[Redacted], Lenard H., 1 Petitioner,v.Denis R. McDonough, Secretary, Department of Veterans Affairs (Veterans Health Administration), Agency.Download PDFEqual Employment Opportunity CommissionFeb 15, 2022Appeal No. 2019001566 (E.E.O.C. Feb. 15, 2022) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Lenard H.,1 Petitioner, v. Denis R. McDonough, Secretary, Department of Veterans Affairs (Veterans Health Administration), Agency. Petition No. 2021004110 Appeal No. 2019001566 Agency No. 200H-0561-2017-105165 DECISION ON A PETITION FOR ENFORCEMENT On July 14, 2021 the Equal Employment Opportunity Commission (EEOC or Commission) docketed a petition for enforcement to examine the enforcement of an Order set forth in EEOC Appeal No. 2019001566 (May 12, 2020). BACKGROUND In the underlying complaint, Complainant alleged that the Agency discriminated against him based on his race (Caucasian), national origin (Puerto Rican), age (53), and reprisal (prior protected EEO activity) in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq. and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq, when he was advised that he was not selected for the position of Detective and when he was not rotated off dayshift. The claims were accepted and investigated. The Agency issued a final agency decision on November 28, 2018, determining that Petitioner failed to prove that he was subjected to discrimination or reprisal as alleged. In the appellate decision, the Commission reversed the Agency’s decision regarding the first claim and affirmed the Agency’s decision regarding the second claim. To remedy the discrimination, the Commission ordered the Agency, among other things, to take the following remedial action: 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. 2021004110 2 1. Within 60 calendar days from the date this decision is issued, the Agency shall extend to Complainant a written offer of promotion to the Detective position within his geographical area, retroactive to August 3, 2017. Complainant shall be provided 15 calendar days from receipt of this offer to decide whether to accept the position. Failure to respond within 15 days will be construed as rejection of the offer. If Complainant accepts the offer, he shall be retroactively promoted to the grade level he would have occupied at the date of promotion and awarded back pay as prescribed in 5 C.F.R. § 550.805. Back pay shall be computed from August 3, 2017 until the date he begins the Detective position. If Complainant rejects this offer, he shall be awarded back pay from August 3, 2017, through the date he rejects the offer. Complainant has a duty to mitigate his damages. 2. The Agency shall determine the appropriate amount of back pay, with interest, and all other benefits due Complainant pursuant to 29 C.F.R. § 1614.501. Complainant is entitled to any benefits to which he would have been entitled but for the discrimination, as well as expected promotions throughout the period, i.e., step increases and grade increases. 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 enforcement or clarification must be filed with the Compliance Officer at the address referenced in the statement entitled “Implementation of the Commission's Decision.” 3. The Agency shall also pay compensation for the adverse tax consequences of receiving back pay as a lump sum. Complainant has the burden of establishing the amount of increased tax liability, if any. Once the Agency has calculated the proper amount of back pay, Complainant shall be given the opportunity to present the Agency with evidence regarding the adverse tax consequences, if any, for which Complainant shall then be compensated. The matter was assigned to a Compliance Officer and docketed as Compliance No. 2020003434 on May 15, 2020. The Agency provided an interim compliance report on February 22, 2021. Within this report the Agency provided supporting documentation of compliance regarding the offered Detective position. The Agency offered the position to Petitioner on July 2, 2020. He accepted the position on July 16, 2020. Additionally, the Agency produced the promotion SF-50 with an effective date of August 3, 2017. The Agency also indicated that the back pay, tax consequences and interest were pending Defense Finance and Accounting Service (DFAS) payment. Lastly, the report included documentation of compliance with the other ordered items such as training, consideration of discipline, and posting the required notice. 2021004110 3 Petitioner’s petition for enforcement asserts that the Agency has not fully complied with the Commission’s order. Specifically, Petitioner alleges that the Agency has not produced documentary evidence to support the backpay award. Petitioner claims that the Agency failed to produce documentary evidence of the selectee’s (C1) pay, promotion, and benefit history rendering it impossible to determine the accuracy of the backpay award. Further, Petitioner claims he is entitled to the use of a government vehicle or in the alternative be paid for gas and maintenance associated with the use of his own vehicle. Additionally, Petitioner contends that the Agency is repaying backpay pertaining to K9 maintenance overtime in installments with future paychecks rather as part of his lump sum backpay payment. Finally, Petitioner states that the Agency has not complied with the portion of the order that includes tax consequence. ANALYSIS AND FINDINGS Backpay Not Supported by Documentary Evidence The purpose of a back-pay award is to restore to a complainant the income he would have otherwise earned but for the discrimination. See Albemarle Paper Co. v. Moody, 442 U.S. 405, 418-19 (1975); Davis v. U.S. Postal Serv., EEOC Petition No. 04900010 (Nov. 29, 1990). Gross backpay should include all forms of compensation and must reflect fluctuations in working time, overtime rates, penalty overtime, Sunday premium and night work, changing rate of pay, transfers, promotions, and privileges of employment to which the petitioner would have been entitled but for the discrimination. See Ulloa v. U.S. Postal Serv., EEOC Petition No. 04A30025 (Aug. 3, 2004) (citing Allen v. Dep't of the Air Force, EEOC Petition No. 04940006 (May 31, 1996)). The appropriate method of determining the promotions, awards, overtime etc. that Petitioner would have likely received, absent discrimination, is to examine the pay of similarly situated employees during the relevant period. See Sanders v. U.S. Postal Serv., EEOC No. 04990018 (Apr. 23, 2001), citing Sanchez v. U.S. Postal Serv., EEOC Appeal No. 01975022 (Oct. 28, 1999); Hanns v. U.S. Postal Serv., EEOC Petition No. 04960030 (Sept. 18, 1997); Allen v. Dep't of the Air Force, EEOC Petition No. 04940006 (May 31, 1996). It is undisputed that C1 is similarly situated to Petitioner. Accordingly, we agree that C1’s pay history is relevant to the calculation of backpay. A final determination of backpay cannot be made until the Agency provides documentary evidence of C1’s pay history during the relevant timeframe. Accordingly, since this documentation is not in the record, it is impossible to determine if the backpay calculations are accurate. Accordingly, we find that the Agency has not fully complied with our Order. Use of a Government Vehicle Petitioner is entitled to every benefit of employment that C1 (i.e., similarly situated employees) had received during the backpay period. Accordingly, the Agency must produce all relevant documentary evidence pertaining to C1’s use of a government vehicle. 2021004110 4 To the extent that C1 had the benefit of a government vehicle during the backpay period, Complainant is entitled to the value of that benefit as part of his backpay. If the position continues to include the benefit of a government vehicle, Petitioner shall be given a government vehicle, moving forward. In the event of extenuating circumstances where a government vehicle is not available, Complainant should then be compensated for the use of his own vehicle. Retroactive K9 Overtime - Installments The undisputed record indicates that Petitioner is being paid a portion of his backpay award pertaining to K9 overtime in installments through each future paycheck. This is an inappropriate manner of compliance with a backpay award which should be paid in a lump sum. Accordingly, we agree with Petitioner and find that the Agency has failed to fully comply with our order. Tax Consequences of Lump Sum Payment An award to cover additional tax liability from a lump sum payment of back pay is available to complainants. See Felicidad S. v. U.S. Postal Serv., EEOC Appeal No. 0120180637 (June 4, 2019); 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). When back pay is awarded in a lump sum, individuals are compensated for the extra tax that they are required to pay as a result of receiving a lump sum pay award, as opposed to the actual amount of taxes that they would have paid if they had received the funds over a period of time, usually several years. Felicidad S. v. U.S. Postal Serv., EEOC Appeal No. 0120180637. It is the receipt of the funds in one lump sum that causes the extra tax liability, not the backpay award itself. However, Petitioner, who bears the burden of proof, must submit evidence showing the difference between the taxes that he paid on the lump-sum payment and the taxes that he would have paid had the salary been earned over time. See Dellinger v. U.S. Postal Serv., EEOC Appeal No. 07A40040 (Sept. 29, 2005) (burden of proof to establish amount of additional tax liability is on complainant); Darlene F. v. Soc. Sec. Admin., EEOC Petition No. 0420140010 (Apr. 8, 2016). Petitioner must show more than the total tax liability arising from receipt of the lump-sum award; he must show the differential between this tax burden and the taxes that he would have paid if he had received the back pay as part of her salary. Johnson v. Envtl. Prot. Agency, EEOC Petition No. 0420060035 (Nov. 5, 2007). Petitioner must “provide exact and detailed calculations showing the amount he is claiming.” Emerson S. v. U.S. Postal Serv., EEOC Petition No. 0420130026 (Nov. 20, 2015). Once the backpay dispute is resolved, the Agency shall afford Petitioner the opportunity to produce such evidence. Accordingly, we do not find that the Agency has failed to comply with this aspect of our Order. Accordingly, based on a thorough review of the record, the Commission GRANTS Petitioner's Petition for Enforcement, in part, and REMANDS this matter to the Agency for further processing consistent with this decision and the ORDER below. 2021004110 5 ORDER Within sixty (60) calendar days of the date of this decision is issued, the Agency shall recalculate the back pay and interest owed to Petitioner in accordance with 29 C.F.R. § 1614.501 and this decision. In doing so, the Agency shall use the precise salary and value associated with the terms and benefits (i.e., K9 overtime, premium pay, government vehicle usage benefit, etc.), that C1 received during the relevant backpay period in order to determine what is owed Petitioner. The Agency shall produce documentary evidence to support such calculations. The Agency shall also produce a detailed statement clarifying how Petitioner's backpay award was calculated. The statement shall consist of a clear and concise, “plain language” statement of the assumptions made, relevant Agency and labor policies and practices, calculations used for the instant matter, and actual calculations applying said formulas and methods. If there is still a dispute regarding the exact amount of back pay and/or benefits, the Agency shall issue a check to Petitioner (to the extent not done so already) for the undisputed amount within thirty (30) days of the date the Agency determines the amount it believes to be due. Petitioner 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. Once both parties agree that the backpay dispute is resolved, the Agency shall afford Petitioner 60 calendar days to submit his claim and supporting documents with respect to his additional tax burden. The burden of proof to establish the amount of additional tax liability, if any, is on Petitioner. The calculation of additional tax liability must be based on the taxes Petitioner would have paid had he received the backpay in the form of regular salary during the backpay period, versus the additional taxes he paid due to receiving the backpay in a lump-sum award. Thereafter, within 60 calendar days after the time period expires for Petitioner to submit his claim for additional tax liability, the Agency shall issue a decision regarding claimed additional tax liability. The Agency is further directed to submit a report of compliance in digital format as provided in the statement entitled “Implementation of the Commission's Decision.” The report shall be submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Further, the report must include supporting documentation of the Agency's calculation of back pay and other benefits due Petitioner, including evidence that the corrective action has been implemented. ATTORNEY'S FEES (H1016) If Petitioner has been represented by an attorney (as defined by 29 C.F.R. § 1614.501(e)(1)(iii)), she 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. 2021004110 6 IMPLEMENTATION OF THE COMMISSION'S DECISION (K0719) 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 Petitioner 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. Failure by an agency to either file a compliance report or implement any of the orders set forth in this decision, without good cause shown, may result in the referral of this matter to the Office of Special Counsel pursuant to 29 C.F.R. § 1614.503(f) for enforcement by that agency. PETITIONER'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. 2021004110 7 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 Petitioner'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 February 15, 2022 Date Copy with citationCopy as parenthetical citation