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