U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Darlene F.,1 Petitioner, v. Carolyn W. Colvin, Acting Commissioner, Social Security Administration, Agency. Petition No. 0420140010 Appeal No. 0720050055 Agency No. 00-0187-SSA Hearing No. 160-A0-8683X DECISION ON A PETITION FOR ENFORCEMENT On January 29, 2014, the Equal Employment Opportunity Commission (EEOC or Commission) docketed a petition for enforcement to examine the enforcement of an Order set forth in Appeal No. 0720050055 (December 24, 2009). The Commission accepts this petition for enforcement pursuant to 29 C.F.R. § 1614.503. BACKGROUND At the time of events giving rise to this complaint, Petitioner worked as an Attorney-Advisor at the Agency's Manchester, New Hampshire office. Petitioner filed a complaint in which she alleged that the Agency discriminated against her on the bases of sex (female), disability, age (51 years old), and in reprisal for previous 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., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. Specifically, Petitioner alleged that the Agency subjected her to unlawful discrimination when: 1. In June 1998, Petitioner was not selected for a detail to a Senior Attorney, GS-13, position; 2. In October 1998, Petitioner was not selected for a detail to a Senior Attorney, GS-13, position; 3. In October 1999, Petitioner was not selected for a Senior Attorney, GS-13, position; and 4. In January 2000, Petitioner was not selected for a Supervisory Attorney-Advisor, GS-13, position. AJs' Decisions On March 29, 2001, an Equal Employment Opportunity Commission (EEOC) Administrative Judge (AJ1) issued default judgment in favor of Petitioner because the Agency failed to adequately develop the factual record prior to the scheduled hearing, failed to respond to Petitioner's request for admissions and discovery requests, failed to comply with AJ1's order to produce 30 witnesses for depositions, and failed to timely respond to AJ1's show cause order. AJ1 ordered the Agency to place Petitioner in the subject positions, to correct leave records, and to pay Petitioner compensatory damages, back pay, and attorney's fees. On January 27, 2005, another AJ (AJ2) issued a decision on remedies that found that Petitioner was entitled to $60,000 in compensatory damages and $29,026.30 in attorney's fees. The Agency issued a final order rejecting both AJ1's default judgment in favor of Petitioner, as well as AJ2's award of damages. The Agency appealed the AJs' decisions to the Commission, and in our appellate decision, the Commission found that AJ1's default judgment in favor of Petitioner was appropriate and not an abuse of discretion. EEOC Appeal No. 0720050055 (Dec. 24, 2009). The Commission's Orders The Commission also affirmed AJ2's findings with respect to remedies. Consequently, the Commission ordered the Agency to place Petitioner in the following temporary positions: the GS-905-13 Attorney Advisor position for the 120-day detail running from July 1, 1998, through October 28, 1998; the GS-905-13 Attorney Advisor position for the detail commencing on October 29, 1998; and the GS-905-13 Attorney Advisor position for the 120-day detail running from October 16, 1999, through December 31, 1999. The Commission further ordered the Agency to promote Petitioner to GS-905-13 Senior Attorney-Advisor effective January 30, 2000, and to pay her back pay with interest and other benefits for the time she would have spent in the temporary GS-13 positions, as well as for her January 30, 2000, placement into the permanent GS-13 Attorney-Advisor position. The Commission also ordered the Agency to determine the amount of leave taken by Petitioner as a consequence of its discrimination and to restore that leave to Petitioner's leave balances. Additionally, the Commission ordered the Agency to pay Petitioner $60,000 in non-pecuniary damages and $29,026.30 in attorney's fees and costs. Finally, the Commission ordered the Agency to correct Petitioner's leave record to reflect official time for preparation for and appearance at depositions; to review and correct Petitioner's leave records to reflect appropriate "hazard leave" during a winter storm; and to post a notice of the finding of discrimination. The matter was assigned to a Compliance Officer and docketed as Compliance No. 0620100186 on December 28, 2009. On January 29, 2014, Petitioner submitted the petition for enforcement at issue. Petitioner's Arguments Petitioner contends that the Agency failed to provide her with all the data she and her attorney requested to verify its compliance with the Commission's orders, which made it "difficult, if not impossible" to verify the accuracy of the Agency's calculations. Petitioner asserts that, even if the Agency correctly calculated her back pay, interest, and other attendant benefits, the Agency did not provide her with sufficient information to determine whether its calculations are correct. Petitioner maintains that the Agency has incorrectly used September 16, 2002, as the cut-off date for its leave restoration calculations. Petitioner notes that the Agency concedes that 1,531 hours of LWOP were more than likely because of discrimination up to September 16, 2002, but instead of paying Petitioner for these hours, the Agency converted them to administrative leave. Petitioner maintains that she was placed in continuing LWOP status for over a year after she experienced discrimination in this case, and because she was placed in LWOP status for an extended period of time, she lost regular pay, holiday pay, overtime pay, additional earned annual and sick leave, and Thrift Savings Plan (TSP) contributions. Petitioner maintains that the Agency's report shows restoration of only 76.75 hours of sick leave and 112.45 hours of annual leave related to the LWOP. Petitioner further maintains that the Agency did not provide information showing how it arrived at its leave-reimbursement calculations. Petitioner contends that the Agency still owes her reimbursement of 1,018.30 hours of LWOP; 712.30 hours of sick leave; 220 hours of advanced sick leave; 868 hours of annual leave; 73 hours for credit hours; 64 hours of holiday pay; 71.25 hours for AWOL charges; and 405 hours of overtime. Further, Petitioner maintains that the Agency did not provide her with an explanation of how it determined her back pay and interest awards. Petitioner also maintains that the interest on the net back award should be compounded on a daily basis using the official U.S. Treasury annual percentage rate for each respective year, but the limited data she received from the Agency shows that the Agency failed to calculate interest on the back pay award with the proper method. Petitioner also maintains that the Agency's report of compliance did not contain any data on how its three TSP contributions were made or what amounts were made for what periods; provides no foregone interest on those contributions; does not provide for lost earnings; and provides no reimbursement of retirement contributions or data on foregone interest on those contributions. Petitioner further maintains that the Agency has not paid her for within-grade increases (WIGI) and interest for several periods of time. Petitioner also asserts that in 2010, the Agency took Medicare, OASDI, and income taxes out of both the back pay and the interest for all of the years of the back pay period, which was withheld at a higher tax rate than she should have been taxed. Petitioner contends that the Agency has not compensated her for the increased tax liability she incurred because of the lump sum back pay awards, the additional interest on the back pay awards, and the tax-deferred income from the TSP. She also contends that the Agency should compensate her for the increased tax liability she incurred because of the $60,000 compensatory damages award. ANALYSIS AND FINDINGS Upon review of this matter, we note that, after Petitioner petitioned for enforcement of our orders, the Agency submitted additional documentation addressing its compliance. As such, our review of the Agency's compliance takes into consideration the totality of the evidence submitted, instead of only the evidence available to Petitioner when she filed her petition for enforcement. Additionally, we restrict our review to matters raised by Petitioner in her petition. As an initial matter, we take notice that Petitioner filed a grievance regarding her March 2000 nonselection for a GS-13 Senior Attorney-Advisor position. On July 25, 2002, an arbitrator found that the Agency violated the national agreement and retaliated against Petitioner because of union activity when it did not promote her to the position. The arbitrator ordered the Agency to place Petitioner in a GS-13 Senior Attorney-Advisor position effective March 2000, and to pay all lost wages and benefits attributable to the nonselection. However, in light of the Commission's order to place Petitioner in a GS-13 Senior Attorney-Advisor position, the Agency retroactively promoted Petitioner to the position effective January 30, 2000. Further, we note that Petitioner maintains that the Commission's December 2009 decision inadvertently ordered the Agency to place her into a GS-13 Senior Attorney-Advisor position, instead of the correct Supervisory Attorney-Advisor position. We note that neither Petitioner nor the Agency requested reconsideration of our previous decision, which contained that order. Therefore, we find that Petitioner cannot now belatedly challenge the terms of the orders in our December 2009 decision. Leave Restoration The Commission ordered the Agency to determine the leave taken by Petitioner as a consequence of the discrimination and to restore that leave to Petitioner's leave balance. The Agency restored 1,531 hours of LWOP taken by Petitioner from the date she was first not selected for a Senior Attorney-Advisor detail (July 1998) until the date the Agency retroactively promoted her to a Senior Attorney-Advisor position (September 16, 2002, the date of the arbitration award). The Agency did not convert 780.30 hours of annual leave or 705.30 hours of sick leave taken by Petitioner during the period, although Petitioner maintained that she used a significant amount of annual and sick leave during the period because of the discrimination experienced in this case. Petitioner also maintained that she was placed on LWOP for over a year after she exhausted her sick and annual leave. Petitioner does not contest the July 1998 start date for calculating leave restoration; rather, she contends that the leave restoration period should extend to December 31, 2003. In a statement dated July 24, 2012, Petitioner generally identified periods of time during which she took leave because of the discrimination at issue in her EEO complaint. In a letter dated February 5, 2013, the Agency asked Petitioner to provide evidence linking any applicable leave with Agency discrimination within 20 days of receipt of the letter. On or about February 28, 2013, Petitioner submitted a declaration in which she stated that from 1998 until 2003, she had taken 780.15 hours of sick leave, 980.45 hours of annual leave, 73 credit hours, and 2,549.30 hours of LWOP. However, Petitioner stated only that LWOP and AWOL taken from January 2001 until December 2003 was attributable to the discrimination at issue in this case, and "all of the sick leave, advanced sick leave, annual leave, and credit hours from January 2001-December 2003 were due to sickness," except where Petitioner otherwise noted. Petitioner further stated that she had a "breakdown" in January 2001 for which she usually used annual leave and credit hours so that management would not know that she was "psychologically sick." However, Petitioner also stated that she could not remember the dates and had no records regarding her leave for this matter. Petitioner stated that she recalled 64 hours of sick leave in year 2000 pay period 13 (2000 PP-13) because of "stress and adrenal exhaustion." Petitioner stated that, from 1998 until 2000, she took the following sick leave: 6 hours for dental appointments; 12 hours for dermatologist appointments, 4 hours for a mammogram, and 10.5 hours for counseling. Petitioner also stated that she took annual leave in the following manner: vacations in 2001 and 2003 (72 hours), and use or lose in 1998 and 1999 (64 hours). Petitioner further stated that from 1998 to 2003, she took off work days around holidays, which accounts for 144 hours of her annual leave during that period. Petitioner detailed that from 1998 until 2003, she took 24 hours of annual leave because of snowstorms. Petitioner further stated that 64 hours of holiday pay was lost because she was in AWOL status in 2001 and 2002, beginning with New Years 2001 and culminating with Memorial Day 2002. Petitioner also asked to be reimbursed for 220 hours of advanced sick leave that began in 2001 PP-14; 0.30 hours of hazard leave; and 472 hours of overtime for which she was not fully paid from 1998 until 2003. The Agency contends that it calculated leave restoration from July 1998 until September 16, 2002, because the latter date was when Petitioner was actually placed into a permanent GS-13 Senior Attorney-Advisor position through an arbitration decision. The Agency contends that it chose the date on which she was actually placed into the position as the cutoff date for restoring leave because Petitioner did not submit any documentation to support her claim for leave restoration beyond September 16, 2002. Upon review, we note that Petitioner claims that she used discrimination-related leave until December 2003. Petitioner contends that her claim for leave restoration until December 2003 is supported by her physician's 2001 statement that she was diagnosed with Major Depression and Post-Traumatic Stress Disorder (PTSD), and by Petitioner's affidavit in which she stated that the nonselections cumulatively worsened her depression, eczema, and anxiety. Petitioner maintains that she reconstructed her leave usage "to the best of her ability using pay stubs in her possession," but she could not be more precise because the Agency failed to preserve and maintain the appropriate pay and leave records. Upon review, we determine that Petitioner's statements and documentation are insufficient to establish her entitlement to leave restoration beyond September 16, 2002. While much of the documentation cited by Petitioner substantiates her compensatory damages award because it reflects that she suffered emotional distress and health conditions because of the discrimination, it does not establish that she needed to take leave on particular dates after September 16, 2002. Petitioner's diagnoses of eczema, anxiety, stress, PTSD, and depression do not explain why Petitioner took leave on particular dates. Further, although a February 21, 2003, letter from Petitioner's physician stated that she was diagnosed with Depression and PTSD because management told her that she was performing poorly at her job and was denied reasonable accommodations for her disabilities, the physician did not link Petitioner's conditions to the non-selections at issue in this case. Additionally, other letters from physicians in January 2003 and May 2005 reflect that Petitioner reported that she experienced stress because she was not promoted, but the letters do not show that Petitioner took leave on any particular dates because of the discrimination. Petitioner blames the inability to pinpoint leave usage attributable to discrimination on the Agency's failure to provide her with time and attendance records from the relevant time period. However, we note that by the time this case was decided in 2009, the Agency was no longer required to retain time and attendance records from the late 1990s and early 2000s. Moreover, Petitioner could have retained her own time and attendance records, but ostensibly did not do so. The record reveals that the Agency restored 1,531 hours of LWOP charged to Petitioner from July 1, 1998, until September 16, 2002, because it was unable to reconstruct with specificity which leave hours were attributable to discrimination, instead of other reasons. Petitioner maintains that her February 2013 declaration is sufficient to show her entitlement to the restoration of specific amounts of sick leave, advanced sick leave, annual leave, and credit hours during the relevant time period. However, overall, Petitioner's declaration is rather vague and generalized. Moreover, Petitioner's February 2013 declaration is essentially based on her 2013 memory of her customary leave usage through the years, but is not based on any contemporaneous documentary evidence about the reasons she took leave during the relevant time period. As such, Petitioner concludes that any leave that she took that was not part of her customary non-discriminatory reasons for taking leave had to necessarily be related to discrimination. We find that this process of elimination is an unreliable method to determine how much leave she took because of discrimination, especially in light of the fact that Petitioner's analysis was undertaken approximately a decade after the leave at issue was actually used. At the same time, we are persuaded that Petitioner took some leave because of the discrimination. Given the lack of documentation and proof linking specific leave to discrimination, we find that the Agency appropriately converted 1,531 hours LWOP into administrative leave from the date Petitioner was first not selected for a Senior Attorney-Advisor detail (July 1, 1998) until the date the Agency retroactively promoted her to a Senior Attorney-Advisor position (September 16, 2002). Petitioner objects to the restoration of LWOP by converting it to administrative leave. The Agency explained that, according to the Department of Interior's Interior Business Center Human Resources Directorate (DOI), which processed the restoration of leave, the Agency could only accomplish payment to Petitioner for the 1,531 hours of LWOP by providing a directive to DOI that its Federal Personnel/Payroll System (FPPS) could effectuate. The Agency further explained that the only way that DOI's FPPS could effectuate the payment for LWOP was for it to convert the 1,531 LWOP hours to administrative leave, which resulted in Petitioner receiving payments for the LWOP in 2013 PP-15 and 2013 PP-18. As such, the Agency maintains that it had no choice but to process payment for the LWOP by converting LWOP to administrative leave. The Agency further points out that consistent with Petitioner's placement in pay status through administrative leave for the 1,531 restored hours, she received an upward adjustment in her annual leave (112.45 hours) and sick leave (76.75 hours) balances, as well as pay for several holidays for which she had not been eligible when she was in LWOP status. As such, because of the amount of time that had passed since the leave was taken, the external processing constraints, and the lack of evidence proving that Petitioner used leave because of discrimination on specific dates, we find that the Agency's restoration of 1,531 hours of LWOP to Petitioner provides Petitioner with adequate compensation for leave taken in this case. We note that the Agency's actions not only credited Petitioner with 1,531 hours of administrative leave, but ultimately led to her being paid for those hours through a back pay award, as detailed below. Therefore, we find that the Agency's actions were sufficient to make Petitioner whole with respect to leave taken because of discrimination. Back Pay and Within-Grade-Increases Upon review, we note that the Agency paid Petitioner in different disbursements in 2010 and 2013 because of processing errors and constraints. Regarding Petitioner's within-grade increases (WIGIs), the Agency provided payroll reports and explanations of the information and calculations contained in the reports. Petitioner maintained that it appeared that she was paid at the correct WIGI pay rate effective January 13, 2013; was paid $3,546.28 for WIGI increases for the period from May 12, 2012, until May 18, 2013; and was not properly paid for WIGI increases from August 15, 1999, until May 11, 2012. The Agency acknowledges that it initially missed or incorrectly calculated WIGIs for Petitioner from August 15, 1999, until January 13, 2013. The Agency explains that DOI's automated personnel system can only automatically issue pay adjustments without human intervention for a one-year period preceding the triggering personnel action; therefore, Petitioner initially only received WIGI corrections and payment in 2013 PP-12 (June 1, 2013), for the period May 20, 2012 through May 18, 2013. The Agency further maintains that payment for the remaining periods addressed by the WIGI corrections, from August 15, 1999 through May 19, 2012, needed to be effectuated manually by DOI. The Agency maintains that, once it became aware of the errors, it was able to enter WIGI/grade increase corrections for the period from August 15, 1999, through May 19, 2012, and Petitioner was paid accordingly. We note that a review of the Agency's 120-page payroll document reflects that it calculated that Petitioner was entitled to gross back pay of $148,305.86, distributed in 2013 pay period 15 (PP-15), which "represent[ed] the remainder of the monies due for the WIGI corrections detailed on the Within-Grade Corrections document provided herewith, plus the majority of the compensation owed for restoration of leave taken as a consequence of discrimination." The record further reflects that the Agency calculated Petitioner's entitlement to back pay by crediting Petitioner with WIGIs for each pay period during the relevant time period. For example, for 1999 PP-18, the Agency credited Petitioner for a WIGI effective August 15, 1999, that resulted in the Agency paying Petitioner $74.63 for that pay period. Additionally, documentation reflects a WIGI correction effective January 20, 2000, promoting Petitioner retroactively to GS 13, step 5, in 2000 PP-04, that resulted in the Agency paying Petitioner an additional $79.20. Overall, the documentation reveals that the Agency calculated that Petitioner was entitled to $1,756.32 in back pay in 2012 PP-17; $148,305.86 in back pay in 2013 PP-15; $4,868.50 in back pay in 2013 PP-16; and $143.36 in back pay in 2013 PP-18. Petitioner contends that she was not paid for 64 hours, or eight days, of holidays. The Agency explains that Petitioner initially was not paid for 10 federal holidays, beginning on October 8, 2001 (Columbus Day), and ending on September 2, 2002 (Labor Day), because she was in LWOP status during that time period. The record reflects that the Agency converted Petitioner's LWOP to regular hours (administrative leave) so that she could be paid for those holidays. The Agency further reflects that the back pay amount includes payment for the holidays for which Petitioner was not previously paid. Thus, we find that Petitioner was properly paid for holidays. With regard to deductions, payroll documents reveal that the Agency made the following deductions from Petitioner's back pay in 2010 and 2013: $22,202.82 in federal taxes; $778.88 in FERS contributions; $1,425.50 in Medicare contributions; $3,431.66 in OASDI contributions; and $160.56 in Federal Employees' Group Life Insurance (FEGLI) contributions. The documentation also shows that FERS contributions were based on the requirement that FERS employees contribute 0.8 percent of regular pay except during periods for which the Balanced Budget Act of 1997 mandated increased FERS deductions of 1.05 percent from January 1999 through December 1999; 1.20 percent from January 2000 through December 2000; and 1.30 percent from January 2001 through December 2002. Additionally, the documentation reflects that the Agency deducted 1.45 percent of Petitioner's total gross pay for Medicare; 6.2 percent for OASDI taxes; and $.155 per $1,000 of coverage for FEGLI life insurance. The documentation also reveals that the Agency took federal income tax out of Petitioner's total gross back pay (without TSP contributions) at a rate of 25 percent. After a thorough review of the matter, we find that the documentation reflects that the Agency took appropriate deductions out of Petitioner's back pay award. Further, we find that the record shows that Petitioner was appropriately paid for additional overtime during the time period. Additionally, the Agency's documentation reflects that Petitioner was paid interest based on annual Treasury rates on the back pay amounts. Specifically, for the period September 7, 1999, until July 23, 2013, the Agency paid interest on the back pay amounts, based on annual U.S. Treasury interest rates that ranged from 3.0 percent at the end of the time period to 9.0 percent in 2000 and early 2001. Agency documentation reflects that the interest was properly compounded on a daily basis, using the official Treasury annual percentage rate for each respective year. Documentation also reflects that deductions from Petitioner's pay award were not calculated based on the total of the back pay and interest, but rather, only on the gross back pay amounts, to which interest was subsequently added after deductions were taken. Thus, we find that the Agency complied with our orders with regard to its calculations of back pay, deductions, and interest. TSP and Retirement Contributions The Commission has held that, to the extent a Petitioner would have received government contributions to a retirement fund as a component of her salary, she is entitled to have her retirement benefits adjusted as part of her back pay award, including receiving the earnings which the account would have accrued. Johnson v. U. S. Postal Serv., EEOC Appeal No. 0120072120 (Sept. 13, 2013). In this case, the Agency submitted documentation that reflects that during the time period for which salary corrections were made, Petitioner had three distinct periods of TSP contribution elections: 1) 1999 PP-18 through 2001 PP-16, in which she elected to contribute $100 per pay period; 2) 2001 PP-17 through 2010 PP-26, in which she elected to contribute a percentage of her pay, ranging from 11 percent to 15 percent; and 3) 2011 PP-01 through 2012 PP-12, in which she elected to contribute $635 per pay period. The Agency submitted TSP documentation that reflects Petitioner's previous and new pay amounts throughout the relevant time period; Petitioner's previous TSP employee contributions (flat dollar amount or percentage) for each pay period; the previous TSP employee contributions; the additional TSP employee contribution due pursuant to our orders; the additional one percent automatic Agency contribution due on the difference in basic pay; and the additional Agency matching (up to four percent) contribution. The Agency also submitted additional documentation that reflects the Agency allocated additional employee and government contributions into Petitioner's TSP account in accordance with her previously designated investment funds, which resulted in gains or losses to her account. The Agency submitted documentation that sets forth the amount Petitioner was originally paid; the amount Petitioner was paid after our orders; the rate of FERS government contributions during the relevant pay periods; and the amount of additional contributions the Agency had to contribute to Petitioner for each pay period. The Agency's documentation shows that for the entire period, the Agency paid Petitioner an additional $9,944.78 in FERS contributions. After reviewing this documentation, the Commission finds that the Agency has complied with our orders with respect to TSP and retirement benefits and contributions. Increased Tax Liability Petitioner maintains that the Agency has not paid her for increased tax liability incurred because of lump sum back pay and compensatory damages awards. 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. Van Hoose v. Dep't of Navy, EEOC Appeal Nos. 01982628 and 01990455 (Aug. 22, 2001); Goetze v. Dep't of Navy, EEOC Appeal No. 01991530 (August 22, 2001); Holler v. Dep't of 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 Petitioner bears the burden to prove the amount to which she claims entitlement, and courts have demanded probative calculations by Petitioners. See Cottrell v. Dep't of Transp., EEOC Petition No. 04A30015 (Oct. 12, 2004). Upon review, we note that the record indicates that Petitioner has received lump sum back pay awards. Further, the Agency acknowledges that it has not paid Petitioner for increased tax liability because the final amount of back pay due to Petitioner has been unclear and contested by the parties. We note that the Commission has held that until the final amount of back pay award has been determined, a complainant has not had the opportunity to establish her tax liability based on such an award. Fitzgerald v. Dep't of Homeland Security, EEOC Appeal No. 0120071675 (July 2, 2009). Now that the final amount of back pay due Petitioner has been established, Petitioner is entitled to demonstrate that she has incurred increased tax liability because of the lump sum back pay awards. 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. With regard to Petitioner's claim that she is entitled to an award to cover tax liability for compensatory damages, we note that the Commission has not recognized any entitlement to awards to cover tax liability for compensatory damages. In Williams v. Dep't of Veterans Affairs, EEOC Petition No. 04A40047 (June 30, 2005), the Commission found: In a 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 petitioner is still required to pay taxes. In the case of compensatory damages and interest, there is no option to receive partial payments over time. Thus, there are no additional negative tax consequences to awards of compensatory damages and interest, and, therefore, no entitlement to compensation for such additional negative tax consequences. Therefore, we find that Petitioner is not entitled to any award because she incurred increased tax liability related to her compensatory damages award. Finally, we note that Petitioner maintains that she is entitled to be reimbursed for the $242.97 that she had to spend for out-of-pocket health insurance premiums during 2003 PP-17. We find that Petitioner failed to prove that she had to pay these premiums because of discrimination at issue in this case, and therefore, she is not entitled to such a reimbursement. CONCLUSION Accordingly, based on a thorough review of the record, Petitioner's contentions in the petition for enforcement, and the Agency's response, including those not specifically addressed, it is unclear from the record whether Petitioner is entitled to be reimbursed for increased federal and state income tax liability because of her lump sum back pay awards. Therefore, the Commission REMANDS the tax liability matter to the Agency for further processing consistent with this decision and the ORDER below. The Commission finds that the Agency has complied with the remainder of our orders and DENIES Petitioner's petition for enforcement with respect to these matters. ORDER Within one hundred and twenty (120) calendar days from the date this decision becomes final, the Agency is ORDERED to undertake the following actions: The Agency shall request that Petitioner submit her claim for compensation for all additional federal and state income tax liability. The Agency shall afford Petitioner sixty (60) calendar days to submit her claim and supporting documents. The burden of proof to establish the amount of additional tax liability, if any, is on the Petitioner. The calculation of additional tax liability must be based on the taxes Petitioner would have paid had she received the back pay in the form of regular salary during the back pay period, versus the additional taxes she paid due to receiving the back pay lump sum award in 2010 and 2013. Thereafter, the Agency shall issue a decision on this matter and any amount of proven additional tax liability within one hundred and twenty (120) calendar days of the date this decision becomes final in accordance with 29 C.F.R. § 1614.110(b). The Agency shall provide a copy of its final decision, and proof of payment, to the Compliance Officer as referenced below. 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. ATTORNEY'S FEES (H0610) If Complainant has been represented by an attorney (as defined by 29 C.F.R. § 1614.501(e)(1)(iii)), she is entitled to an award of reasonable attorney's fees incurred in the processing of the complaint. 29 C.F.R. § 1614.501(e). The award of attorney's fees shall be paid by the Agency. The attorney shall submit a verified statement of fees to the Agency -- not to the Equal Employment Opportunity Commission, Office of Federal Operations -- within thirty (30) calendar days of this decision becoming final. The Agency shall then process the claim for attorney's fees in accordance with 29 C.F.R. § 1614.501. 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) (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. 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 (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 Petitioner'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 8, 2016 Date 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. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 0420140010