Sometimes the Administrative Judge will decide to award a retroactive promotion, quality step increase if it helps to honor the judgement to make whole.
A retroactive promotion is a huge award, since most EEOC discrimination claims are thrown out for not timely submitting a claim or the AJ has decided in favor of the agency.
Here are the details from the AJ on appeal regarding a retroactive promotion to a Complainant who requested a quality step increase to GS-13, step 4 as of January 1996. .
B. Amount of Payments
The record shows that complainant was issued a check dated September 4, 1998 in the amount of $3,279.29. Complainant states, and the explanation provided with the check seems to indicate, that the $3,279.29 was payment for merit increases for the EAS 24 MDO retroactive promotion. The record also shows that complainant was issued a separate check dated September 4, 1998 in the amount of $23,583.22. Complainant states that the $23,583.22 payment was for backpay for the EAS 24 MDO retroactive promotion.
Calculation Errors
Complainant argues that the agency miscalculated the salary complainant was due in back pay. Complainant argues that the underpayment in backpay (from an incorrect salary determination) resulted in an underpayment in all other payments due under provision 4 which are based on complainant’s salary. Complainant argues that the agency computed complainant’s backpay by using the “minimum” salary range for the retroactive promotion.
Complainant argues that pursuant to the agency’s Employee and Labor Relations Manual (§413.21), the agency should have used the “maximum” salary schedule for an EAS 24 when computing the backpay.
Back Pay and Statutory interest?
Complainant argues that the backpay owed to him is “$124,685.00 plus statutory interest compounded for each year and rolled into the principle amount.” Complainant also argues that he is due $2,500.00 in merit award differences (for a total lump sum of $127,185.00). Complainant states that the amounts claimed as due by him should now be reduced by the $23,583.22 which has been paid. Complainant does not explain whether his total claimed should also be reduced by the $3,279.29 which was paid to complainant. The record does not clearly show how the Postal Data Center in Minneapolis, Minnesota computed the amounts due to complainant under provision 4 of the agreement. The record does contain a three page document entitled Corrected Salary Progression and numerous Notification of Personnel Actions. Although the Corrected Salary Progression indicates that the backpay was calculated by “slotting only to minimum of EAS-24“, the record does not address how this salary level was chosen for the backpay computation. The agency does not indicate in the Corrected Salary Progression how the amounts of $3,279.29 and $23,583.22 were calculated. The Corrected Salary Progression does not reflect any cumulative totals for backpay, interest, COLA’s, or general increases.
The Commission cannot determine if the agency correctly calculated the amounts due to complainant in provision 4 because the agency has not clearly shown how it calculated those amounts.
Since there were many questions and several possible calculation errors by the agency, the Judge requests full details from the agency, on how they came up with their calculations.
Therefore, the Commission shall remand the matter so that the agency can supplement the record with evidence clearly showing (in a detailed account) how it calculated the amounts it paid to complainant pursuant to provision 4 of the agreement.
(A) With regard to the denial of complainant’s within grade increase in July 1994, the agency shall determine the appropriate amount of back pay, with interest, and other benefits due complainant, pursuant to 29 C.F.R. § 1614.501, no later than sixty (60) calendar days after the date this decision becomes final. The 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 the complainant for the undisputed amount within sixty (60) calendar days of the date the agency determines the amount it believes to be due. The 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.”
The federal agency was stretching when it tried to use the Back Pay Act of 1996 to reduce the promotion of the complainant. There were no other grounds they could find to deny the complainant, yet they tried anyway.
The settlement agreement provided, in pertinent part, that:
(2) Complainant shall have retroactive promotion to GM (FM)-301-15, step 8, effective June 2, 1995, and shall receive back pay and benefits associated with that grade and step from June 2, 1995 until June 2, 1998, subject to standard deductions, including Thrift Savings Program (TSP) Contributions. By letter to the agency dated June 4, 1998, complainant, through his attorney, alleged that the agency was in breach of the settlement agreement. Specifically, complainant alleged that the agency failed to fully comply with provision (2) when on June 2, 1998, complainant was advised that the agency could only retroactively promote him to FM-15, step 5, instead of to step 8, because of restrictions mandated by the Back Pay Act of 1996, as amended.<1> In its September 15, 1998 FAD, the agency concluded that it breached provision (2) of the settlement, but that it complied with the remaining provisions. The agency determined that provision (2) of the agreement is unenforceable because of restrictions in the Back Pay Act of 1966, as amended. The complaint was reinstated for further processing from the point where processing had ceased.
On appeal, complainant through his attorney, argues that the application of the Back Pay Act (BPA) was the only reason presented by the agency why complainant could not be retroactively promoted any higher than FM-15/5. Complainant’s attorney argues that the agency entity that is the party to the settlement agreement (Federal Aviation Administration) is no longer required to follow the Back Pay Act. Complainant’s attorney requests that the Commission reverse the FAD; order the agency to take prompt remedial action to fully implement the settlement agreement to retroactively promote him to FM-15/8, effective 6/2/95, with full pay, interest, and all related entitlements; remand the case to the AJ to conduct proceedings to determine if complainant is entitled to any compensatory damages; and that the agency be ordered to reimburse him for his reasonable attorney’s fees and expenses incurred on appeal. The agency did not raise new contentions in response to complainant’s appeal.
