Raul Rodriguez,
Complainant,

v. 

Dr. James B. Peake,
Secretary,
Department of Veterans Affairs,
Agency.

Appeal No. 0720080064

Agency No. 200I03552007102385

 Hearing No. 510200700070X


DECISION

Following its September 10, 2008 final order, the agency filed a timely
appeal which the Commission accepts pursuant to 29 C.F.R. § 1614.405(a).
On July 25, 2008, an EEOC Administrative Judge (AJ) found that the agency
retaliated against complainant in violation of Title VII of the Civil
Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq., and, inter
alia,  ordered the agency to pay $5,000.00 in nonpecuniary compensatory
damages.  On appeal, the agency accepts the discrimination finding
but asks the Commission to affirm its rejection of the damages award.
In addition, the agency rejects the AJ's decision to the extent that
decision directs the agency to provide EEO training for all managerial and
supervisory personnel at the agency's San Juan facility.  Instead, the
agency contends that only the management official (RMO) responsible for
the discrimination should be required to take EEO training.  Complainant
also timely appealed the agency's FAD and requests an unspecified increase
in the AJ's award of compensatory damages.  In addition, complainant seeks
"favorable consideration with tax exemption."

As regards the issue of taxation, we note that while an award to cover
additional tax liability from a lump sum payment of back pay is available
to complainants, see generally 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),
the Commission has not recognized any entitlement to awards to cover
tax liability for compensatory damages.  In Williams v. Department
of Veteran's Affairs, EEOC Petition No 040040047 (June 30, 2005) the
Commission found that:

in a case of a lump sum back pay award, individuals are compensated for
the extra tax they are required to pay as a result of receiving a lump
sum award, as opposed to the actual amount they would have had to pay if
they had received the pay over a period of time, usually several years.
It is the receipt of the pay in one lump sum that causes the extra
tax liability, not the back pay award itself.  The petitioner is still
required to pay taxes.  In the case of compensatory damages and interest,
there is no option to receive partial payments over time.  Thus, there
are no additional negative tax consequences to awards of compensatory
damages and interest, and, therefore, no entitlement to compensation
for such additional negative tax consequences.  

After a review of the record in its entirety, including consideration
of all statements submitted on appeal, it is the decision of the Equal
Employment Opportunity Commission to affirm the final agency order in part
and reverse the order in part, because the Administrative Judge's ultimate
finding, that complainant is entitled to nonpecuniary compensatory damages
in the amount of $5,000.00, is supported by the record.  As regards EEO
training, we agree with the agency that only RMO is required to take
such training.  Accordingly, the agency shall take corrective action in
accordance with this decision and the ORDER below. 

ORDER

The agency, if it has not already done so, is ORDERED to take the
following actions:

(1) Within forty five (45) days of this decision becoming final, the
agency shall offer to place complainant in the same, or a substantially
similar, position to the one he held prior to his removal.  Complainant
shall have fifteen (15) days from receipt of the offer to decide whether
to accept or decline the offer.  Failure to accept the offer within the
15-day period shall be considered a declination of the offer, unless
complainant can show that circumstances beyond his control prevented a
response within the time limit.  
(2) Within seventy five (75) days of this decision becoming final,
the agency shall issue complainant back pay, less interim earnings,
but including interest, and any and all benefits and/or training that
he would otherwise have earned or received but for the prohibited
discrimination, from the time of his removal to the date of his
reinstatement, should complainant accept the offer of reinstatement, or
to the date complainant declines reinstatement, or to the date fifteen
(15) days after complainant's receipt of the reinstatement notice,
should complainant fail to respond to the notice.
(3) Within thirty (30) days of this decision becoming final, the
agency shall expunge from all official agency records any reference to
complainant's termination and negative midterm appraisal of April 24,
2007.
(4) Within forty five (45) days of this decision becoming final, the
agency shall tender complainant nonpecuniary compensatory damages in
the amount of $5,000.00.
(5) Within sixty (60) days of this decision becoming final, the agency
shall take corrective, curative, and preventative action to ensure that
race discrimination and retaliation do not recur, including but not
limited to providing training against discrimination in employment for
RMO.
(6) The agency shall comply with the posting order below.


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 verifying
that the corrective action has been implemented. 

POSTING ORDER (G0900)

The agency, if it has not already done so, is ordered to post at
its San Juan Regional Office facility copies of the attached notice.
Copies of the notice, after being signed by the agency's duly authorized
representative, shall be posted by the agency within thirty (30) calendar
days of the date this decision becomes final, and shall remain posted
for sixty (60) consecutive days, in conspicuous places, including all
places where notices to employees are customarily posted.  The agency
shall take reasonable steps to ensure that said notices are not altered,
defaced, or covered by any other material.  The original signed notice
is to be submitted to the Compliance Officer at the address cited in
the paragraph entitled "Implementation of the Commission's Decision,"
within ten (10) calendar days of the expiration of the posting period.

IMPLEMENTATION OF THE COMMISSION'S DECISION (K0408)

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.


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

January 14, 2009
__________________
Date

 

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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013





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