04a60001
01-27-2006
Keith Brooks, Petitioner, v. Michael Chertoff, Secretary, Department of Homeland Security, Agency.
Keith Brooks v. Department of Homeland Security
04A60001, 04A60002
January 27, 2006
.
Keith Brooks,
Petitioner,
v.
Michael Chertoff,
Secretary,
Department of Homeland Security,
Agency.
Petition Nos. 04A60001; 04A60002
Appeal Nos. 07A10052; 07A10027; 01A12425
Agency No. 98-3077
Hearing No. 160-98-8492X
DECISION ON A PETITION FOR ENFORCEMENT
On December 5, 2005, the Equal Employment Opportunity Commission (EEOC or
Commission) docketed a petition for enforcement to examine the enforcement
of an order set forth in Keith R. Brooks and Orlando V. Jackson
v. Department of Homeland Security, EEOC Appeal No. 07A10051 et. al
(August 14, 2002). 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, specifically,
he contends the agency failed to pay the full amount of compensatory
damages ordered and failed to place him in a position as Senior Customs
Inspector in the Toronto Pre-clearance location. Petitioner also contends
he is owed additional interest on the compensatory damage award and his
attorney's fees from the time of the decision of the EEOC Administrative
Judge's in order to compensate him for the delay in payment.
Petitioner filed a complaint in which he alleged that the agency
discriminated against him on the bases of his race (African-American),
sex (Male), when it did not select him for the position of Senior Customs
Inspector. An EEOC Administrative Judge (AJ) found that the agency had
discriminated against petitioner and awarded him retroactive promotion,
back pay, compensatory damages and attorney's fees. The agency refused
to implement the decision of the AJ and filed an appeal. Additionally,
the agency appealed the AJ's decision on attorney's fees and costs.
Petitioner, in turn, filed a cross- appeal of the AJ's decision regarding
attorney's fees and costs.
The Commission reversed the agency's final order and affirmed the AJ's
decision which found discrimination. As relief, the Commission ordered
the agency to offer petitioner the position of Senior Customs Inspector
in the Toronto Pre-clearance location retroactive to September 14, 1997
together with back pay and interest, compensatory damages in the amount
ordered by the AJ and attorney's fees. The matter was assigned to a
Compliance Officer and docketed as Compliance Nos. 06A30473 and 06A30470
on February 13, 2003. Thereafter, the agency submitted documentation
purportedly in support of its contention that it fully complied with
the Commission's order.
On September 21, 2005, petitioner submitted the petition for enforcement
here at issue. The agency has submitted no additional comments in
opposition or in response to this petition.
Position as Senior Customs Inspector
Petitioner contends that the agency failed to place him in the position
of Senior Customs Inspector in the Toronto location as specified in the
Commission's Order and instead placed him in positions in Maryland and
North Carolina. The record reflects that the agency issued a Standard
Form (SF) 50 which stated that petitioner had been promoted to Senior
Customs Inspector GS-11 with a duty station of Toronto, Ontario as
of September 14, 1997. However, the agency also issued another SF 50
indicating that petitioner was being reassigned to the duty station of
Baltimore, Maryland effective March 28, 1999. Thus, although the agency's
documentation indicates initial placement of petitioner in Toronto,
this was merely a paper transaction since it applied to a time period
in the past and was later changed to reflect petitioner's reassignment
to the Baltimore location. There is no indication that petitioner was
ever physically assigned to the duty station of Toronto as ordered by
the Commission.
The agency did not submit comments in response to this petition and so
we must rely on their representations in correspondence submitted during
the compliance phase of the proceedings. In its correspondence to the
Commission on August 26, 2003, the agency stated that it did not perceive
the Commission's order as requiring the physical transfer of petitioner
to Toronto. The agency believed this to be true because it stated that
the vacancy announcement at issue did not specify any particular location
but only created an opportunity for the applicants to be promoted.
Moreover, the agency contended in this correspondence that the
Commission's Order to physically place petitioner Brooks in Toronto would
violate its Collective Bargaining Agreement and would subject the agency
to an unfair labor practice charge by the National Treasury Employees
Union. The agency argues that assignment to a location in Canada is a
foreign assignment governed by 19C of the Agreement which limits the
�Preclearance tour of duty to a two-year initial assignment with the
possibility of two additional two-year extensions� i.e. a maximum of
six years in pre-clearance. The agency contends that once the six year
maximum assignment is satisfied, the CBA dictates that the employee may
not be selected for Pre-clearance again for another 10 years �as long
as there are other qualified volunteers for the assignment.�<0>
The agency's documentation of the parties' CBA, however, is incomplete and
does not adequately support the agency's action. The document submitted
contains only certain provisions and gives no other indication that it
is the parties' actual agreement, nor does it document that it governs
the petitioner's assignment at the time in question. Additionally, the
agency's statement is not consistent with the language of the vacancy
announcement which specified particular locations where vacancies
existed at the time and which invited applicants to specify their
preference for assignment. The agency also has not raised until now,
the fact that petitioner could not be assigned to a post for which he had
applied because to do so would violate the terms of the CBA. Finally,
even assuming the agency's characterization of the CBA is correct, it
has not documented that complainant had reached the maximum assignment
limitation or that there were �other qualified volunteers� such that
complainant could not be considered.
Compensatory Damages
Petitioner contends that the agency failed to pay him the full amount of
compensatory damages the Commission awarded of $1,000.00 and instead paid
him only $695.50. This, he claims does not comply with the Commission's
Order and as a result, the agency should be ordered to pay him the full
amount. Petitioner thus claims that the agency erred by withholding
amounts for federal and state income taxes. The Commission is not
the proper forum for a determination as to whether the agency erred in
withholding income taxes from an award for compensatory damages and he
should bring this issue to the Internal Revenue Service for resolution.
However, the Commission is aware that at least one court has interpreted
the Internal Revenue Code (26 U.S.C. Section 104(a)(2)) to mean that
damage awards for emotional distress as opposed to physical injury or
sickness, are not excluded from gross income. See e.g. Rivera v. Baker
West, Inc. 430 F.3d 1253 (9th Cir. 2005). We further note that the
Commission has not recognized any entitlement to awards to cover tax
liability for compensatory damages. Williams v. Department of Veterans
Affairs, Petition No. 04A40047 (June 30, 2005).
Based on the foregoing, we conclude the agency was in compliance with
our decision and Order related to the payment of compensatory damages.
Having determined that the agency's payment was correct, the Commission
also concludes that petitioner has given no good reason for additional
interest to be paid on petitioner's compensatory damages award.
Attorney's Fees
Petitioner requests that he be awarded attorney's fees expended in
his pursuit of the agency's compliance with the Commission's Order.
Normally, Title VII authorizes the award of reasonable attorney's fees,
including amounts owed for an attorney's processing of a compensatory
damages claim. 29 C.F.R. � 1614.501(e). There is no question here
that complainant was a prevailing party which would entitle him to
reasonable attorney's fees. Buckhannon Bd. and Care Home Inc. v. West
Virginia Dept. of Health and Human Resources, 532 U.S. 598 (2001);Davis
v. Department of Transportation, EEOC Request No. 05970101 (February
4, 1999) (citing Hensley v. Eckerhart, 461 U.S. 427, 433 (1983)).
Complainant was awarded attorney's fees in our previous order and there
is no dispute these amounts have been paid. The question before us is
whether petitioner should be awarded additional amounts.
The Commission recognizes that attorney's fees should be awarded for
work performed at the appeal stage provided that he prevails during
this phase of the proceedings. Equal Employment Opportunity Management
Directive for 29 C.F.R. Part 1614 (EEO MD-110), ch.11-5 (November 9,
1999). In this regard, complainant was a prevailing party in that the
Commission upheld the AJ's finding of discrimination and affirmed the
award of compensatory damages and attorney's fees. However, there is
nothing in the record to indicate that complainant incurred any additional
attorney's fees, such as his attorney's verified statement of amounts
billed for services rendered. The attorney has the burden of submitting
detailed and contemporaneous time records to ensure that the time
spent was accurately recorded. See 29 C.F.R. � 1614.501(e)(2)(ii)(B);
Bernard v. Department of Veterans Affairs, EEOC Appeal No. 01966861
(July 17, 1998).
As it relates to the Commission's Order at issue, there is no evidence
that the agency failed to comply with our directive to pay attorney's
fees related to the litigation of the complaint up to the appeal stage.
For amounts incurred thereafter, petitioner must first submit a verified
statement of any additional fees related to appeal stage to the agency
for consideration and a final decision.
CONCLUSION
Based on the foregoing discussion, the Commission concludes that the
agency has not shown compliance with our order that petitioner be placed
in the position of Senior Customs Inspector in Toronto Pre-clearance.
Our review of the record supports that the agency has complied with our
directive to pay petitioner compensatory damages and attorney's fees
and consequently, he is not entitled to additional interest.
ORDER
The agency will physically assign complainant to the position of Senior
Customs Inspector in Toronto Pre-clearance within 30 days of the date
this decision becomes final and submit a Report of Compliance as directed
below.
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.
ATTORNEY'S FEES (H0900)
If complainant has been represented by an attorney (as defined by
29 C.F.R. � 1614.501(e)(1)(iii)), he/she is entitled to an award of
reasonable attorney's fees incurred in the processing of the complaint.
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.
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (P0900)
This decision of the Commission is final, and there is no further right
of administrative appeal from the Commission's decision. 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.
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 27, 2006
__________________
Date
0 1Although we require the agency to submit its
Compliance Report to the petitioner, there is no indication that it did so
in this case and there is no response by petitioner to this statement.