U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Vaughn C.,1 Petitioner, v. Deborah Lee James, Secretary, Department of the Air Force, Agency. Petition No. 0420160004 Appeal No. 0120123332 Agency No. 8I1M11013 DECISION ON A PETITION FOR ENFORCEMENT On December 10, 2015, the Equal Employment Opportunity Commission (EEOC or Commission) docketed a petition for enforcement to examine the enforcement of an Order set forth in Complainant v. Department of the Air Force, Appeal No. 0120123332 (September 10, 2014). The Commission accepts this petition for enforcement pursuant to 29 C.F.R. § 1614.503. Petitioner has alleged that the Agency failed to fully comply with the Commission's orders regarding back pay, compensatory damages, and attorney's fees and costs. BACKGROUND At the time of events giving rise to this complaint, Petitioner worked as a Security Specialist at the Agency's Eglin Air Force Base facility in Florida. Petitioner filed an EEO complaint in which he alleged that the Agency discriminated against him on the bases of race (African-American), color (Black) and national origin (American) in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq. In Appeal No. 0120123332, this Commission found that the evidence established that Petitioner was subjected to unlawful ongoing racial harassment that resulted in his constructive discharge. To remedy this discrimination, our previous decision ordered the Agency to reinstate Petitioner to the position he would have been absent the harassment and constructive discharge. The Agency was also ordered to provide Petitioner with back pay with interest and benefits from the date he ceased receiving pay from the Agency until the date he is reinstated or declines the Agency's offer of reinstatement. The Agency was also ordered to pay attorney's fees and costs, as well as to adjudicate Petitioner's claim for compensatory damages. The matter was assigned to an EEOC Compliance Officer and docketed as Compliance No. 0620150030 on October 9, 2014, who monitored the Agency's compliance with these orders. On December 10, 2015, Petitioner submitted the petition for enforcement at issue. Petitioner contends that the Agency failed to provide Petitioner with any back pay. He also noted that once he was reinstated at the Agency, he was incorrectly notified that he had been overpaid by the Agency in the amount of $14,634.05, and that his pay is being reduced by $267.37 each pay period in order to repay this debt. Finally, Petitioner contends that the Agency's awards of compensatory damages and attorney's fees and costs were incorrect and did not adequately compensate him. ANALYSIS AND FINDINGS Compensatory Damages and Attorney's Fees We note that the Agency issued separate final decisions on these issues as ordered by the Commission's decision. On December 8, 2014, the Agency issued its final decision regarding Petitioner's entitlement to attorney's fees and costs. Neither Petitioner nor his attorney filed an appeal of that decision. As such, we will not address the claim that the Agency failed to properly calculate attorney's fees and costs. Petitioner did appeal the Agency's final decision dated February 6, 2015, concerning compensatory damages, which was docketed as EEOC Appeal No. 0120151396. The issue of compensatory damages will be addressed in that decision, which will be issued separately. Therefore, the instant Petition for Enforcement will only focus on the issue of back pay. Back Pay Award The purpose of a back pay award is to restore to Petitioner the income he would have otherwise earned but for the discrimination. See Albemarle Paper Co. v. Moody, 442 U.S. 405, 418-19 (1975); Davis v. U.S. Postal Serv., EEOC Petition No. 04900010 (Nov. 29, 1990). The Agency is required to make certain deductions from back pay awards to ensure that the employee does not receive more in total benefits than he would have received in the absence of the discriminatory personnel action. The person who has been discriminated against must receive a sum of money equal to what would have been earned by that person in the employment lost through discrimination (gross back pay) less what was actually earned from other employment during the period, after normal expenses incurred in seeking and holding the interim employment have been deducted (net interim earnings). The difference between gross back pay and net interim earnings is net back pay due. Gross back pay should include all forms of compensation and must reflect fluctuations in working time, overtime rates, penalty overtime, Sunday premium and night work, changing rate of pay, transfers, promotions, and privileges of employment to which the Petitioner would have been entitled but for the discrimination. See Ulloa v. U.S. Postal Serv, EEOC Petition No. 04A30025 (Aug. 3, 2004) (citing Allen v. Dep't of the Air Force, EEOC Petition No. 04940006 (May 31, 1996); Perez v. U.S. Postal Serv, EEOC Petition No. 04A40041 (March 3, 2005). The Commission recognizes that precise measurement cannot always be used to remedy the wrong inflicted, and therefore, the computation of back pay awards inherently involves some speculation. Hanns v. U.S. Postal Serv., EEOC Petition No. 04960030 (Sept. 18, 1997). However, uncertainties involved in a back pay determination should be resolved against the Agency which has already been found to have committed the acts of discrimination. Id. See also Klook v. U.S. Postal Serv., EEOC Petition No. 04A40012 (June 16, 2004) citing Davis v. U.S. Postal Serv., EOC Petition No. 04900010 (Nov. 29, 1990); and Besemer v. U.S. Postal Serv., EEOC Petition No. 04890005 (Dec. 14, 1989). Our prior decision ordered the back pay period in this case to commence on the date Petitioner's resignation (constructive discharge) became effective in May 2011. The record shows that Petitioner was unemployed for about six month following his constructive discharge. After that Petitioner obtained a full-time job with a federal contractor that required him to work in Iraq and Afghanistan. It appears that Petitioner maintained this employment until he was reinstated to his employment with the Agency. The Agency has maintained that, as a result of this employment, Petitioner received higher pay for the total back pay period (from his constructive discharge to his reinstatement with the Agency) than he would have earned at the Agency absent the discrimination. Therefore, it held that he was entitled to no back pay for the entire period. However, we find that it is more correct to examine when the back pay period, which began upon Petitioner's resignation in May 2011, terminated. Courts interpreting Title VII have terminated the back pay period when the complainant has acquired employment which is more lucrative than the job he lost. Denton v. Boilermakers Local 29, 673 F. Supp. 37 (D. Mass. 1987) (back pay period ended when income from new employment became more lucrative than earnings employee would have received from prior employment). See also, Matthews v. A-1 Inc., 748 F.2d 975, 978 (5th Cir.1984); Nordquist v. Uddeholm Corp., 615 F.Supp. 1191, 1204 (D.C.Conn.1985); DiSalvo v. Chamber of Commerce, 568 F.2d 593, 598 (8th Cir.1978); Butta v. Arundel County, 473 F.Supp. 83 (D.Md.1979); Somers v. Aldine Indep. School, 464 F.Supp. 900, 903 (S.D.Tex.1979), aff'd without op., 620 F.2d 298 (5th Cir.1980); Milton v. Bell Laboratories, Inc., 428 F.Supp. 502 (D.N.J.1977). Similarly, the Commission has ordered that an individual is not entitled to back pay for any period in which he or she received an amount at least equal to his or her regular pay and benefits. Petitioner v. Department of the Air Force (National Guard Bureau), EEOC Appeal No. 0720110023 (July 2, 2015). Applying these principles to determine when Petitioner's back pay period ended, we find that the Agency incorrectly found that Petitioner was not entitled to any back pay at all. Instead, Petitioner should be awarded back pay from the date of his resignation (constructive discharge) until he started earning more than he would have earned if he had continued to be employed by the Agency.2 We will order the Agency to recalculate his entitlement to back pay based on this guidance. In making this new calculation, the Agency must also consider any salary increases, including all step increases, promotions and other bonuses, that Petitioner would have been entitled to during the back pay period. In addition, as part of back pay, Petitioner is not just entitled to his monetary salary, but also to the "benefits" he would have earned but for the discrimination, which might include annual leave, sick leave, health insurance, overtime and premium pay, night differentials and retirement contributions. See Vereb v. Dep't of Justice, EEOC Petition No. 04980008 (Feb. 29, 1999). There is no evidence in the record that the Agency calculated what it might owe Petitioner with regard to these benefits. For example, there is no indication that the Agency has restored Petitioner's annual and sick leave balances3 or made appropriate contributions to his retirement benefits and/or "catch-up" contributions to his Thrift Savings Plan (TSP). We further remind the Agency that 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. Dep't. of Navy, EEOC Appeal Nos. 01982628 and 01990455 (Aug. 22, 2001); Goetze v. Dep't. of Navy, EEOC Appeal No. 01991530 (Aug. 22, 2001); Holler v. Dep't. of the Navy, EEOC Appeal Nos. 01982627 and 01990407 (Aug. 22, 2001). In the event Petitioner incurs any tax liability due to a lump sum payment of back pay/benefits, the Agency is directed to comply with the aforementioned long-standing Commission precedents in accordance with the Order below. Finally, with regard to the $14,634 debt claimed by the Agency, repayment of which is being deducted from Petitioner's current pay checks, the Agency asserts that it is the result of an overpayment wholly unrelated to this matter. However, the Agency has not provided adequate evidence in support of this claim. Therefore, we will order it to produce that evidence. CONCLUSION As the record is devoid of evidence to support the alleged back pay and benefits awards, we find that the Agency has not complied with our order in Appeal No. 0120123332. Accordingly, we GRANT the petition and REMAND this matter to the Agency to comply with our Order below. ORDER The Agency is ordered to take the following remedial action: (1) The Agency shall determine the appropriate amount of back pay and other employment benefits due Petitioner, pursuant to 29 C.F.R. § 1614.501, no later than sixty (60) calendar days after the date this decision becomes final. The back pay period for salary replacement shall commence on May 16, 2011, and continue until the date Petitioner started earning more than he would have earned if he had continued to be employed by the Agency. In addition, benefits owed include, but are not limited to, all retirement benefits, TSP payments, retroactive restoration of insurance benefits, as well as restoration of leave balances. Petitioner shall cooperate in the Agency's efforts to compute the amount of back pay and benefits due, and shall provide all relevant information requested by the Agency. In addition, if there is a dispute regarding the exact amount of back pay and/or benefits, the Agency shall issue a check to the Petitioner for the undisputed amount within sixty (60) calendar days of the date the Agency determines the amount it believes to be due. Petitioner may petition for enforcement or clarification of the amount in dispute. The petition for clarification or enforcement must be filed with the Compliance Officer, at the address referenced in the statement entitled "Implementation of the Commission's Decision." (2) Within thirty calendar days (30), the Agency shall provide the Compliance Officer with documentation and explanation for the overpayment of $ 14,635.05. 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 of the Agency's calculation of back pay and benefits due Petitioner, including evidence that the corrective action has been implemented. ATTORNEY'S FEES (H0610) If Petitioner has been represented by an attorney (as defined by 29 C.F.R. § 1614.501(e)(1)(iii)), he 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 Petitioner. If the Agency does not comply with the Commission's order, the Petitioner may petition the Commission for enforcement of the order. 29 C.F.R. § 1614.503(a). The Petitioner 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 Petitioner 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 Petitioner 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 15, 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 The record seems to indicate that Petitioner earned nothing for the six months before he obtained his contractor position. 3 The Agency indicates that Petitioner "sold" (received cash from the Agency) his accumulated leave at the time he resigned (was constructively discharged) in May 2011. As such, the Agency reduced Petitioner's pay upon his reinstatement by $654.75 to repay it for the leave payment. However, if it has collected this amount, it must restore Petitioner's leave balance, to include the hours "sold" to the Agency, as well as the leave he would have earned had he not been forced to resign. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 0420160004 7 0420160004