01a45224
07-19-2005
Janice R. Smets, Complainant, v. Gordon R. England, Secretary, Department of the Navy, Agency.
Janice R. Smets v. Department of the Navy
01A45224
July 19, 2005
.
Janice R. Smets,
Complainant,
v.
Gordon R. England,
Secretary,
Department of the Navy,
Agency.
Appeal No. 01A45224
Agency Nos. DON FY97-62583-004 and DON FY97-62583-009
Hearing No. 340-2000-3350X
DECISION
On June 22, 2004, complainant filed an appeal with the Commission
alleging that the agency failed to comply with a final action issued on
August 29, 2003. The record reveals that in January 1997, complainant
filed a complaint alleging that the agency discriminated against her
on the basis of age when on August 20, 1995, she was not selected for
the position of Procurement Analyst, GS-1102-11/12, Vacancy Announcement
number NFCTC95-06, at Port Hueneme, California. Complainant subsequently
filed a complaint on June 27, 1997, alleging that the agency further
discriminated against her on the basis of reprisal (prior EEO activity),
when she was not selected for the position of Procurement Analyst,
GS-1102-13, Vacancy Announcement NFCTC96-36.
On July 14, 2003, an Administrative Judge (AJ) from the Equal Employment
Opportunity Commission entered judgment on her decision finding that
complainant was discriminated against when she was not selected for the
first position (Vacancy Announcement NFCTC95-06), but found complainant
did not prove reprisal discrimination as alleged in her second complaint.
The AJ ordered the following relief:
The agency must offer complainant the position she was denied or a
�substantially equivalent position,� retroactive to August 20, 1995.
The agency shall determine the appropriate amount of back pay,
with interest, and other benefits in the manner prescribed by 5
C.F.R. �550.805. Any back pay complainant receives shall contain a
tax component to compensate complainant for the increased tax liability
resulting from a lump sum payment.
Complainant shall be awarded �subsequent promotions which the complainant
would likely have received had she received the position directly in
issue at the time of the original selection.�
The agency shall post a notice of violation that it will not tolerate
discrimination based on age. The notice shall state that it has been
posted as a result of this Decision, and shall remain posted for a period
of 30 days.<1>
The responsible management official shall receive training regarding the
agency's obligation to maintain a workplace free from discrimination.<2>
On August 29, 2003, the agency issued a final order, implementing the
AJ's decision.
On June 22, 2004, complainant filed this appeal with the Commission
arguing that the agency failed to fully implement its final order.
By electronic mail message from complainant's attorney, dated December
18, 2003, and by electronic message from the complainant on February
20, 2004, complainant notified the agency that because the agency had
not provided a specific salary step level with its December 4, 2003
offer to place complainant in the position of GS-1102-13 Procurement
Analyst, Port Hueneme, California, the offer was not complete and not
in compliance with the final order. Additionally, complainant claimed
that the travel requirements for the offered position differed from the
travel requirements for the original position she had been denied in 1995.
Complainant stated she was aware that the incumbents in the position for
which she would otherwise have been selected absent discrimination did
not travel anywhere near to the �up to 50%� travel requirement stated
in the amended position description the agency had submitted with its
offer of employment in fulfillment of its obligation to place her in a
substantially equivalent position.
By memorandum<3> dated April 16, 2004, complainant acknowledged that
she received $40,673.45 for back pay and interest from the agency.
Complainant alleged that the agency has miscalculated the back pay award
by using incomplete and incorrect rates of interest. Complainant also
alleged that the agency's latest proposal to place her in the GS-1102-13
Procurement Analyst position at the step 6 salary level is not the
appropriate step level.
On appeal, complainant summarily states that the agency has failed to
offer her either the position from which she was discriminatorily rejected
or a substantially equivalent one in light of the step level and travel
requirements of the position offered to her. Complainant further states
that the agency's calculation of her back pay award failed to include an
appropriate amount of interest, did not include an additional amount to
compensate her for the adverse income tax consequences associated with
receipt of a lump sum payment, and was not calculated using appropriate
step level increases.
On appeal, the agency claims complainant's petition for enforcement
is untimely and that the agency is not required to pay any additional
sum to compensate complainant for the tax component as ordered by the
AJ because no legal basis exists for such an award.<4> We deem the
agency's arguments to constitute a decision finding that the agency has
not failed to comply with the agency's August 29, 2003 final action.
EEOC Regulation 29 C.F.R. � 1614.504 provides that a final action that
has not been the subject of an appeal to the Commission or a civil action
is binding on the agency, and that if a complainant believes the agency
has failed to comply with the terms thereof, she shall notify the agency
within 30 days of learning of the alleged noncompliance. If, after 35
days from the agency's receipt of complainant's written allegations of
noncompliance, the complainant is not satisfied with the agency's attempt
to resolve the matter, the complainant may appeal to the Commission for
a determination as to whether the agency the agency has complied with
the terms of the final decision. See 29 C.F.R. � 1614.504(b).
Timeliness
The Commission finds that complainant timely raised her claim that
the agency did not comply with the agency's August 29, 2003 decision.
The agency made a position offer to complainant on January 7, 2004.
Complainant found this offer to not be in compliance with the agency's
August 29, 2003 decision and complainant raised this matter with an EEO
Counselor on January 20, 2004. Therefore, we find that the agency was
on notice of its alleged noncompliance within 30 days of when complainant
knew or should have known of the alleged non compliance.
Position offer
The agency was ordered to offer complainant the position she was denied
or a substantially equivalent position to the position for which she
applied, but was not selected, in 1995. The record reflects that the
agency extended an offer to complainant on December 4, 2003.<5> We
note that the record contains both position descriptions, the one for
which complainant applied in 1995, and the position the agency offered
complainant in 2003 (as amended in 2004). We find the requirements for
travel, �extensive travel� (in the 1995 position description) and �up
to 50% travel� (in the 2003 position description as amended in 2004)
are substantially equivalent.
We concur with complainant that any substantially equivalent position
offered in fulfillment of the agency's obligations pursuant to the AJ's
order must necessarily state the appropriate salary that complainant
will receive upon her acceptance. We do not, however, find that the
record contains adequate documentation regarding the agency's policy
pertaining to the various step level increases that would have accompanied
complainant's subsequent promotions, had she been originally selected
for the 1995 vacancy. Complainant argues that she would have received
two step increases upon her promotion to the 13 grade level, that would
have placed her ultimately, at GS-13, step 9, in 2004. Thus, the record
is inadequate for the Commission to determine whether the agency's offer
of the Procurement Analyst at Grade 13, Step 6, was for a substantially
equivalent position. We shall remand the matter so that the agency may
supplement the record with appropriate evidence of the agency's grade
and step increase policy in such circumstances.
Back Pay
With regard to the payment of back pay, we find that there is insufficient
evidence in the record to determine whether the agency complied with
its final order. The record contains documentation showing that the
agency reconstructed complainant's actual salary from August 20, 1995
through April 3, 2004, and that the record also shows the salary the
agency believes complainant would have received had she been selected
for the position at issue in 1995. The agency calculated the difference
between the two salaries, and computed interest upon the difference.
We note that the agency's calculations do not plainly cite the source of
the interest rates used to determine the interest due on the back pay
award.<6> They do, however, appear to conform to the rates specified
in 5 C.F.R. � 550.805, et seq. as required by 29 C.F.R. �1614.501.
The Commission has held that an award to compensate a complainant for
tax liability stemming from a lump sum back pay award under the ADEA is
permissible. Goetze v. Department of the Navy, EEOC Appeal No. 01991530
(August 22, 2001). Complainant has the burden of establishing the amount
of increased tax liability. Id. (citation omitted). We concur with
complainant that the agency has failed to include a component in its
calculation of her back pay award to compensate her for the negative tax
consequences occasioned by the receipt of a lump sum award. We further
find that complainant must be afforded an opportunity to submit to the
agency evidence of any negative tax consequences she has or will incur
as a result of the lump sum payment.
Accordingly, the agency's decision is VACATED and the matter is REMANDED
to the agency in accordance with the Order herein.
ORDER
Within 30 days of the date this decision becomes final, the agency shall:
Supplement the record with evidence indicating whether it has provided
complainant with an offer of employment, substantially equivalent
to the position of Procurement Analyst, GS-1102-11/12, Port Hueneme,
California, she was discriminatorily not selected for in August 1995.
Such an offer shall explicitly state the salary complainant would receive
upon acceptance of the offer.
Supplement the record with evidence of the agency's promotion and salary
policies and other documents relied on by the agency to reconstruct
complainant's back pay award, and specifically pertaining to the effective
dates of within grade increases complainant is likely to have enjoyed
had she been selected for the position at issue in August 1995.
Supplement the record with specific information on how back pay and
interest are calculated (from August 20, 1995 through the date complainant
either accepts or declines the offer of employment described in provision
1 of this Order) and the source of the rate used to compute interest.
Request that complainant supply the agency with evidence of any negative
tax consequences she incurred or is likely to incur as a result of
receiving the lump sum back pay award.
Supplement the record with evidence of the specific amounts paid to
complainant in addition to the sums described herein, to compensate her
for the tax consequences of receiving a lump sum payment in compliance
with the agency's August 29, 2003 final order.
Issue a decision on complainant's claim of agency noncompliance.
A copy of the agency's decision must be sent to the Compliance Officer
as referenced herein.
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.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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 19848,
Washington, D.C. 20036. 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 (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
July 19, 2005
__________________
Date
1The agency's compliance with this provision
is not at issue.
2The responsible management official has since left the agency.
3Complainant initially sought counseling in January 2004, and subsequently
filed a new complaint, dated April 16, 2004, accompanied by a three-page
memorandum which detailed her allegations that the agency had failed
to fulfill its obligations as ordered by the Administrative Judge.
That complaint is the subject of a pending appeal filed by complainant
concurrently with the instant appeal, docketed as EEOC Appeal
No. 01A44520.
4We note the agency's August 29, 2003 final decision fully implemented
the AJ's decision and the agency filed no appeal with the Commission
regarding any aspect thereof.
5The agency tendered this offer again by letter dated January 7, 2004,
that included an amended position description containing the �up to 50%�
travel requirement.
6The agency's statement on appeal cites to the agency's source, however,
nothing in the record indicates this specific information was included
with the documentation available to complainant when she received the
agency's payment.