Miguelina S.,1 Complainant,v.Matthew G. Whitaker, Acting Attorney General, Department of Justice, Agency.

Equal Employment Opportunity Commission

Mar 15, 2019

2019000598 (E.E.O.C. Mar. 15, 2019)

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

Miguelina S.,1
Complainant,

v.

Matthew G. Whitaker,
Acting Attorney General,
Department of Justice,
Agency.

Request No. 2019000598

Appeal No. 0720160012

Hearing No. 570-2012-00823X

Agency No. OBD-2011-00556

DECISION ON REQUEST FOR RECONSIDERATION

The Agency requested that the Equal Employment Opportunity Commission (EEOC or
Commission) reconsider its decision in EEOC Appeal No. 0720160012 (September 27, 2018).
EEOC Regulations provide that the Commission may, in its discretion, grant a request to
reconsider any previous Commission decision issued pursuant to 29 C.F.R. § 1614.405(a), where
the requesting party demonstrates 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. See 29 C.F.R. §1614.405(c).

At the time of events giving rise to this complaint, Complainant worked as a Trial Attorney, GS-
14, in the Agency’s Consumer Protection Branch (CPB) of the Civil Division in Washington,
D.C. On June 17, 2011, Complainant filed her complaint alleging discrimination based on sex,
disability, age, and in reprisal for prior EEO activity when on March 2, 2011, the Agency
effectively discharged her without prior notice.

1 This case has been randomly assigned a pseudonym which will replace Complainant’s name
when the decision is published to non-parties and the Commission’s website.
2019000598

2
Upon completion of the investigation of the complaint, Complainant requested a hearing before
an EEOC Administrative Judge (AJ). On May 30, 2014, the AJ granted Complainant’s Motion
for Default Judgment because the Agency significantly delayed the processing of her complaint.
The AJ found that Complainant established a prima facie case of constructive discharge based on
sex, age, and disability. The AJ however did not find a prima facie case of reprisal or sexual
harassment. The AJ also found that Complainant failed to establish her reasonable
accommodation claim. Also, on May 30, 2014, the AJ issued a Hearing Order on Damages,
which provided that the Agency would have 60 days to conduct discovery limited to the scope of
damages related to Complainant’s complaint.

On October 27, 2015, the AJ issued a Ruling and Order on the motions filed by the parties,
including Complainant’s Motion for Recusal of the AJ for the Damages Portion of the EEOC
Proceedings. Therein, the AJ determined that Complainant failed to cooperate during the
discovery phase for damages. The AJ, thus, cancelled the damages hearing and rescinded his
previous finding that Complainant had established a prima facie case of discrimination based on
sex, age, and disability regarding her constructive discharge claim. The AJ however determined
that Complainant was entitled to attorney’s fees and compensatory damages and ordered the
Agency to issue a final decision addressing her entitlement to those remedies.

On December 4, 2015, the Agency issued its final order and simultaneously filed an appeal
challenging the AJ’s default judgment in favor of Complainant and order of damages.
Complainant also filed an appeal challenging portions of the AJ’s decisions and orders.

In EEOC Appeal No. 0720160012 the Commission found that: the AJ did not exhibit undue bias
against Complainant; the AJ did not abuse his discretion when he sanctioned the Agency by
entering default judgment in favor of Complainant because the Agency did not timely complete
the investigation; the AJ did not abuse his discretion when he cancelled the damages hearing;
and the AJ inappropriately rescinded his finding that Complainant established a prima facie case
of discriminatory constructive discharge. The Commission also found that Complainant was
entitled to the full range of applicable personal relief associated with the constructive discharge
claim, including reinstatement, back pay and benefits, compensatory damages, and attorney’s
fees. The Commission also ordered the Agency to provide EEO training to EEO officials and
consider disciplining responsible management officials.

In its request, the Agency, reiterating arguments previously made, argues that it lacks legal
authority to pay the tax enhancement awards the Commission ordered. The Commission
disagrees. The Commission has held that, under both legal and equitable theories, in the case of
a lump sum back pay award, as here, individuals are entitled to compensation for the extra tax
liability 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 their pay over a period of time,
usually several years. Simon V. v. U.S. Postal Service, EEOC Appeal Nos. 0120141013,
0120142516 (Feb. 9, 2017); Emiko S. v. Dept. of Transportation, EEOC Appeal No.
0120161130 (Jul. 19, 2016). We note that Complainant has the burden of establishing the
amount of increased tax liability.
2019000598

3

After reviewing the previous decision and the entire record, the Commission finds that the
request fails to meet the criteria of 29 C.F.R. § 1614.405(c), and it is the decision of the
Commission to deny the request. The decision in EEOC Appeal No. 0720160012 remains the
Commission's decision. There is no further right of administrative appeal on the decision of the
Commission on this request. The Agency shall comply with the Order as set forth herein.

ORDER
1. To the extent that it has not already done so, the Agency shall undertake the following
actions: Within 120 calendar days from the date this decision is issued, the Agency shall
offer Complainant reinstatement into her former Trial Attorney position, retroactive to
the effective date of Complainant’s discharge, reportedly March 3, 2011, with all the
rights, benefits, and privileges of that term position. The Agency shall afford
Complainant 15 days to determine whether to accept reinstatement. Should Complainant
reject the offer of reinstatement, Complainant’s entitlement to back pay shall terminate as
of the date of rejection.
2. Within 120 calendar days from the date this decision is issued, the Agency shall
determine the appropriate amount of back pay, with interest, and other benefits due to
Complainant, pursuant to 29 C.F.R. § 1614.501. The back pay award shall reflect all
career ladder promotions to which an employee in Complainant’s position who
performed in a fully successful manner was entitled. The Complainant shall cooperate in
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 and/or benefits, the Agency shall issue a check to the
Complainant for the undisputed amount within 90 calendar days of the date the Agency
determines the amount it believes to be due. The Complainant may petition for
enforcement or clarification of the amount in dispute. The petition for clarification or
enforcement must be filed with the Compliance Officer, at the address referenced in the
statement entitled, “Implementation of the Commission’s Decision.”
3. The Agency shall also pay compensation for the adverse tax consequences of receiving
back pay as a lump sum. Complainant has the burden of establishing the amount of
increased tax liability, if any. Once the Agency has calculated the proper amount of back
pay, Complainant shall be given the opportunity to present the Agency with evidence
regarding the adverse tax consequences, if any, for which Complainant shall then be
compensated.
4. Within 120 calendar days from the date this decision is issued, the Agency will conduct
and complete a supplemental investigation on the issue of Complainant’s entitlement to
compensatory damages and will afford her an opportunity to establish a casual
relationship between her termination and pecuniary or non-pecuniary losses, if any.
Complainant will cooperate in the Agency’s efforts to compute the amount of
compensatory damages and will provide all relevant information requested by the
2019000598

4
Agency. The Agency will issue a final decision on the issue of compensatory damages.
29 C.F.R. § 1614.110. The final decision shall contain appeal rights to the Commission.
The Agency shall submit a copy of the final decision to the Compliance Officer at the
address set forth herein.
5. Within 120 calendar days from the date this decision is issued, the Agency shall
determine Complainant’s entitlement to attorney’s fees and costs as indicated below in
Order H1016. Along with its determination on compensatory damages, the Agency will
issue a final decision on the issue of attorney’s fees. The final decision shall contain
appeal rights to the Commission.
6. Within 180 calendar days from the date this decision is issued, the Agency shall provide
at least two hours of training to all EEO officials regarding their case processing
responsibilities, with a special emphasis on the importance of abiding by regulatory
mandates and time limits.
7. The Agency shall consider taking disciplinary against responsible management officials
with regard to Complainant’s constructive discharge. The Agency shall report its
decision. 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
reasons(s) for its decision not to impose discipline. If the responsible management
officials are no longer in the Agency’s employ, the Agency shall furnish evidence of their
departure date(s).
8. The Agency shall post the notice referenced in the paragraph below entitled, “Posting
Order.”
The Agency is further directed to submit a report of compliance, as provided in the statement
entitled “Implementation of the Commission’s Decision.”
POSTING ORDER (G0617)
The Agency is ordered to post at its Consumer Protection Branch (CPB) facilities in Washington,
D.C. copies of the attached notice. Copies of the notice, after being signed by the Agency's duly
authorized representative, shall be posted both in hard copy and electronic format by the
Agency within 30 calendar days of the date this decision was issued, and shall remain posted for
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 as directed in the paragraph entitled "Implementation of the
Commission's Decision," within 10 calendar days of the expiration of the posting period. The
report must be in digital format, and must be submitted via the Federal Sector EEO Portal
(FedSEP). See 29 C.F.R. § 1614.403(g).

2019000598

5

ATTORNEY'S FEES (H1016)
If Complainant has been represented by an attorney (as defined by 29 C.F.R.
§ 1614.501(e)(1)(iii)), 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 the date this decision was issued. 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 (K0618)
Under 29 C.F.R. § 1614.405(c) and § 1614.502, compliance with the Commission’s corrective
action is mandatory. Within seven (7) calendar days of the completion of each ordered
corrective action, the Agency shall submit via the Federal Sector EEO Portal (FedSEP)
supporting documents in the digital format required by the Commission, referencing the
compliance docket number under which compliance was being monitored. Once all compliance
is complete, the Agency shall submit via FedSEP a final compliance report in the digital format
required by the Commission. See 29 C.F.R. § 1614.403(g). The Agency’s final report must
contain supporting documentation when previously not uploaded, and the Agency must send a
copy of all submissions to the Complainant and his/her representative.
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.
COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (R0610)
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
2019000598

6
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 (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may
request permission from the court to proceed with the civil action without paying these fees or
costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may
request the court to appoint an attorney for you. You must submit the requests for waiver of
court costs or appointment of an attorney directly to the court, not the Commission. The
court has the sole discretion to grant or deny these types of requests. Such requests do not alter
the time limits for filing a civil action (please read the paragraph titled Complainant’s Right to
File a Civil Action for the specific time limits).

FOR THE COMMISSION:

______________________________ Carlton M. Hadden’s signature
Carlton M. Hadden, Director
Office of Federal Operations

March 15, 2019
Date