U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Corazon P.,1 Petitioner, v. Jeh Johnson, Secretary, Department of Homeland Security (Federal Emergency Management Agency), Agency. Petition No. 0420150004 Appeal No. 0720120006 Agency No. HS09FEMA00461 DECISION ON A PETITION FOR ENFORCEMENT On February 4, 2015, the Equal Employment Opportunity Commission (EEOC or Commission) docketed a petition for enforcement to determine whether the Agency has complied with the Order set forth in EEOC Appeal No. 0720120006 (September 19, 2013). Petitioner alleges that the Agency has not complied with the Commission's order with respect to back pay. The Commission accepts this petition for enforcement pursuant to 29 C.F.R. § 1614.503. For the following reasons, the Commission GRANTS the petition for enforcement. ISSUE PRESENTED Whether in computing the amount of back pay due Petitioner the Agency properly determined that per diem was not included as part of back pay compensation; and whether in computing the amount of back pay due Petitioner the Agency properly deducted unemployment benefits she received from the back pay calculation. BACKGROUND The Commission found that the Agency discriminated against Petitioner on the bases of race (African-American) when: (1) the Agency demobilized and directed Petitioner to return to Texas from Iowa; (2) Petitioner received an unsatisfactory performance appraisal; and (3) Petitioner was forced to change her travel time from 19 hours of travel to 8 hours of travel. The Agency appealed the Equal Employment Opportunity Commission Administrative Judge's (AJ's) decision to the Commission, and in EEOC Appeal No. 0720120006, the Commission found the AJ's finding of discrimination was supported by the evidence in the record. The relevant section of the Order required that the Agency: 1. ...[D]etermine and pay Complainant back pay (with interest, if applicable) and other benefits due Complainant pursuant to 29 C.F.R. 1614.501, no later than 60 calendar days after this decision becomes final. The Agency's determination should be based on the fact that absent discrimination, Complainant would have been deployed to Iowa for as long as the new hirer was deployed and would have received all benefits to which an employee who performed in a fully successful manner was entitled. On or around February 12, 2014, the Agency issued Petitioner a check for $23,426.95 in net back pay. The Agency explained that in order to calculate this amount, it looked at the payroll data of the comparator employee to determine the number of hours she worked, including overtime, during the interim period covered by the corrective action. The Agency calculated the interim period using the dates that the comparator employee worked when she was deployed to Iowa DR1763, and determined that she was employed for 349 days, from June 7, 2009 to May 22, 2010. The Agency used Petitioner's rate of pay which not only increased during the interim period, but was also higher than the comparator's. The Agency deducted the salary Petitioner earned while deployed as a Disaster Assistance Employee (DAE) from June 7, 2009 through September 26, 2009 and from May 9-22, 2010 from its back pay calculation as required by law to avoid duplicative recovery. The Agency did not deduct any per diems earned during this time period nor did it include any per diem as part of her compensation. Based on the dates and rates of pay, the Agency determined that Petitioner was entitled to $28,072.67 in total back pay. This amount included interest on her back pay amount of $3399.28, and an additional $376.77 for 10.5 hours of overtime, plus interest for the 19 hour drive she made to Iowa DR1763 on June 8, 2009. In addition to the amounts outlined above, Petitioner also received $8045 in unemployment compensation. This amount was deducted from the total net back pay amount. On February 4, 2015, Petitioner submitted the petition for enforcement at issue. CONTENTIONS IN PETITION In her petition, Petitioner contends that the Agency has not complied with the Commission's order with respect to back pay. Specifically Petitioner argues that the Agency should have included per diem for the deployment periods when she was in other locations. Additionally, Petitioner contends that the amount of unemployment compensation she received should not have been deducted from the total back pay award. In opposition, the Agency requests that we deny the petition. Citing the Back Pay Act, 5 U.S.C. § 5596, and its implementing regulations, 5 C.F.R. § 550.805 (referenced in 29 C.F.R. § 1614.501), the Agency argues that per diem is not a part of back pay because per diem is not compensation. Additionally, the Agency argues that the unemployment compensation Petitioner received was required by law to be deducted from the total back pay calculation in order to avoid duplicate compensation for the same period of time. ANALYSIS AND FINDINGS We find that the Agency properly declined to include per diem when it calculated the back pay amount due Petitioner. Per diem is not considered compensation under the Back Pay Act. See 5 U.S.C. § 5596. Back pay is defined as compensation of an amount equal to all or any part of the pay, allowances, or differentials, as applicable which the employee normally would have earned or received during the period if the improper personnel action had not occurred, less any amounts earned by the employee through other employment during that period. Id. Pursuant to 41 C.F.R. § 301-11.1 an employee is eligible to receive per diem reimbursements when: (a) she performs official travel away from her official station, or other areas defined by her agency; (b) she incurs per diem expenses while performing official travel; and (c) she is in a travel status for more than 12 hours. By its very definition and statutory requirements, it is clear that per diem payments are not intended to be included in back pay awards. Per diem payments are reimbursements for incurred expenses. Petitioner is seeking to be reimbursed for expenses she "would have incurred" had she been deployed in Iowa during the relevant time periods. We find no authority to support Petitioner's request. See Morris v. United States, 595 F.2d 591 (Ct.Cl.1979) (per diem and commuting expenses are not reimbursable under the Back Pay Act); See also Hurley v. United States, 624 F.2d 93, 95 (10th Cir. 1980). Moreover, we find that, pursuant to Commission precedent, the Agency's deduction of unemployment compensation benefits from Petitioner's back pay award was improper. The Commission has stated on numerous occasions that an agency may not deduct unemployment compensation from an employee's back pay award. See Woodrow B.v. Dep't of Housing and Urban Development, EEOC Appeal No. 0120143194 (May 13, 2016) (citing Collick-Brown v. Dep't of Navy, EEOC Appeal No. 01910904 (Mar. 26, 1991); Dana v. U.S. Postal Serv., EEOC Appeal No. 0192164 (June 11, 1993); Vashi v. U.S. Postal Serv., EEOC Appeal No. 07A50056 (Dec. 5, 2007)). Because the Agency deducted $8,045 from Petitioner's total back pay award, we find that it must recalculate the award in order to reimburse the amount it improperly deducted as unemployment compensation. CONCLUSION After a review of the entire record, we find that the Agency has not complied with the Commission's order in EEOC Appeal No. 0720120006 (September 19, 2013), with respect to back pay. As a result, the Agency is directed to comply with the ORDER below. ORDER To the extent that it has not already done so, the Agency is ORDERED to take the following remedial actions: 1. Within 60 days of the date of receipt of this order, the Agency shall pay Complainant $8045.00 (plus applicable interest) in back pay for the amount that it improperly deducted. In addition, the Agency shall determine and pay any other benefits, if applicable, due Complainant. 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 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. § 1614.50l(e)(l)(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. See29 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-l6(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.See29 C.F.R. § 1614.409. COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (T0610) This decision affirms the Agency's final decision/action in part, but it also requires the Agency to continue its administrative processing of a portion of your complaint. 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 on both that portion of your complaint which the Commission has affirmed and that portion of the complaint which has been remanded for continued administrative processing. 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 your appeal with the Commission, until such time as the Agency issues its final decision on your complaint. 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 __10/26/16________________ 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 0420150004 2 0420150004