George J. Philipp, Complainant,v.Stephen Chu, Secretary, Department of Energy, Agency.

Equal Employment Opportunity CommissionJan 22, 2010
0120073414 (E.E.O.C. Jan. 22, 2010)

0120073414

01-22-2010

George J. Philipp, Complainant, v. Stephen Chu, Secretary, Department of Energy, Agency.


George J. Philipp,

Complainant,

v.

Stephen Chu,

Secretary,

Department of Energy,

Agency.

Appeal No. 01200734141

Hearing No. 140-2003-08387X

Agency No. 02-193-SRO

DECISION

On August 2, 2007, complainant filed an appeal with the Commission to

enforce the agency's October 12, 2007 final order concerning his equal

employment opportunity (EEO) complaint alleging employment discrimination

in violation of the Age Discrimination in Employment Act of 1967 (ADEA),

as amended, 29 U.S.C. � 621 et seq. 29 C.F.R. � 1614.504 (a).

ISSUE PRESENTED

Whether complainant is entitled to a reimbursement for state income taxes

he would not have paid if the agency had not discriminated against him.

BACKGROUND

In his EEO complaint, complainant alleged that he was discriminated

against on the basis of age when he was not selected to one of two

GS-511-14 Lead Auditor positions. At the conclusion of the investigation

of the complaint, complainant was provided with a copy of the report

of investigation and notice of his right to request a hearing before an

EEOC Administrative Judge (AJ). Complainant timely requested a hearing,

and the AJ held a hearing on February 9 and 10, 2004.

In a decision dated May 14, 2004, the AJ found that complainant was

subjected to age discrimination when the agency failed to select him for

a Lead Auditor position. Consequently, the AJ ordered, in pertinent

part, the agency to retroactively place complainant into the position

of Lead Auditor, GS-511-14, effective June 30, 2002, and pay him back

pay on a make whole basis for any earnings he lost as the result of the

discrimination from June 30, 2002, until the date complainant was placed

into the Lead Auditor position.

In a final order dated June 29, 2004, the agency fully adopted the AJ's

decision and order. Consequently, the agency retroactively promoted

complainant to the position of GS-511-14 Lead Auditor effective May

31, 2002. Complainant subsequently filed an EEO complaint (Agency

No. 05-5416-OR-IG) in which he alleged, among other things, that the

agency owed him $6,734.50 because, if the agency had promoted him

in June 2002, he would have moved to Tennessee and would not have

subjected to South Carolina taxes. On September 28, 2005, the agency

dismissed this claim. On June 30, 2006, the AJ presiding over Agency

No. 05-5416-OR-IG informed complainant that the dismissed claim was

clearly a dispute regarding the remedy ordered in the original complaint,

Agency No. 02-193-SRO, and should be appealed to the Commission.

CONTENTIONS ON APPEAL

In an appeal to the Commission dated August 2, 2007, complainant requested

that the Commission enforce the agency's June 29, 2004 final order.

In his appeal statement, complainant argues that the agency failed to

fully remedy its discriminatory actions because it failed to pay him

$6,734.50 plus interest and damages for the additional state taxes he

had to pay from June 30, 2002 until date he was retroactively promoted

to the position. Complainant maintains that had he been promoted to

the Lead Auditor position in Oak Ridge, Tennessee on June 20, 2002,

he would not have paid any state income tax because Tennessee does not

have a state income tax, but, because of the agency's discrimination,

he remained working for the agency in Aiken, South Carolina and was

subjected to South Carolina's state income tax.

Complainant maintains that $6,734.50 represents the additional pay that

he would have received if the unlawful discrimination had not occurred.

Complainant maintains that the agency partially reimbursed him $4,990.92

for South Carolina income tax payments withheld from January 2004 to

October 2004. However, complainant contends that the agency failed

to reimburse him for taxes withheld from June 30, 2002 to December

2003. Complainant further argues that the agency required him to

document the amount that was held from June 30, 2002 to December 2003,

and he submitted documentation to the agency on November 3, 2004 that

demonstrated that he should be reimbursed for an additional $6,734.50,

plus interest.

The agency argues that although it did not fully reimburse complainant

for state taxes that were withheld, he did receive a partial refund of

$4,990.92 for state income taxes paid in 2004. The agency contends

that it was unable to refund the state taxes that were withheld for 2002

and 2003 pursuant to IRS Bulletin No. 15 which states, "[An employer]

may make an adjustment to correct income tax withholding errors only for

quarters during the same calendar year. This is because the employee uses

the amount shown on Form W-2 as a credit when filing his or her income tax

return (Form 1040, etc.)." The agency maintains that the reasoning cited

at IRS Bulleting No. 15 applies to the withholding of state taxes.

ANALYSIS AND FINDINGS

Upon review of this matter, we note that the only evidence in the record

indicating complainant's state income tax liability is a document prepared

by complainant that he contends reflects the amount of state income

taxes he paid for each pay period from July 25, 2002 until January 22,

2004. According to complainant, the document was prepared based upon

his pay stubs and demonstrates that he paid $6,734.50 in state income

taxes from July 2002 until January 2004. Despite the agency's payment

of $4,990.92 to complainant for state income taxes he paid in 2004,

we note that an individual's state and local tax liability includes a

number of factors, including sales, property and excise taxes, and that

various state taxes may also be deductible on federal tax returns. While

Tennessee does not have a state income tax, complainant has not submitted

evidence establishing with requisite certainty his claim that he in fact

incurred a higher tax burden because of the agency's discrimination.

Specifically, complainant put forth no evidence regarding sales, property,

or excise taxes. Thus, we find that complainant failed to prove that

he is entitled to state tax reimbursement. See William S. Steenson

v. Department of Agriculture, EEOC Appeal No. Appeal No. 01A13535

(September 4, 2003) (Commission held that while complainant would not

have paid state income tax absent the discrimination, complainant failed

to prove that he incurred a higher tax burden because he did not put

forth any evidence regarding sales, property, or excise taxes).

CONCLUSION

Accordingly, the Commission finds that the agency has complied with its

final order.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M1208)

The Commission may, in its discretion, reconsider the decision in this

case if the complainant or the agency submits a written request containing

arguments or evidence which tend to establish that:

1. The appellate decision involved a clearly erroneous interpretation

of material fact or law; or

2. The appellate decision will have a substantial impact on the

policies, practices, or operations of the agency.

Requests to reconsider, with supporting statement or brief, must be filed

with the Office of Federal Operations (OFO) within thirty (30) calendar

days of receipt of this decision or within twenty (20) calendar days of

receipt of another party's timely request for reconsideration. See 29

C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for

29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999). All requests

and arguments must be submitted to the Director, Office of Federal

Operations, Equal Employment Opportunity Commission, P.O. Box 77960,

Washington, DC 20013. In the absence of a legible postmark, the request

to reconsider shall be deemed timely filed if it is received by mail

within five days of the expiration of the applicable filing period.

See 29 C.F.R. � 1614.604. The request or opposition must also include

proof of service on the other party.

Failure to file within the time period will result in dismissal of your

request for reconsideration as untimely, unless extenuating circumstances

prevented the timely filing of the request. Any supporting documentation

must be submitted with your request for reconsideration. The Commission

will consider requests for reconsideration filed after the deadline only

in very limited circumstances. See 29 C.F.R. � 1614.604(c).

COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S0408)

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 (Z1008)

If you decide to file a civil action, and if you do not have or cannot

afford the services of an attorney, you may request from the Court that

the Court appoint an attorney to represent you and that the Court also

permit you to file the action without payment of fees, costs, or other

security. See Title VII of the Civil Rights Act of 1964, as amended,

42 U.S.C. � 2000e et seq.; the Rehabilitation Act of 1973, as amended,

29 U.S.C. �� 791, 794(c). The grant or denial of the request is within

the sole discretion of the Court. Filing a request for an attorney with

the Court does not extend your time in which to file a civil action.

Both the request and the civil action must be filed within the time

limits as stated in the paragraph above ("Right to File A Civil Action").

FOR THE COMMISSION:

______________________________

Carlton M. Hadden, Director

Office of Federal Operations

____1/22/10______________

Date

1 Initially, the Commission administratively closed this appeal based

on documentation that indicated that the parties had entered into a

settlement agreement (EEOC Appeal No. 0120064170 May 17, 2007). However,

upon further review, we reopened this matter because referenced settlement

agreement does not pertain to this case.

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0120064213

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

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0120073414