirement. In so finding, we note that the Courts have found that damages are inappropriate where they "would catapult [the plaintiff] into a better position than they would have enjoyed in the absence of discrimination."Ford Motor Co. v EEOC, 458 U.S. 219, 234 (1982). After a thorough review of the record, we grant Petitioner's petition for enforcement with respect to front pay. and we direct the Agency to comply with the Order below.

ORDER

Within thirty (30) days of the date this decision become final, the Agency is ordered to calculate the amount of front pay due Petitioner for a period of two years beginning May 7, 2007, and pay that amount to Petitioner. Additionally, the Agency shall provide to the Commission evidence that Petitioner was issued payment of the calculated front pay.

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. §§ 1614407 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.

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 (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 he 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