Moonlighting on another job reduces the award

In Appeal A, complainant argues that the agency improperly calculated his back pay when it treated $37,650 in earnings from his business as “interim” earnings for purposes of the back pay calculation.  Complainant contends that this amount constituted “moonlighting” earnings and should not have been deducted from his back pay.

Complainant must supply proper records for reimbursement

This contention is premised on complainant’s argument that he received earnings from his business while he was employed with the agency.  The Commission cannot determine, from the evidence in this record, precisely how much of the referenced $37,650 represented earnings realized as a result of complainant’s increased availability to work in his business between 1990 and 1993.

Any such amounts would properly be deemed “interim” earnings and thus

deductible from back pay.  McNeil v. United States Postal Service, EEOC

Petition No. 04990007 (December 9, 1999).  The Commission finds, however,

that it is not necessary to quantify this amount.  The record reflects an

October 13, 1993, letter from complainant’s counsel in which he indicates

that complainant “did not seek” alternative employment during the period

in question.<5>  It is therefore likely that most (if not all) of the

referenced earnings resulted from complainant’s increased availability to

work in his business after his separation from the agency in January 1990.

Complainant further argues that the agency improperly failed to

withhold $35,317.99 in taxes when it provided his back pay.  However,

the record reflects that this error was corrected on February 13,

1995, when the agency issued him a corrected W-2.  Complainant also

argues that the agency improperly failed to compensate him for costs he

incurred in securing health insurance during his three year separation.

The Commission finds that reimbursement for such costs would be in the

nature of compensatory damages. See Flythe v. Department of the Army,

EEOC Appeal No. 01972258 (April 11, 2000).  However, the 1993 FAD (which

complainant did not appeal) did not provide for such damages.  Therefore,

the agency’s failure to reimburse complainant for the cost of his health

insurance did not constitute non compliance with the 1993 FAD.