U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Martina S.,1 Petitioner, v. Jeh Johnson, Secretary, Department of Homeland Security (Citizenship and Immigration Services), Agency. Petition No. 0420160016 Appeal No. 0120120772 Hearing No. 480-2009-00481X Agency No. HS-09-CIS-001501 DECISION ON A PETITION FOR ENFORCEMENT On May 20, 2016, the Equal Employment Opportunity Commission (EEOC or Commission) docketed a petition for enforcement to examine the enforcement of an Order set forth in EEOC Appeal No. 0120120772 (September 4, 2014). The Commission accepts this petition for enforcement pursuant to 29 C.F.R. § 1614.503. ISSUE PRESENTED Whether the Agency has complied with the Commission's order of back pay in EEOC Appeal No. 0120120772? BACKGROUND At the time of events giving rise to this complaint, Petitioner was a retired Adjudication Officer, GS-12, who had previously been assigned to the Agency's Los Angles District Office, U.S. Citizen and Immigration Services (USCIS). Petitioner retired from her position on October 31, 2004. Before her retirement, Petitioner had worked for the Agency (formerly Immigration and Naturalization Services) for 32 years, including 18 years working for USCIS and 10 years as an Adjudication Officer. Petitioner filed a complaint in which she alleged that the Agency discriminated against her on the bases of race (African-American) and reprisal for prior protected EEO activity when, on October 8, 2008, she became aware that she had not been hired as an Adjudication Officer, GS-12, in the Agency's Los Angeles District Office as a rehired annuitant. At the conclusion of the investigation, the Agency provided Petitioner with a copy of the report of investigation and notice of her right to request a hearing before an EEOC Administrative Judge (AJ). Petitioner timely requested a hearing, which was held on April 20, 2011. The AJ issued a decision on October 3, 2011, in the Agency's favor. The AJ specifically found that Petitioner did not establish that the Agency's non-discriminatory reasons were pretext for discrimination. The AJ also found that Petitioner did not establish a causal nexus between her prior protected EEO activity and her non-selection, and thus failed to establish a prima facie case of discrimination based on reprisal. The Agency subsequently issued a final order adopting the AJ's finding that Petitioner failed to prove that the Agency subjected her to discrimination as alleged. Commission's Appellate Decision EEOC Appeal No. 0120120772 Petitioner thereafter appealed the Agency's final order to the Commission. In Ruth Jennings v. Department of Homeland Security, EEOC Appeal No. 0120120772 (September 4, 2012), we reversed the Agency's final order, finding that the AJ erred as a matter of law when she found that Petitioner failed to establish a prima facie case of discrimination based on reprisal. We noted that, although Petitioner's non-selection occurred more than three years after her EEO activity, temporal proximity is not the only way to establish a causal nexus. We noted that the District Director was named as the responsible management official in Petitioner's previous EEO complaint and was responsible for not recommending her for re-hire. Additionally, we found that the AJ did not consider Petitioner's evidence that was offered to establish that the Agency's articulated reasons were unworthy of belief. In particular, we found it unworthy of belief that the Agency would not re-hire Petitioner, a former employee with 25 years of adjudications experience, when the District Director specifically stated that all the selectees were required to perform adjudications work. We therefore found that the AJ's decision was not supported by substantial evidence in the record, and that Petitioner established that she was subjected to discrimination based on retaliation as alleged. As a result, we ordered the Agency to provide Petitioner with back pay and compensatory damages. We also ordered the Agency to, among other things, train and consider disciplining the responsible management official. With respect to back pay, the Commission specifically ordered the Agency to take the following action: The Agency shall determine the appropriate amount of back pay, with interest, and other benefits due to Complainant, pursuant to 29 C.F.R. § 1614.501, no later than sixty (60) calendar days after the date this decision becomes final. The period for which back pay shall be calculated is the period of time from the entry-on-duty of the first selectee into the position through the separation date of the last selectee separated from service. We further awarded Petitioner attorney's fees for the work performed in the course of the appeal. Compliance Actions The matter was assigned to a Compliance Officer and docketed as Compliance No. 0620140734 on September 22, 2014. The Compliance Officer and Agency representatives engaged in e-mail communications during the compliance-monitoring period. The Agency thereafter awarded Petitioner back pay in the amount of $47,676 for the period of September 28, 2008, through March 27, 2009 (pay period 20-2008 through pay period 6-2009). However, because Petitioner was a retiree, the Agency collected $30,591 from this amount and submitted it to the Office of Personnel Management's (OPM's) Retirement Programs. As a result, after tax deductions, the Agency calculated Petitioner's total net back pay amount to be $8,010.40 for this period. However, the Agency had been authorized to waive the dual compensation retirement offset for Adjudication Officer rehired annuitant positions. As the Agency's January 18, 2008, memorandum for the position noted, "Annuitants selected . . . may be approved for a waiver which would result in receipt of full retirement annuity and salary based on the grade to which the annuitant is appointed." The Agency therefore later determined that it erroneously deducted and sent the $30,591 to OPM to be captured as part of Petitioner's retirement benefits. Meanwhile, on November 13, 2015, the Compliance Officer determined that that the Agency improperly found that the period for Petitioner's back pay calculation was from September 28, 2008, through March 27, 2009. The Compliance Officer instead found, and the Agency did not object, that the entry-on-duty date of the first selectee was from September 28, 2008, through the later date of October 19, 2009 (one year and two weeks). As a result, the Agency therefore awarded Petitioner a second additional separate amount of back pay for the period of March 27, 2009, through October 19, 2009, and submitted $39,315 to Petitioner. The Agency, through e-mail, communicated to the Compliance Officer that this second amount was distributed to Petitioner on April 6, 2016. The Agency also indicated it sent a request to the National Finance Center (NFC) to collect the $30,591 back from OPM, so that it (the Agency) could pay Petitioner that amount directly as had been authorized in its January 18, 2008, memorandum for the vacant positions. However, in an e-mail dated April 8, 2016, the Agency indicated that the NFC had been unable to collect the $30,591 back from OPM, and said that it was their (the Agency's) responsibility to request that the OPM return the money. On May 10, 2016, the Agency indicated that they attempted to contact OPM, but received no reply. Petition for Enforcement In the interim, on September 14, 2015, the Commission received Petitioner's instant Petition for Enforcement dated March 18, 2015. Petitioner, through her attorney, requests that the Commission issue a default judgment, or any other appropriate sanction, against the Agency for its failure to timely comply with the Commission's orders in the instant case. Petitioner argues that the Commission's decision, Appeal No. 0120120772, specifically ordered the Agency to pay back pay by December 5, 2014. However, as of March 18, 2015, no back pay payments had been made to her. Petitioner further appeals the Agency's Decision on Compensatory Damages and Attorney's Fees dated February 17, 2015.2 ANALYSIS AND FINDINGS Back Pay 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 (Sep. 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 (November 29, 1990); and Besemer v. U.S. Postal Serv., EEOC Petition No. 04890005 (Dec. 14, 1989). The Commission finds that it is reasonable to require the agency to provide a clear and concise "plain language" statement of the formulas and methods it used to calculate petitioner's back pay. See also Vashi v. U.S. Postal Serv., EEOC Petition No. 0420060009 (Dec. 5, 2007) (noting that it is the agency's obligation to ensure that its back pay calculations are clear, supported in the record and in accordance with 29 C.F.R. § 1614.501.) a. September 28, 2008, through March 27, 2009 For this time period, the Agency awarded Petitioner back pay in the amount of $47,676. However, because Petitioner was a retiree receiving an annuity, the Agency collected $30,591 from this amount and submitted it to the OPM's Retirement Programs. As a result, after tax deductions, the Agency calculated Petitioner's total net back pay amount to be $8,010.40 for this period. In e-mails to the Compliance Officer, the Agency alleged that the $8,010.40 was sent to Petitioner through Electronic Funds Transfer (EFT). However, the Agency specifically waived the offset requirement as noted above, and therefore allowed selected retired employees to receive their full retirement annuity in addition to salary. We note in an e-mail to the Commission dated April 8, 2016, the Agency does not dispute that it erroneously deducted the $30,591 from Petitioner's back pay, improperly sending it to the OPM's Retirement Programs. The Agency indicates that it directed the NFC to ask for the $30,591, but the NFC instead responded that it was their (the Agency's) responsibility to request that the money be returned. In an e-mail dated May 10, 2016, the Agency only indicated it contacted the OPM about the matter, but did not receive a reply. However, the Agency does not provide any further explanation concerning its attempt to recover the $30,591 from OPM. Here, as noted above, the Agency admits that it mistakenly deducted the $30,591 from Petitioner's back pay, improperly sending it to the OPM's Retirement Programs. As such, we shall order the Agency to immediately pay Petitioner that amount, which it erroneously sent to OPM. After tendering Petitioner the $30,591, the Agency may later seek to recover that amount from the OPM's Retirement Programs. The Agency shall also provide Petitioner with a detailed explanation of its back pay calculations. b. March 27, 2009, through October 19, 2009 We note that, in accordance with the Compliance Officer's instructions, the Agency awarded Petitioner a second additional separate amount of back pay for the period of March 27, 2009, through October 19, 2009. We note that the Agency indicated that it submitted $39, 315.00 to Petitioner through EFT for this period. However, we cannot find evidence that the Agency provided documentation affording Petitioner an explanation of its calculations for back pay, with interest, and benefits due for this period. We remind the Agency that to satisfy its burden of showing that Petitioner received the back pay she is due, the Agency must provide detailed documentation regarding its back pay calculations. See Coopwood v. Dep't of Transportation, EEOC Appeal No. 0120083127, (May 2, 2012); Lopez v. Equal Employment Opportunity Commission, EEOC Appeal No. 0120111611 (Mar. 7, 2012). Appropriate back pay documentation should include evidence indicating the applicable pay rate used by the Agency (such as salary tables). Id. Accordingly, the Agency should provide a detailed statement clarifying how the back pay award was reached. Id. This statement must consist of a clear and concise, "plain language" statement of the methods of calculations used and must include evidence of the actual calculations applying said formulas and methods. Id. It should also include clear calculations of the interest and benefits paid to Petitioner. As a result, we find that the Agency must provide detailed information to Petitioner regarding her award of back pay for this period. CONCLUSION As set forth above, we GRANT this petition and REMAND this matter to the Agency to comply with the order below.3 ORDER The Agency is ordered to take the following remedial actions within one hundred and twenty (120) days of the date this decision becomes final: 1. The Agency shall immediately pay Petitioner the $30,591, in back pay which it admitted to erroneously sending to OPM. After tendering Petitioner the $30,591, the Agency may later seek to recover that amount from the OPM's Retirement Programs. The Agency shall also provide Petitioner with a detailed explanation of its back pay calculations with regard to this amount. 2. The Agency shall send all back pay calculation information to Petitioner, so she can be given the opportunity to question or rebut such calculations. As discussed above, this must include detailed documentation regarding the Agency's back pay calculations which should include: evidence indicating the applicable pay rate used by the Agency (such as salary tables); a clear and concise "plain language" statement of the methods of calculations used; evidence of the actual calculations applying said formulas and methods; and clear calculations of the interest and benefits paid to Petitioner. 3. 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 other benefits due to Petitioner, including evidence that the corrective action has been implemented. 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. 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 (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 11-3-16 __________________ 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 The Commission has docketed Petitioner's appeal of the Agency's February 17, 2015, Decision on Compensatory Damages and Attorney's Fees as Appeal No. 0120160001. The Commission will therefore address Petitioner's allegations with respect to compensatory damages and attorney's fees in the docketed Appeal No. 0120160001. 3 To the extent that Petitioner requests that we sanction the Agency for its untimely compliance, we note that the Petitioner has already received much of her back pay and we do not find that the Agency engaged in bad faith here. We further note that the Agency issued its final decision on compensatory damages and attorney's fees, and paid Complainant for those amounts in accordance with Appeal No. 0120120772. Therefore, the Commission declines to impose sanctions here. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 0420160016 2 0420160016