[Redacted], Les B., 1 Petitioner,v.Gina M. Raimondo, Secretary, Department of Commerce (National Oceanic & Atmospheric Administration), Agency.

Equal Employment Opportunity Commission

Jan 10, 2022

Appeal No. 2019003393 (E.E.O.C. Jan. 10, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Les B.,1 Petitioner, v. Gina M. Raimondo, Secretary, Department of Commerce (National Oceanic & Atmospheric Administration), Agency. Petition No. 2021003659 Appeal No. 2019003393 Agency No. 54-2017-00251 DECISION ON A PETITION FOR ENFORCEMENT On June 10, 2021, the Equal Employment Opportunity Commission (EEOC or Commission) docketed a petition for enforcement to examine the enforcement of an Order set forth in Les B. v. Dep’t of Commerce, EEOC Appeal No. 2019003393 (Sept. 14, 2020). The Commission accepts this petition for enforcement pursuant to 29 C.F.R. § 1614.503. BACKGROUND At the time of events giving rise to this complaint, Petitioner worked as an Information Technology Specialist, GS-2210-11, at the Agency’s Operational Monitoring Branch (OMB), National Centers for Environmental Prediction (NCEP), National Weather Service (NWS) in College Park, Maryland. Petitioner filed a complaint in which he alleged that the Agency discriminated against him and subjected him to a hostile work environment on the bases of race (African-American), disability (post-traumatic stress disorder), age (61), and in reprisal for prior protected EEO activity. 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. 2021003659 2 In its final decision, the Agency concluded Petitioner demonstrated he was subjected to a hostile work environment on the basis of his disability and in reprisal for requesting accommodation. The Agency awarded Complainant all appropriate back pay, reinstatement to his position or a substantially equal position, and $65,000 in compensatory damages. In, Les B. v. Dep’t of Commerce, Appeal No. 2019003393 (Sept. 14, 2020), the Commission affirmed the Agency’s findings, but increased the compensatory damages award to $85,000. The Commission’s Order also specified, in relevant part, that “the Agency shall offer Complainant permanent employment as an Information Technology Specialist, GS-2210-11, at NCEP, or a substantially equivalent position, retroactive to October 3, 2017. . . . The position offered shall be either (1) located at Silver Spring, Maryland, or (2) located at College Park, Maryland.” The Order also required the Agency to compensate Petitioner “for the adverse tax consequences of receiving back pay as a lump sum. Petitioner has the burden of establishing the amount of increased tax liability, if any.” The matter was assigned to a Compliance Officer and docketed as Compliance No. 2020005254 on September 18, 2020. On June 10, 2021, Petitioner submitted the petition for enforcement at issue. Petitioner contends that the Agency failed to provide him sufficient information to determine the adverse tax consequences he suffered as a result of the back pay award. Specifically, Complainant claims that the monetary amounts identified on the IRS Form W-2 furnished by the Agency does not match his back pay award. Further, Petitioner contends the Agency did not provide him with a breakdown of his back pay award that is sufficiently detailed to allow him to determine the adverse tax consequences. Petitioner also asserts that the Agency did not issue a Form 1099- Misc properly categorizing his award of compensatory damages. In addition, Petitioner claims that the Agency did not reinstate him to a substantially equal position. Petitioner concedes that he received reinstatement to a GS-2210-11 step 3 position but contends that he was “placed in a group of GS-7s and GS-9s.” Petitioner contends he was previously performing time sensitive and time critical assignments but is no longer doing so. Petitioner also argues that the Agency failed to provide him with career tenure retroactive to October 2016, service credit for Federal Service with the U.S. Postal Service, Annual Leave retroactive to October 2016, and updated Forms SF-50. In response, the Agency addresses the amounts identified on Petitioner’s Form W-2 and explains that Petitioner received additional compensation as a result of working for the Agency following his reinstatement in 2019. The Agency points out that Petitioner carries the burden of demonstrating that he suffered adverse tax consequences and argues that Petitioner has not carried this burden. The Agency insists it offered Petitioner a substantially equivalent position. The Agency also rejects Petitioner’s remaining positions. The Agency furnishes a copy of Petitioner’s Form SF 50, dated February 2, 2020, demonstrating that his service computation date dates back to December 13, 2013, and that he received career tenure in October 2016. 2021003659 3 ANALYSIS AND FINDINGS Initially, we find that Petitioner does not refute that the Agency issued a Form SF-50 on February 2, 2020, correcting his service computation date and establishing that he has career tenure. Petitioner also does not provide any evidence demonstrating his entitlement to restoration of annual leave retroactive to October 2016.2 We turn now to Petitioner’s assertion the Agency did not place him in a substantially equivalent position. Petitioner previously worked in a GS-2210-11 position. The record demonstrates that Petitioner accepted the Agency’s offer to reinstate him to a GS-2210-11 position. As our order permitted, the position is located in Silver Spring, Maryland. Thus, the Agency has complied with our order. We do not find persuasive Petitioner’s argument that he is performing different duties than he previously performed. Our order required Petitioner to be placed in a substantially equivalent position, which is what the Agency has done. We also do not find persuasive Petitioner’s contention that the Agency failed to provide him with information sufficient to determine his adverse tax consequences. As our order dictated, Petitioner bore the burden of demonstrating he suffered adverse tax consequences as a result of the back pay award. As further elaborated in Devon H. v. Dep’t of Homeland Sec., EEOC Appeal No. 0120181822 (Sept. 30, 2019), the purpose of awarding additional compensation for adverse tax consequences is in recognition of the fact that an individual may be subject to a higher tax liability because a back pay award means that the individual received in one year an amount that he would have otherwise earned over time. Petitioner “must show more than the total tax liability arising from his 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 his salary. Id., citing Johnson v. Evtl. Prot. Agency, EEOC Petition No. 0420060035 (Nov. 5, 2007). In Devon H., we cited additional decisions that indicated a letter or affidavit from a tax preparer would be sufficient to prove adverse tax consequences. Petitioner did not provide any such evidence in support. Rather, Petitioner argues the Agency did not provide him with sufficient information to allow him to carry his burden. However, as in Devon H., “Complainant is aware of his back-pay award, and he is aware of what his salary was at the time in question.” Thus, Petitioner had sufficient information to compute his increased tax liability. Accordingly, we DISMISS this petition without further enforcement. 2 We note that a large part of Petitioner’s allegations stemmed out of the fact that the Agency charged Petitioner Absent Without Leave (AWOL) instead of allowing him to take Leave Without Pay. The Agency provided evidence it corrected these time entries. There is no evidence in the record that the Agency was required to allow him to accrue leave during these periods. 2021003659 4 COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (S0610) You have the right to file a civil action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. 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. If you file a request to reconsider and also file a civil action, filing a civil action will terminate the administrative processing of your complaint. 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 Complainant’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 January 10, 2022 Date