Back Pay
In Albermarle Paper Co. v. Moody, the Supreme Court decides that after a court has found an employer guilty of discrimination, the “wronged” employee is presumed to be entitled to back pay.
What is your plan to make sure your agency is giving you your proper award?
Will you seek an accountant, a bookkeeper, investment broker or someone with mathematical accounting skills to review and approve or not approve the agencies math?
According to the record, Complainant and the Agency exchanged regular correspondence regarding implementation of the order. Nevertheless, Complainant, believing the Agency had not fully complied, filed an appeal with the Commission.
On appeal, the Commission initially determined that the Agency provided appropriate documentation showing how it calculated back pay, and Complainant failed to show that the Agency’s back pay calculations or the amount of money withheld was erroneous.
Compliance with Final Agency Decision Addressed. Following a hearing, the AJ found that the Agency discriminated against Complainant on the bases of his age, sex, and prior EEO activity when it failed to select him for a Supervisory Customs Entry Officer position.
The Agency implemented the AJ’s order which required the Agency to, among other things, compensate Complainant for all additional pay and benefits including Agency Thrift Savings Plan (TSP) contributions, pay interest on lost back pay and benefits, and provide Complainant with a detailed statement of its calculations regarding back pay and other benefits.
The Commission, however, found that it was unclear from the record how the Agency calculated the interest on the back pay award. While the Agency claimed that the interest rate fluctuated, it did not specify what interest rates it applied during the relevant periods. In addition, the spreadsheets provided by the Agency did not correspond with the amount the Agency stated that it paid.
With regard to the Agency’s TSP contributions, the Commission found that it was unclear whether the Agency had paid the earnings which Complainant’s account would have accrued but for the discriminatory nonselection.
The Commission noted that, to the extent a complainant would have received contributions to his retirement fund as a component of his salary, he was entitled to have his retirement benefits adjusted as part of his back pay award, including receiving earnings which the account would have accrued during the relevant period.
The Commission stated that the Agency must clearly document its calculations for all TSP contributions, and provide evidence showing whether it had reimbursed the lost earnings to Complainant’s account, as well as pay prejudgment interest on lost back pay and benefits, to the extent the Agency had not yet done so, at the annual percentage rate or rates established by the U.S. Secretary of the Treasury. Yovan v. Dep’t of Homeland Sec., EEOC Appeal No. 0120083601 (October 20, 2010).
