An official legal term most often used when the complainant wins an award to correct the damages to a pre-accident state is called make whole.
The Commission has held that “make whole” relief requires the agency to make retroactive tax-deferred contributions to the complainant’s retirement account (TPS) for the relevant period.
Fiene v. United States Postal Service, EEOC Petition No. 04920009 (September 3, 1992).
Thus, to the extent complainant would have received agency contributions to a retirement fund (TPS) as a component of his salary, he is entitled to have his retirement benefits adjusted as part of his back pay award, including sums which the account would have earned during the relevant period.
Hall v. Department of Justice, EEOC Appeal No. 01A00528 (June 1, 2000)
Howgate v. United States Postal Service, EEOC Petition No. 04990031 (February 4, 2000).
Consequently, the agency should have provided its calculations of the amount of contributions to the agency’s Retirement System that both it and complainant would have made during his absence, as well as the earnings which would have accrued. However, the federal agency merely stated that the total amount of complainant’s contributions and earnings between June 1, 1989 and June 25, 1990 was $5,034.21 and the agency contribution was $2,031.04. While the agency stated that “a contribution to the TVA Retirement System was deducted from [complainant’s] back pay award,” it remains unclear whether complainant was given the opportunity to elect to make a retroactive, tax deferred contribution in the amount which he could have contributed between June 25, 1990 and April 5, 1993.
Agency denied to make whole the complainant with calculation errors and withholding contributions to the retirement system.
Moreover, the agency failed to submit information regarding the amount of contributions it would have made between June 25, 1990 and April 5,1993, and there is no evidence that the agency calculated the earnings which would have accrued on such contributions. Accordingly, the Commission finds that the agency denied complainant “make whole” relief when it failed to (1) permit complainant to elect to make retroactive tax deferred contributions; (2) contribute retroactively to his retirement account; and (3) adjust the account for the earnings which would have accrued during complainant’s absence.
For the reasons set forth above, the agency’ decision is affirmed with respect to back pay and other benefits due complainant and is reversed with respect to contributions to the Retirement System. The agency is ordered to comply with the Commission’s ORDER as stated below regarding contributions to its Retirement System on complainant’s behalf.
ORDER
The agency is ordered to take the following remedial action:
1. Within sixty (60) days of the date this decision becomes final, the agency shall notify complainant that, to the extent he has not already done so, he may make a retroactive, tax deferred contribution to the agency’s Retirement System in the amount which he could have contributed between June 25, 1990 and April 5, 1993. Complainant shall be given thirty (30) days from receipt of the notice to make such a contribution and, should complainant contribute or should he have already done so, the agency shall calculate the amount of the contributions to the agency’s Retirement System that it would have made during the period between June 25, 1990 and April 5, 1993, as well as the earnings which would have accrued on the amounts contributed by both the agency and complainant, and pay such amounts into its Retirement System on behalf of complainant.
2. 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 the amount of the contribution that both it and the complainant would have made during the period he was unjustly terminated, as well as the earnings which would have accrued, and the final amount paid into the agency’s Retirement System on behalf of complainant as articulated above.
ref: Appeal No. 01976157
Agency No. EO4525
Compliance No. 06960560
