Juan A. Garcia, Petitioner,v.Michael Chertoff, Secretary, Department of Homeland Security, Agency.

Equal Employment Opportunity CommissionJan 26, 2007
04A60026 (E.E.O.C. Jan. 26, 2007)

04A60026

01-26-2007

Juan A. Garcia, Petitioner, v. Michael Chertoff, Secretary, Department of Homeland Security, Agency.


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.