U.S. Equal Employment Opportunity Commission (E.E.O.C.) Office of Federal Operations * * *, COMPLAINANT, v. ERIC K. SHINSEKI, SECRETARY, DEPARTMENT OF VETERANS AFFAIRS, AGENCY. Appeal No. 0120113877 Hearing No. 510-2008-00236X Agency No. 2001-0548-2007103860 May 14, 2014 DECISION On May 21, 2012, Complainant submitted correspondence to the Commission alleging that the Agency was not in compliance with its final order implementing the decision of an EEOC Administrative Judge (AJ) finding discrimination.1 The Commission accepts the appeal in accordance with 29 C.F.R. § 1614.405. BACKGROUND During the period at issue, Complainant worked as a Laundry and Textile Clerk at the Agency's West Palm Beach Medical Center in Palm Beach Gardens, Florida. On or about May 4, 2007, Complainant applied for an Engineering Technician position. The Human Resources Management Specialist (HR1) determined that Complainant was not minimally qualified because he lacked the required specialized experience. Complainant believed that HR1 was biased against him and that he was more qualified than the selectee. On October 12, 2007, Complainant filed a formal complaint alleging that the Agency discriminated against him on the bases of age and disability when on or about July 9, 2007, he was notified that he was not selected for an Engineering Technician position announced under MP Announcement No. 07-68. At the conclusion of the investigation, the Agency provided Complainant 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 April 14, 2009, and issued a decision on February 2, 2010. In his decision, the AJ initially found that Complainant had not shown that the Agency had discriminated against him on the basis of age. The AJ concluded, however, that not only did Complainant establish that the Agency's reasons for not selecting him for the Engineering Technician position were pretext for disability discrimination, but also that had he been referred, he would have been selected as he was the clearly superior candidate. As a result, the AJ found that Complainant had shown that the Agency discriminated against him based on his disability. Turning to remedies, the AJ ordered the Agency to retroactively promote Complainant to a GS-9 Engineering Technician position and awarded back pay and any applicable benefits, effective the date the selectee was placed in the position. Next, the AJ awarded Complainant $10,000.00 in non-pecuniary compensatory damages; $63,195.00 in attorney's fees; and $8,299.00 in costs. In addition, the AJ ordered the Agency to conduct training for the identified responsible management officials. Finally, the AJ ordered the Agency to post a notice at its West Palm Beach facility. On March 18, 2010, the Agency issued a final order fully implementing the AJ's decision. By letter to the Agency's attorney dated March 4, 2011, Complainant's attorney alleged that the Agency had not fully complied with the AJ's order. Specifically, Complainant argued that the original selectee and two other electricians had been promoted to GS-10 levels and that Complainant's employment record should also be corrected to reflect a promotion to GS-10. Next, Complainant alleged that it was not clear from the Agency's documentation how much back pay and interest had been paid and for what time periods. Further, Complainant argued that he had not received back pay and interest due to a retroactive promotion to GS-10. Likewise, Complainant contended that the Agency has not shown that retroactive contributions were made to his Thrift Savings Plan (TSP). Additionally, Complainant argued that he is entitled to compensation for the increase in taxes that he would have to pay in 2010 due to receipt of retroactive compensation in tax years 2007 - 2009. Finally, Complainant requested that the Agency restore 222 hours of annual leave used by Complainant in the course of prosecuting his EEO complaint. On June 30, 2011, the Agency issued a letter of determination regarding Complainant's allegations. Regarding Complainant's retroactive promotion claim, the Agency stated that the AJ did not award Complainant a promotion to the GS-10 grade level and that Complainant was properly promoted to a GS-9, Step 4 Engineering Technician position retroactive to August 5, 2007 as ordered. The Agency noted that Complainant was subsequently promoted to GS-10, but that was a result of Complainant performing additional duties and responsibilities and was not required by the AJ's order. In addition, as to Complainant's back pay claim, the Agency provided Complainant documentary proof that he was paid $18,299.00 which included $7,779.44 in back pay. The Agency noted that the documentation did not address a GS-10 promotion as the AJ did not award such a promotion. As to Complainant's TSP claim, the Agency stated that it had provided Complainant documentation showing that all TSP payments had been made to Complainant's account. The Agency added that there were instances where Complainant was not contributing to TSP, therefore, the Agency contributed no more than its automatic one percent. With respect to Complainant's claim that he was entitled to compensation for the increase in his tax liability, the Agency maintained that the AJ's order did not address or reference taxes. Likewise, regarding Complainant's claim for restoration of annual leave, the Agency stated that the order was silent as to this issue as well. Accordingly, the Agency concluded that it had fully complied with the AJ's order and its own final order implementing it. The instant appeal followed. Complainant makes no new arguments on appeal and reiterates contentions made previously to the Agency. ANALYSIS AND FINDINGS EEOC regulations provide that a final agency action that has not been the subject of an appeal shall be binding on the parties. 29 C.F.R. § 1614.504(a). The regulations further provide that if a complainant believes that an agency has not complied with the terms of the final decision, that he or she shall so advise the Agency within thirty days of the date on which the complainant knew or should have known of the non-compliance. Id. If the complainant is not satisfied with the Agency's response, he or she may appeal to the Commission for determination as to whether the Agency is in compliance with the terms of its final decision. 29 C.F.R. § 1614.504(b). Retroactive Promotion and Back Pay The AJ ordered the Agency to retroactively promote Complainant to the GS-9 Engineering Technician position, effective the date the selectee was placed in the position. The record contains an SF-50 indicating that the Agency promoted Complainant to the GS-9 Engineering Technician position effective August 5, 2007. Complainant claims that he should have been retroactively promoted to the GS-10 level because he later learned that the original selectee and two other electricians were subsequently promoted to higher pay levels due to accretion of duties. Further, Complainant included a May 25, 2010 correspondence from an Agency attorney agreeing that Complainant's record needed to be corrected to reflect this retroactive promotion. The Commission agrees with Complainant. The AJ's award clearly ordered the Agency to include all benefits that Complainant would have received had he been selected, which would have included the accretion of duties promotion in March 2009. As such, the Agency must retroactively promote Complainant to the GS-10 level beginning when the selectee was promoted in March 2009, and re-calculate and pay Complainant the appropriate amount of back pay. TSP Contributions With respect to TSP contributions, the AJ's order included retroactive contributions to Complainant's TSP account and any earnings that would have accrued during the relevant period. Complainant contends that the Agency has not made the ordered retroactive contributions to his TSP account. The record reveals that the Agency calculated and made contributions into Complainant's TSP account for pay periods 16-19 for 2007. The Agency noted that Complainant was not making contributions to his TSP account thereafter; therefore, the Agency was not required to match any contributions above its automatic one percent. Complainant has presented no evidence that he was making any contributions or was otherwise entitled to more than the Agency's automatic 1% automatic contribution. Thus, the Commission cannot find that Complainant is entitled to any further relief with regard to his TSP account. Tax Consequences Complainant alleges that the Agency failed to compensate him for the increase in taxes that he had to pay as a result of receiving the lump sum compensation in 2010 from previous tax years. The Agency determined that Complainant was not entitled to such relief because the AJ's order was silent as to any payment for Complainant's increased tax liability in the back pay award. The Commission has held that where an agency pays back pay and other income payments in a lump sum payment the agency is responsible for a petitioner's proven increased income tax burden. EEOC Appeal No. 01991530 (Aug. 22, 2001); EEOC Appeal Nos. 01982627 & 01990407 (Aug. 22, 2001). In these cases, the Commission held that an award to cover additional tax liability for receipt of back pay in a lump sum is available and that the petitioner bears the burden to prove the amount to which he claims entitlement. Id. In the present case, Complainant, who retains the burden of establishing the amount of his increased tax liability to the Agency, has presented evidence of additional tax liability stemming from the lump sum payment. Accordingly, the Commission finds that Complainant is entitled to reimbursement for the amount of increased tax liability incurred. Annual Leave Finally, Complainant argues that he is entitled to restoration of the annual leave he took to prosecute his EEO complaint. The AJ did not award Complainant annual leave restoration as part of his original order; therefore, the Agency did not restore Complainant's annual leave. The Commission finds that the Agency properly denied Complainant's request to restore his annual leave. CONCLUSION After a review of the record in its entirety, the Commission AFFIRMS in part and REVERSES in part the Agency's letter of determination. This matter is REMANDED to the Agency for further processing in accordance with the ORDER below. ORDER To the extent it has not already done so, the Agency is ordered to take the following remedial actions: 1. Within 120 days of the date this decision becomes final, the Agency shall pay Complainant $10,000.00 in non-pecuniary compensatory damages. 2. Within 120 days of the date this decision becomes final the Agency shall retroactively promote Complainant to the GS-9 Engineering Technician position effective the date the selectee was placed in the position. In addition, the Agency shall retroactively promote Complainant to the GS-10 level, effective the date in March 2009 that the selectee was promoted. 3. Within 120 days of the date this decision becomes final the Agency shall recalculate and pay Complainant back pay (with interest) and all other benefits due pursuant to 29 C.F.R. §1614.501. Specifically, the Agency shall include in its payment a retroactive promotion to the GS-10 level, effective the date in March 2009 when the selectee was promoted. Complainant shall cooperate with 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, the Agency shall issue a check to Complainant for the undisputed amount, and Complainant may contest the Agency's back pay award in accordance with the appellate procedures. 4. After the Agency has calculated and paid Complainant's back pay award, Complainant shall have sixty (60) calendar days following the end of the tax year in which the final payment is received to calculate the adverse tax consequences of any lump sum back pay awards, if any, and notify the Agency. Following receipt of Complainant's calculations, the Agency shall have sixty (60) days to issue Complainant a check compensating him for any adverse tax consequences established, with a written explanation for any amount claimed but not paid. 5. The Agency shall pay Complainant $63,195.00 in attorney's fees and $8,299.00 in costs. 6. Within 120 days of the date this decision becomes final the Agency shall provide training for the responsible management officials regarding their responsibilities under the Rehabilitation Act. 7. The Agency shall consider taking appropriate disciplinary action against all responsible management officials still employed by the Agency. The Commission does not consider training to be disciplinary action. The Agency shall report its decision to the Compliance Officer. If the Agency decides to take disciplinary action, it shall identify the action taken. If the Agency decides not to take disciplinary action, it shall set forth the reason(s) for its decision not to impose discipline. If any of the responsible management officials have left the Agency's employment, the Agency shall furnish documentation of the departure date(s). 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 (G0610) The Agency is ordered to post at its West Palm Beach Medical Center in Palm Beach Gardens, Florida 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. ATTORNEY'S FEES (H0610) If Complainant has been represented by an attorney (as defined by 29 C.F.R. § 1614.501(e)(1)(iii)), he is entitled to an award of reasonable attorney's fees incurred in the processing of this appeal. 29 C.F.R. § 1614.501(e). The award of attorney's fees shall be paid by the Agency. The attorney shall submit a verified statement of fees to the agency -- not to the Equal Employment Opportunity Commission, Office of Federal Operations - within thirty (30) calendar days of this decision becoming final. The Agency shall then process the claim for attorney's fees in accordance with 29 C.F.R. § 1614.501. IMPLEMENTATION OF THE COMMISSION'S DECISION (K0610) 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 77960, Washington, DC 20013. 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 (M0610) 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), at 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 (T0610) This decision affirms the Agency's final decision/action in part, but it also requires the Agency to continue its administrative processing of a portion of your complaint. 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 on both that portion of your complaint which the Commission has affirmed and that portion of the complaint which has been remanded for continued administrative processing. 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 your appeal with the Commission, until such time as the Agency issues its final decision on your complaint. 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 (Z0610) 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 Footnotes 1 In various portions of the record, Complainant's appeal is identified as a Petition for Enforcement. However, a Petition for Enforcement is only available to enforce an order of the Commission itself. Therefore, the Commission will address Complainant's appeal as a claim regarding the Agency's non-compliance with its final order, implementing the AJ's decision.