U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Miquel G.,1 Petitioner, v. Megan J. Brennan, Postmaster General, United States Postal Service (Western Area), Agency. Petition No. 0420160025 Appeal No. 0721020041 Agency No. 4E-500-0016-10 DECISION ON A PETITION FOR ENFORCEMENT On June 29, 2016, the Equal Employment Opportunity Commission (EEOC or Commission) docketed a petition for enforcement to determine whether the Agency has complied with our Order set forth in EEOC Appeal No. 0721020041 (March 12, 2015). The Commission accepts this petition for enforcement pursuant to 29 C.F.R. § 1614.503. For the reasons stated below, the Commission GRANTS IN PART and DENIES IN PART Petitioner's Petitioner for Enforcement. BACKGROUND Petitioner filed a formal EEO complaint alleging that the Agency discriminated against him on the bases of sex, age, and reprisal for prior protected EEO activity when it issued him a November 16, 2009, Notice of Removal for violation of a Last Chance Agreement. Petitioner's last day of work was December 3, and he was removed from a pay status on December 16, 2009. At the conclusion of the investigation, Petitioner requested a hearing before an EEOC Administrative Judge (AJ). The AJ held a hearing and subsequently issued a decision finding that the Agency had discriminated against Petitioner on the basis of reprisal. To remedy the discrimination, the AJ awarded make-whole relief in the form of reinstatement as a Carrier Technician (or a mutually agreeable position); back pay and benefits, including career-ladder promotions; and $10,000 in compensatory damages. The Agency subsequently issued a final order rejecting the AJ's finding that Petitioner proved that the Agency subjected him to discrimination as alleged. The Agency simultaneously appealed the matter to this Commission. In accordance with the AJ's Order and the regulation found at 29 C.F.R. § 1614.505 on interim relief, the Agency's final order stated that Petitioner would be offered restoration to a position as a City Letter Carrier. Petitioner appealed the Agency's final order. In a decision dated March 12, 2015, the Commission reversed the Agency's final order and found that the AJ correctly determined that the Agency had discriminated against Petitioner. EEOC Appeal No. 0720120041 (Mar. 12, 2015). The Commission noted that the Agency belatedly offered Petitioner interim relief in the form of restoration to a Carrier position on November 19, 2012, and that Petitioner accepted the offer. The Commission ordered the Agency to take the following corrective actions: Within sixty (60) days of the date this decision becomes final: 1. The Agency shall determine the appropriate amount of back pay, with interest, and other benefits due Complainant since November 19, 2009, pursuant to 29 C.F.R. § 1614.501, no later than sixty (60) calendar days after the date this decision becomes final. Complainant 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. If there is a dispute regarding the exact amount of back pay and/or benefits, the Agency shall issue a check to Complainant for the undisputed amount within sixty (60) calendar days of the date the Agency determines the amount it believes to be due. Complainant 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. To the extent it has not already done so, the Agency shall offer Complainant restoration to his position as a Carrier Technician in Cedar Rapids, Iowa, or to a substantially equivalent position at a mutually agreed upon Agency location. Complainant has fifteen (15) days to accept or decline the Agency's offer of reinstatement. If Complainant should decline the Agency's offer of reinstatement, the date of his declination shall be the end date for any back pay due Complainant. 3. The Agency shall pay Complainant $10,000 in non-pecuniary compensatory damages. 4. The Agency shall provide training to the responsible management officials regarding their responsibilities under EEO laws, with a special emphasis on retaliation discrimination. 5. The Agency shall consider taking appropriate disciplinary action against all responsible management officials still employed by the Agency. The Commission does not consider training to be disciplinary action. The Agency shall report its decision to the Compliance Officer. If the Agency decides to take disciplinary action, it shall identify the action taken. If the Agency decides not to take disciplinary action, it shall set forth the reason(s) for its decision not to impose discipline. If any of the responsible management officials have left the Agency's employ, the Agency shall furnish documentation of their departure date(s). 6. The Agency shall post a notice of the finding of discrimination in accordance with the paragraph below. The matter was assigned to a Compliance Officer and, on March 16, 2015, docketed as Compliance No. 0620150430. The parties engaged in extensive correspondence during the compliance-monitoring period. On July 2, 2015, Petitioner, through his attorney representative, submitted a Petition for Enforcement to the EEOC's Office of Federal Operations (OFO) asking for a calculation of back pay, the posting of a notice of the finding of discrimination, and the removal of matters related to discipline and EEOC proceedings from his personnel file. In a November 17, 2015, Second Petitioner for Enforcement, Petitioner stated that he had received payments for compensatory damages and attorney's fees but had not yet received back pay. He asked OFO to determine whether the Agency had fully implemented the decision. On December 3, 2015, the Agency issued a back-pay check to Petitioner for $144,225.24. The payment represented the Agency's determination that gross back pay was $260,510.92 and adjusted gross back pay (gross back pay minus outside wages) was $243,165.97. The Agency deducted a total of $98,940.73 for tax withholdings and other deductions, including $1,283.73 for "Retire," $9,935.31, for "Health Benefits (105)," and $8,023.13 for TSP. This resulted in a net back pay of $144,225.24. On April 14, 2016, the Agency provided a Compliance Report to OFO, Petitioner, and Petitioner's attorney. The Report included an explanation of the back-pay calculation; information regarding training, the decision not to take disciplinary action, and the posting of a notice; documents showing the payment of compensatory damages and attorney's fees; and a statement that Petitioner's official personnel file did not contain EEOC/OFO documentation. It also included a Form 8039, "Back Pay Decision/Settlement Worksheet," that two Agency officials signed on June 26, 2015, and Petitioner signed on September 11, 2015. In addition, the Report contains a Back Pay Report that summarizes the annual hours, salary, and deductions applied to the back-pay calculations. It also sets forth the base salary, regular and overtime hours, and TSP deductions per pay period. According to an Agency Accounting Service Center Supervisor (ACS Supervisor), the Agency calculated back pay based on the information in Form 8039. The Form addresses several matters, including outside compensation, "Benefits Elections," and "Work Schedule." The "Work Schedule" sets out "the paid hours that would have occurred during the back-pay period had the claimant worked." For each pay period from Pay Period 1/10 to Pay Period 25/12, the document lists work hours, overtime hours, night-shift differential, holiday work, holiday leave, and "POT." As the ACS Supervisor noted, the Compliance Report includes "copies of four payroll journals for the period of the back pay covering PP 24 through 26/2009 and PP 1/2010 (only paid 8 hours Other Paid Leave)." She stated that the hours covered by those pay periods were not part of the Back Pay Report because the Agency already paid Petitioner for those hours. The ACS Supervisor also stated that the Agency based the back-pay determination on the annual salary ("base salary" or "salary base") that Petitioner would have had for each pay period. The Agency submitted an Employee History document that showed the increases in Petitioner's base salary and the pay periods when the increases occurred. Because Petitioner was a full-time employee, the Agency divided the annual salary by 2080 hours to determine his hourly wage per pay period. Finally, the ACS Supervisor stated that "the TSP calculations were from the elected contributions at 5 percent of the basic salary, plus the USPS 1 percent deduction and matching amounts." The Agency submitted payroll journals that depict the TSP deductions and contributions per pay period. The Human Resources Manager stated that she originally used one of Petitioner's co-workers (CW1) as a comparator for determining overtime back pay because CW1 had been a Carrier for as long as Petitioner had been. After Petitioner objected that CW1's "number of hours was not close to the 16 hours/week as quoted by the local union," the Manager ran a "TACS Employee All" report of all City Carriers who had worked overtime during the back-pay period. She chose a different co-worker (CW2) as a comparator "as the overtime hours were higher but still not at the 16 hours/week." She submitted a document that lists the overtime hours worked by 55 employees. CW2 had the highest number of overtime hours: 2,029.95. The Manager stated that Petitioner "received the comparator overtime hours at his own correct overtime pay rate." On January 6, 2016, the Agency issued Petitioner a check for $35,803.73 for interest on the back-pay award. An Agency Accounting Specialist stated that the Agency calculated the interest according to the "OPM Back Pay interest program." She explained that "[i]nterest due is calculated daily" and that the Agency used the "IRS Internal Revenue Code Overpayment rate." Noting that the Agency has a 14-day pay schedule, the Accounting Specialist stated that the Agency calculated interest "in increments of 14 days because the amount available for interest may change each day." Because the interest rate is updated on a quarterly basis, "the same rate may not be applicable the entire days." Petitioner submitted a Third Petition for Enforcement on May 10, 2016. He disputed the Agency's back-pay calculation, requested a clothing allowance, asked that certain documents be removed from his personnel file, requested that a supervisor (S1) be disciplined, disputed the sick- and annual-leave calculations, and asked for a supplemental award of attorney's fees. By letters dated June 29, 2016, the Commission informed Petitioner and the Agency that it was closing compliance on the matter pending a decision on a petition for enforcement. In July 5, 2016, letters, the Commission notified the parties that it had docketed a petition for enforcement and that they had 20 calendar days within which to submit comments. In a July 26, 2016, response, the Agency argued that the petition for enforcement should be denied. The Agency submitted another copy of the Compliance Report and asserted that the Report established that the Agency had complied with the Commission's decision. The Agency did not specifically address any of the particular matters that Petitioner raised. On August 15, 2016, Petitioner submitted an "Amended and Supplemented Third Petition for Enforcement of Decision."2 As discussed more fully below, Petitioner disputed the Agency's calculations concerning gross back pay, interest, deductions for health insurance benefits, Thrift Savings Plan (TSP) contributions and earnings, net back pay, and sick- and annual-leave. In addition, Petitioner requested payment of a uniform clothing allowance, removal of certain documents from his personnel file, the issuance of discipline against S1, an explanation of the "retire" deduction listed on the Agency's back-pay calculation, reimbursement for the adverse tax consequences incurred as a result of receiving a lump-sum back-pay payment, a copy of the Agency's letter to the Iowa Workforce Development regarding unemployment benefits, and attorney's fees and costs. On September 22, 2017, the Agency issued a decision regarding Petitioner's entitlement to compensation for adverse tax consequences. The decision noted that the Agency's Senior Accounting Service Center accountant disagreed with the analysis performed by Petitioner's accountant. According to the Agency's accountant, Petitioner's total adverse tax consequences amounted to $4,159. The decision stated that, if Petitioner disagreed with the Agency's determination, he could appeal the matter to the EEOC's OFO. The Agency included a blank "Notice of Appeal/Petitioner" form. Petitioner did not file an appeal of that decision. ANALYSIS AND FINDINGS The Commission's regulations provide that the Office of Federal Operations may, on its own motion or in response to a petition for enforcement or in connection with a timely request for reconsideration, issue a clarification of a prior decision. A clarification cannot change the result of a prior decision or enlarge or diminish the relief ordered, but may further explain the meaning and intent of the prior decision. 29 C.F.R. § 1614.503(c). As a preliminary matter, we note that, after the Commission docketed the instant Petition for Enforcement, Petitioner submitted an "Amended and Supplemented Third Petition for Enforcement of Decision." That document addressed most of the matters that Petitioner raised in his Third Petition for Enforcement but contained several calculations that differed from the calculations presented in the Third Petition. This decision addresses the issues raised in the "Amended Petition." Adjusted Gross Back Pay The purpose of a back pay award is to restore to Petitioner the income she would have otherwise earned but for the discrimination. See Albemarle Paper Co. v. Moody, 442 U.S. 405, 418-19 (1975). The Agency determined that Petitioner's gross back pay was $260,510.92 and adjusted gross back pay was $243,165.97. Petitioner disputes the adjusted gross back-pay figure and asserts that it should be $266,516.17.3 In an affidavit, Petitioner's accountant states that he calculated the gross back pay "for the first pay period in 2010 and continuing through the 25th pay period in 2012." He states that he based his calculation on information that he received from Petitioner, that Petitioner "received information from the [Agency] about a co-worker who worked during the period [Petitioner] was off work," and that Petitioner "identified the appropriate pay grade steps and pay rates that he was to be paid." Petitioner's accountant submitted a spreadsheet that lists hours (work hours, overtime hours, night-shift differential, holiday work, holiday leave, and "POT"), rate of pay, and the amount of pay for each pay category per pay period. The Agency has supported its calculation of adjusted gross back pay. It provided documentation showing the hours that Petitioner would have worked absent the discrimination, his base salary during the time covered by the back-pay award, and the wages that he would have earned per pay period. The ACS Supervisor explained the basis for the Agency's calculations, and the Human Resources Manager explained why the Agency used CW2 as a comparator for determining Petitioner's overtime pay. The Agency appropriately deducted Petitioner's outside earnings. Petitioner's accountant, however, did not deduct outside earnings from his calculation of back pay. In addition, he states that Petitioner received information from the Agency regarding a co-worker who worked during the back-pay period, but he does not identify the co-worker or describe the information. It is not clear whether Petitioner's accountant is referring to CW1, CW2, or someone else. Having carefully reviewed the parties' submissions, we find that the Agency appropriately determined the adjusted gross back pay to be $243,165.97. Deduction for Health Insurance Benefits Petitioner asserts that the Agency erroneously deducted $9,935.31 from his back-pay award for health insurance benefits. He states in his Amended Petition that he had no health-insurance coverage during the back-pay period and that he is not requesting reimbursement for medical expenses. Petitioner submits a December 23, 2015, letter from his health-insurance carrier that shows that he had health coverage from March 24, 2001, to June 8, 2010, and resumed coverage on December 15, 2012. With his Third Petition for Enforcement, Petitioner submitted a signed, undated Form 8038. Employee Statement to Recover Back Pay. Question 9 on the form asked, "Do you want to have Federal Employees Health Benefits (FEHB) coverage?" Petitioner did not check "yes" or "no." Instead, he wrote, "I re-enrolled at the time I received interim relief." Petitioner also submitted copies of July 30 and September 11, 2015, letters that his attorney sent to the Agency asking several questions and disputing some of the information on the Form 8039, "Back Pay Decision/Settlement Worksheet," that Petitioner signed on September 11, 2015. The form contains a "Health Insurance" section with the following options: No Coverage, Enrollment Continued (Never Terminated), Retroactive Reinstatement, and Enroll as a New Employee. The box for "Retroactive Reinstatement" is checked. The letters that Petitioner's attorney sent to the Agency did not address the "Health Insurance" section of the form. An award of back pay should compensate a prevailing party for the loss of health insurance coverage by either: (1) reimbursing him or her for health insurance premiums paid to continue in an agency-sponsored insurance plan or to secure alternative coverage; or (2) paying her or him for uninsured medical expenses incurred during the relevant period up to the amount that the agency would have contributed to his health insurance premiums. Yerger v. U.S. Postal Serv., EEOC Petitioner NO. 04A50026 (Sept. 22, 2005) (citing McKinney v. U.S. Postal Serv., EEOC Petition No. 04980005 (Aug. 5, 1999). In this case, although Petitioner signed a Form 8039 that indicated an interest in retroactive reinstatement of his insurance coverage, he also signed a Form 8038 that was ambiguous about his preference. In light of that ambiguity, and given that Petitioner does not seek payment for insurance or medical expenses, we find that the Agency should not have deducted $9,935.31 from his back-pay award. Accordingly, we will order the Agency to reimburse Petitioner the $9,935.31 that it withheld for health insurance premiums. Retirement Deduction The December 3, 2015, Typewriter Check Payment document that the Agency submitted with its Compliance Report reflects a "Retire" deduction of $1,283.73. The payroll journals that the Agency submitted with its Compliance Report show a "retirement" deduction for each pay period. For example, the Agency deducted $17.37 in pay period 17 of 2012. Petitioner submits a December 24, 2009, pay stub and notes that the document contains a $2,477.86 figure beneath the label "USPS Retirement."4 Petitioner states that he cannot calculate the "Retire" deduction. He asked, "that the Agency provide an explanation for the category labeled USPS retirement and the calculation of the amount that accrued during his lost back pay period." It appears that the payroll journals contain the information that Petitioner requests. Nonetheless, given Petitioner's confusion on this matter, we will order the Agency to provide a plain-language explanation of the $1,283.73 "Retire" deduction from Petitioner's back-pay award. TSP The Agency deducted $8,023.13 from the adjusted gross back pay for TSP contributions. It submitted payroll journals that show the TSP deductions and contributions. For each pay period, the journals show Petitioner's TSP contributions, the Agency's TSP contribution, its "1 PCT AMT," and its "MATCH AMT." The ACS Supervisor explained that the Agency based its TSP calculations on Petitioner's election of a five-percent contribution, the Agency's one-percent contribution, and its matching contribution. Petitioner argues that his and the Agency's TSP contributions should have been $7,791.00 each. He also argues that "the Agency has not identified or paid the earnings which [Petitioner's] Thrift Savings Account would have accrued but for the discrimination." His accountant states that Petitioner represented "that he had enrolled in the L2020 Fund" effective as of his lost back pay period or pay period 1, year 2010." He calculated the value of Petitioner's TSP account for the back-pay period to be $22,208.57. Petitioner asks, "that his TSP account be credited in the amount of $22,208.57 based on both" his and the Agency's TSP contributions for the back-pay period. Alternatively, Petitioner asks that the Agency provide a calculation for his review. The Agency, which did not provide a detailed response to this petition for enforcement, has not addressed Petitioner's argument regarding the TSP matters. It has not addressed the differences between the Agency's calculation of TSP contributions per pay period and Petitioner's calculation. Although unclear, it appears that the Agency and Petitioner have reached different conclusions because they have based their calculations in part on different pay rates. To ensure that the correct contributions are made, we will give the Agency an opportunity to explain further its calculation. In addition to identifying the contributions made per pay period, the calculation should identify the pay rate on which the contributions are based. Further, it is not clear whether the Agency's calculation included compensation for Petitioner's lost TSP earnings. It also is not clear whether Petitioner's TSP account was in the "L2020 Fund" at the time of his removal. Petitioner is entitled to compensation for the TSP earnings that he would have had absent the discrimination. A calculation of those earnings depends on the fund(s) in which Petitioner was investing at the time of his removal. We cannot determine whether the Agency has provided Petitioner with compensation for the TSP earnings that would have accrued absent the discrimination. Accordingly, we will remand this matter to the Agency for a determination of Petitioner's lost TSP earnings.5 Net Back Pay The Agency provided Petitioner with a net back pay of $144,225.24. That amount reflected deductions for, among other things, "Retire," health benefits, and TSP contributions. Petitioner disputes the Agency's determination of net back pay. His accountant calculated that Petitioner's net back pay should be $171,002.52. The accountant based that figure on a gross back pay of $266,516.17 minus deductions for Social Security, Medicare, state and federal taxes, union dues, and TSP contributions. The accountant did not deduct retirement contributions. As noted above, the Agency erroneously deducted $9,935.31 for health insurance premiums and must reimburse Petitioner for that amount. In addition, it is not clear whether the Agency deducted the proper amounts for TSP contributions. Accordingly, the Agency should recalculate Petitioner's net pay in light of the health-insurance reimbursement and changes, if any, in TSP deductions. Interest Petitioner disputes the Agency's interest calculation of $35,803.73 and asserts that the Agency should have awarded him $54,453.86. Petitioner's accountant based his calculation on his determination that that Petitioner's gross back pay amounted to $266,516.17. The Commission has held that interest is properly computed on net back pay, not gross back pay. See Kloock v. U.S. Postal Serv., EEOC Petition No. 04A40012 (June 16, 2004) (citing Wrigley v. U.S. Postal Serv., EEOC Petition No. 04950005 (Feb. 15, 1996). In this case, the Agency must recalculate the net back-pay amount to reimburse Petitioner for health-benefit deductions and, if necessary, for extra TSP deductions. After making that determination, the Agency should recalculate the interest computation and pay Petitioner the additional interest. Uniform Allowance Petitioner contends that the Agency should pay him $1,200.00 ($400.00 per year) for his uniform allowance for the years 2010 through 2012. Petitioner is not entitled to receive a retroactive uniform allowance for the back-pay period. Since he was not working at the Agency during that time, he had no need for a uniform. Emerson S. v. U.S. Postal Serv., EEOC Petitioner No. 0420130026 (Nov. 20, 2015); McNeil v. U.S. Postal Serv., EEOC Petitioner No. 04990007 (Dec. 9, 1999). Adverse Tax Consequences The Commission has held that an award to cover additional tax liability from a lump-sum payment of back pay is available to petitioners. Goetze v. Dep't of the Navy, EEOC Appeal No. 01991530 (Aug. 22, 2001); Holler v. Dep't of the Navy, EEOC Appeal Nos. 01982627 and 01990407 (Aug. 22, 2001); Van Hoose v. Dep't of the Navy, EEOC Appeal Nos. 01982628 and 01990455 (Aug. 22, 2001). A petitioner has the burden to prove the amount to which she or he claims entitlement, and courts have demanded probative calculations. The tax-liability calculation must be based on the taxes that the individual would have paid if he or she had received the back pay as a regular salary during the back-pay period. See Cottrell v. Dep't of Transp., EEOC Petition No. 04A30015 (Oct. 12, 2004) (citing Hukkanen v. Int'l Union of Operating Engineers, 3 F.3d 281, 287 (8th Cir. 1993); Barbour v. Medlantic Mgmt. Corp., 952 F. Supp. 857, 865 (D.D.C. 1997), aff'd, 132 F.3d 1480 (D.C. Cir. 1997)). In his Amended Petition, Petitioner states that he submitted tax records to the Agency on May 9, 2016, and asked the Agency to perform an analysis of the tax consequences of receiving a lump-sum back-pay award. He "requests that the Agency provide this calculation and that he be given an opportunity to review it for accuracy." In addition, Petitioner notes that, "[i]n the absence of the Agency's analysis," his accountant calculated the tax consequences. Petitioner's accountant stated that Petitioner incurred an additional tax liability of $18,951: $14,365 in federal taxes and $4,586 in state taxes. "In the absence of the Agency's analysis, [Petitioner] requests that [his accountant's] calculation of the tax consequences of the lump sum payment of back pay be awarded." On September 22, 2017, after Petitioner submitted his Amended Petition to this Commission, the Agency issued a decision regarding on the tax-consequences matter. In an attachment to the decision, the Agency's Senior Accounting Service Center accountant explained his analysis and concluded that Petitioner's total adverse tax consequences amounted to $4,159. The decision expressly gave Petitioner appeal rights to the Commission, but he did not file an appeal. Accordingly, the decision stands. We find, therefore, that Petitioner is entitled to an award of $4,159 to compensate for the additional tax liability from his receipt of a lump-sum payment of back pay. Because it is not clear whether the Agency has paid the award to Petitioner, we will order the Agency to do so. Annual and Sick Leave Petitioner contends that the Agency erroneously calculated his sick and annual leave. He asserts that he should receive 601.77 hours of accrued sick leave and 608.96 hours of accrued annual leave. He submits a December 24, 2009, pay stub and claims that it shows a balance of either 293.77 or 289.77 hours of sick leave6 and 128.96 hours of annual leave. It is not clear whether the Agency paid Petitioner for any accrued leave after his removal and how much sick and annual leave the Agency provided to Petitioner when it reinstated him. Accordingly, we will remand this matter to the Agency for a leave determination. On remand, the Agency should determine the amount of sick and annual leave Petitioner would have earned during the back-pay period absent the discrimination and, to the extent that it has not done so already, provide the leave to Petitioner. The Agency should provide a clear explanation of its leave calculation. It should identify Petitioner's leave balance at the time of his removal, clarify whether it paid Petitioner for any accrued leave when he was removed, and explain how much sick and annual leave Petitioner accrued in each pay period of the back-pay period. Disciplinary Action The Commission's Order required the Agency to "consider taking appropriate disciplinary action against all responsible management officials still employed by the Agency," to identify any action taken, to explain its reasons for not taking disciplinary action, and to provide supporting documentation if any of the responsible officials have left the Agency. In its Compliance Report, the Agency provided documentation establishing that one responsible management official left the Agency. The Agency stated that it did not discipline S1, that S1 now works in a different position at a different location, and that there have been no findings of discrimination involving S1 since the AJ's July 2012 decision. Petitioner asserts that S1 "maintains an influential role with the Agency" and alleges that another employee has filed a complaint of discrimination against S1. The Commission's order directed the Agency to "consider" discipline and to explain its reasons for not taking disciplinary action. The Agency has done so. Accordingly, we find that the Agency has complied with paragraph (5) of the Commission's Order. Documents in Official Personnel File Petitioner, who notes that the Agency removed documents related to his EEO case from his personnel file, asks that the Agency also remove three documents related to a union grievance. He states that the documents reflect that the Agency discharged him. The Commission's Order did not require the Agency to remove documents from Petitioner's personnel file. The Agency, therefore, was not required to remove documents related to a union grievance. To the extent that the Agency wishes to remove the documents voluntarily, it may do so; nothing in the Commission's decision and Order prevents the Agency from removing the documents. Iowa Workforce Development Letter Petitioner states that he has contacted the Iowa Workforce Development (IWD) to determine whether he needs to reimburse the State of Iowa for unemployment benefits that he received. He asks for a copy of the Agency's letter to IWD. The Commission's Order did not require the Agency to provide Petitioner with such documentation. The Agency, of course, may choose to provide Petitioner with a copy of a letter to IWD. We encourage it to do so. Attorney's Fees Petitioner requests awards of $15,460.00 in attorney's fees and $2,475.00 in costs for accounting services. To the extent that Petitioner is a prevailing party in this petition for enforcement, he must submit his request for fees and costs to the Agency. See 29 C.F.R. § 1614.501(e). We refer the parties to the "Attorney's Fees" Order below. CONCLUSION Accordingly, based on a thorough review of the record; Petitioner's contentions in the Petition for Enforcement, including those not specifically addressed herein; and the Agency's response, the Commission GRANTS IN PART and DENIES IN PART Petitioner's Petition for Enforcement. The Commission REMANDS this matter to the Agency for further processing consistent with this decision and the ORDER below. ORDER The Agency is ordered to take the following actions, to the extent that it has not already done so, within one hundred and twenty (120) calendar days of the date this decision is issued. 1. The Agency shall pay Petitioner $9,935.31 as reimbursement for the health-benefits premiums that the Agency deducted from Petitioner's back pay. 2. The Agency shall provide an explanation, in plain language, of the $1,283.73 "Retire" deduction from Petitioner's back-pay award. 3. The Agency shall provide a full explanation of its calculation of Thrift Savings Plan (TSP) contributions and deductions. The explanation shall identify the contributions and deductions per pay period and the pay rate on which they are based. To the extent necessary, the Agency shall adjust the contribution and deduction amounts and reimburse Petitioner for any amount incorrectly deducted from his back pay. 4. The Agency shall determine the amount of TSP earnings that Petitioner would have accrued absent the discrimination and shall pay him that amount. 5. The Agency shall recalculate Petitioner's net pay in light of the reimbursement for health-benefit premiums and TSP adjustments, if any. 6. The Agency shall recalculate the interest computation, based on the recalculated back pay, and pay Petitioner the additional interest. 7. The Agency shall pay Petitioner $4,159.00 to compensate for the additional tax liability from his receipt of a lump-sum payment of back pay. 8. The Agency shall determine the amount of sick and annual leave Petitioner would have earned absent the discrimination and provide the leave to Petitioner. The Agency shall provide a clear explanation of its leave calculation. The explanation shall identify Petitioner's leave balance at the time of his removal, clarify whether the Agency paid Petitioner for any accrued leave when he was removed, and explain how much sick and annual leave Petitioner accrued in each pay period of the back-pay period. 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 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 the date this decision was issued. 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 (K0618) Under 29 C.F.R. § 1614.405(c) and § 1614.502, compliance with the Commission's corrective action is mandatory. Within seven (7) calendar days of the completion of each ordered corrective action, the Agency shall submit via the Federal Sector EEO Portal (FedSEP) supporting documents in the digital format required by the Commission, referencing the compliance docket number under which compliance was being monitored. Once all compliance is complete, the Agency shall submit via FedSEP a final compliance report in the digital format required by the Commission. See 29 C.F.R. § 1614.403(g). The Agency's final report must contain supporting documentation when previously not uploaded, and the Agency must send a copy of all submissions to the Complainant and his/her representative. 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. 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 __7/11/18________________ 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 According to Petitioner's attorney, an OFO Compliance Officer granted the attorney's request for an extension of time within which to file the document. 3 Petitioner uses the term "gross back pay" when referring to the Agency's calculation of $243,165.97. That figure represents the Agency's determination of adjusted gross back pay, not gross back pay. 4 The pay stub also shows a "Retire" deduction of $16.29 for the pay period and a "year-to-date" deduction of $307.30. 5 We note that the Agency may wish to contact the Federal Retirement Thrift Investment Board regarding the calculation of Petitioner's TSP earnings. 6 In his Amended Petition, Petitioner asserts that the pay stub shows a balance of 289.77 hours of sick leave. In an affidavit that he included with his Amended Petition, he asserts that the pay stub shows a sick-leave balance of 293.77 hours. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 0420160025 15 0420160025