04A60026
01-26-2007
Juan A. Garcia,
Petitioner,
v.
Michael Chertoff,
Secretary,
Department of Homeland Security,
Agency.
Petition No. 0420060026[1]
Appeal No. 01A32050
Agency No. I956233
DECISION ON A PETITION FOR ENFORCEMENT
On June 8, 2006, the Equal Employment Opportunity Commission (EEOC or
Commission) docketed a petition for enforcement to examine the enforcement
of an order set forth in Juan A. Garcia v. Department of Homeland Security,
Appeal No. 01A32050 (January 7, 2005). This petition for enforcement is
accepted by the Commission pursuant to 29 C.F.R. � 1614.503. Petitioner
alleged that the agency failed to fully comply with the Commission's order
to offer petitioner a Supervisory Border Patrol Agent (Chief Patrol Agent)
position, GS-1896-14, in the Spokane sector, or a substantially equivalent
position, and to offer him a 30-day term as acting Assistant Regional
Director.
Petitioner filed a complaint in which he alleged that the agency
discriminated against him on the bases of national origin (Hispanic),
disability (loss of vision in one eye), and reprisal for prior protected
EEO activity under an EEO statute that was unspecified in the record in
violation of Title VII of the Civil Rights Act of 1964 (Title VII), as
amended, 42 U.S.C. � 2000e et seq., and Section 501 of the Rehabilitation
Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.
Petitioner appealed the agency's final decision (FAD 1) to the Commission,
and in a decision dated January 7, 2005 under Appeal No. 01A32050
(Decision), the Commission found that petitioner established that he was
discriminated against when he was not selected for the position of
Supervisory Patrol Agent in the Spokane Sector in October 1995, and not
selected to serve a 30-day term as acting Assistant Regional Director in
the Central Region in May 1996.
The Commission ordered the agency to offer petitioner the Supervisory
Border Patrol Agent (Chief Patrol Agent) position, GS-1896-14, in the
Spokane sector (Spokane position), or a substantially equivalent position,
and to award back pay, interest and benefits from the date the original
selectee for the position was placed in the position. The agency was
further ordered to offer petitioner the next available 30-day acting
Assistant Regional Director position (30-day position). The order also
specified that the agency was to issue a decision addressing the issue of
compensatory damages and was to provide training to, and consider
discipline for, the management officials involved in the discrimination.
Petitioner requested reconsideration of the decision but the request was
denied on April 28, 2005. The matter was assigned to a Compliance Officer
and docketed as Compliance No. 06A50369. Despite the Commission's Order
requiring a final agency decision (FAD 2) addressing these remedies within
90 days, the agency did not issue FAD 2 until December 2, 2005, which was
four months beyond the 90 day mark and seven months after petitioner's
request for reconsideration was denied.
In FAD 2, the agency awarded $41,354.79 in compensatory damages.
Petitioner timely appealed FAD 2 and that appeal is currently being
addressed under Docket Number 0120061600[2]. The agency further ordered
that petitioner "shall be offered the Supervisory Border Patrol Agent
(Chief Patrol Agent) position, GS-1896-14, in the Spokane sector, or a
substantially equivalent position." The agency's order recognized that
petitioner had retired from the agency but nevertheless ordered that
petitioner be offered the position. See FAD 2, p. 7. However, on May 31,
2006 and June 6, 2006, the agency submitted compliance reports stating that
because petitioner had retired from the agency "in April 2003" the agency
would not be offering him any position, nor would it be offering him a 30-
day term as acting Assistant Regional Director, both of which were required
by both the Commission's Order and the agency's own order from FAD 2.
On June 8, 2006, petitioner submitted the petition for enforcement at
issue. Petitioner contends that the agency initially appeared to comply
with orders from both the Decision and FAD 2 to offer him a substantially
equivalent position to Spokane position by offering him positions as a
Chief Patrol Agent, first in Houlton, Maine, and then in New Orleans,
Louisiana. Petitioner further contends that each time he accepted the
offers he was told that the position had been filled and he was unable to
move into the position. He submitted evidence of the agency's offers, his
acceptance of such offers, and the agency's subsequent notice to him that
despite his acceptance, the position had already been filled. Neither
notice from the agency uses petitioner's retirement as the reason for the
agency's withdrawal of the offer. Petitioner indicates that, to date, he
has not been offered a vacant position.
Petitioner further contends that while the Spokane position was originally
at the GS-14 level, it has since been upgraded to a GS-15 position.
Petitioner argues that any offer by the agency should reflect such an
upgrade and that he should therefore be offered a GS-15 position.
Petitioner next contends that the agency failed to comply with the order to
offer him a 30-day term as acting Assistant Regional Director. In
addition, petitioner contends that FAD 2 erred in referring to mitigation
when addressing back pay and that such a referral is indicative of the
agency's efforts to avoid complying with the Order. Finally, petitioner
requests compensation for the adverse consequences of a lump sum back pay
award.
We note initially that where a remedy orders that a complainant be
retroactively placed in a position, the Commission has held that
complainant's retirement prior to the agency's compliance is not an
automatic bar to such retroactive placement. See Proebstel v Department of
Agriculture, EEOC No. 01A02612 (June 1, 2001). Furthermore, given that the
order in FAD 2 acknowledged that petitioner had retired, yet nevertheless
ordered he be offered a position, the Commission notes that the agency is
seeking to use a compliance report to the Commission to effectively rescind
its own FAD. By recognizing petitioner's retirement while still ordering
he be placed in the position, the Commission finds that the agency has
waived any argument that his retirement precludes compliance with both FAD
2 and our prior Order. We are therefore remanding the issues of placement
in the Spokane position and the 30-day position.
GS Level of the Spokane Position
Petitioner contends that the Supervisory Border Patrol Agent (Chief Patrol
Agent) position has been upgraded from a GS 14 to a GS 15 level. He has
submitted the position description for the New Orleans position, dated May
31, 2005, which shows that the position is at the GS 15 level. In
addition, he has submitted agency correspondence first notifying petitioner
of the Houlton, Maine, position, and subsequently rescinding the offer.
Both notices indicate that the Houlton, Maine position was also at the GS
15 level. Petitioner has therefore shown that the Supervisory Border
Patrol Agent (Chief Patrol Agent) position has been upgraded to the GS 15
level. Accordingly, the agency's offer must also be for a position at the
GS 15 level.
Mitigation of Back Pay
Petitioner argues that FAD 2's reference to mitigation is indicative of the
agency's efforts to avoid complying with the Order. We note, however, that
our Order directed the agency to, among other things, compute "back pay,
with interest and other benefits due [petitioner], pursuant to 29 C.F.R. �
1614.501." Under � 1614.501(b) and (c)(1) back pay is to be computed "in
the manner prescribed by 5 C.F.R. � 550.805." That regulation states that
in computing the net amount of back pay an agency is required to offset
"any outside earnings . . . received by an employee." 5 C.F.R. �
550.805(e)(1). Petitioner's argument is therefore without merit.
Adverse Tax Consequences of Lump Sum Back Pay Award
Petitioner seeks damages for the adverse tax consequences of the back pay
award. The Commission has held that, under both legal and equitable
theories, an award to cover additional tax liability from a lump sum
payment of back pay is available to complainants. Van Hoose v. Department
of Navy, EEOC Appeal Nos. 01982628 and 01990455 (August 22, 2001); Goetze
v. Department of Navy, EEOC Appeal No. 01991530 (August 22, 2001); Holler
v. Department of the Navy, EEOC Appeal Nos. 01982627 and 01990407 (August
22, 2001). Since the agency has not yet paid, much less calculated,
petitioner's back pay amount, petitioner has not yet had the opportunity to
establish his tax liability based on such an award. Accordingly this
matter is remanded to the agency.
Conclusion
The issue of the agency's compliance with its obligation to provide
complainant with the Supervisory Border Patrol Agent (Chief Patrol Agent)
position, in the Spokane sector, or a substantially equivalent position,
the issue of the agency's compliance with its obligation to provide a 30-
day term as acting Assistant Regional Director, and the issues of back pay,
interest, and adverse tax consequences of the back pay award, are all
REMANDED for further action in accordance with the Order below.
ORDER (D0900)
The agency is ordered to take the following remedial action:
(1) Within sixty (60) days of this decision becoming final, the
agency is ordered to offer petitioner the Supervisory Border
Patrol Agent (Chief Patrol Agent) position in the Spokane
sector, or a substantially equivalent position. Such a position
will be at the GS 15 level. Petitioner shall have thirty (30)
calendar days from receipt of the offer to accept the offer.
Failure to accept the offer within the 30-day period shall be
considered a declination of the offer, unless petitioner can
show that circumstances beyond his control prevented a response
within the time limit. If petitioner accepts the offer, the
agency must place him in the position offered.
(2) The agency shall award complainant back pay, interest, and
benefits from the date the original selectee for the Spokane
position was placed in the position, and will be adjusted to
reflect the change the upgrading of the position during the back
pay period. If petitioner declines the offer described in
paragraph (1) of this Order, such back pay, interest, and
benefits shall be calculated to the date he declines the offer.
The agency shall determine the appropriate amount of back pay
(with interest, if applicable) and other benefits due
complainant, pursuant to 29 C.F.R. � 1614.501, no later than
sixty (60) calendar days after the date this decision becomes
final. The 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 the complainant for
the undisputed amount within sixty (60) calendar days of the
date the agency determines the amount it believes to be due.
The complainant may petition for enforcement or clarification of
the amount in dispute. The petition for clarification or
enforcement must be filed with the Compliance Officer, at the
address referenced in the statement entitled "Implementation of
the Commission's Decision."
(2) Petitioner has established entitlement to compensation for any
adverse tax consequences resulting from a lump-sum back pay
award. However, at present petitioner cannot calculate with
precision his full tax liability for the year 2007 until he
receives all of his tax documents for the year, usually by
January 31, 2008. Therefore, after the agency has calculated
and paid petitioner's back pay award, petitioner shall have
until March 1, 2008, to calculate the adverse tax consequences
of the back pay award, if any, and notify the agency. Following
receipt of petitioner's calculations, the agency shall have
forty five (45) days to issue petitioner a check compensating
him for any adverse tax consequences established for tax year
2007, with a written explanation for any amount claimed but not
paid.
(3) The agency shall offer petitioner the next available 30-day
Acting Assistant Regional Director position.
The agency is further directed to submit a report of compliance, as
provided in the statement entitled "Implementation of the Commission's
Decision." The report shall include supporting documentation of the
agency's calculation of back pay and other benefits due complainant,
including evidence that the corrective action has been implemented.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)
Compliance with the Commission's corrective action is mandatory. The
agency shall submit its compliance report within thirty (30) calendar days
of the completion of all ordered corrective action. The report shall be
submitted to the Compliance Officer, Office of Federal Operations, Equal
Employment Opportunity Commission, P.O. Box 19848, Washington, D.C. 20036.
The agency's report must contain supporting documentation, and the agency
must send a copy of all submissions to the complainant. If the agency does
not comply with the Commission's order, the complainant may petition the
Commission for enforcement of the order. 29 C.F.R. � 1614.503(a). The
complainant 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 complainant 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 complainant 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.
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (R0900)
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.
RIGHT TO REQUEST COUNSEL (Z1199)
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 that the Court appoint
an attorney to represent you and that the Court 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 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
January 26, 2007
__________________
Date
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[1] Due to a new Commission data system, this case has been redesignated
with the above-referenced petition number.
[2] Formerly 01A61600.