Raul Rodriguez, Complainant,v.Dr. James B. Peake, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity CommissionJan 14, 2009
0720080064 (E.E.O.C. Jan. 14, 2009)

0720080064

01-14-2009

Raul Rodriguez, Complainant, v. Dr. James B. Peake, Secretary, Department of Veterans Affairs, Agency.


Raul Rodriguez,

Complainant,

v.

Dr. James B. Peake,

Secretary,

Department of Veterans Affairs,

Agency.

Appeal No. 0720080064

Agency No. 200I03552007102385

Hearing No. 510200700070X

DECISION

Following its September 10, 2008 final order, the agency filed a timely

appeal which the Commission accepts pursuant to 29 C.F.R. � 1614.405(a).

On July 25, 2008, an EEOC Administrative Judge (AJ) found that the agency

retaliated against complainant in violation of Title VII of the Civil

Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq., and, inter

alia, ordered the agency to pay $5,000.00 in nonpecuniary compensatory

damages. On appeal, the agency accepts the discrimination finding

but asks the Commission to affirm its rejection of the damages award.

In addition, the agency rejects the AJ's decision to the extent that

decision directs the agency to provide EEO training for all managerial and

supervisory personnel at the agency's San Juan facility. Instead, the

agency contends that only the management official (RMO) responsible for

the discrimination should be required to take EEO training. Complainant

also timely appealed the agency's FAD and requests an unspecified increase

in the AJ's award of compensatory damages. In addition, complainant seeks

"favorable consideration with tax exemption."

As regards the issue of taxation, we note that while an award to cover

additional tax liability from a lump sum payment of back pay is available

to complainants, see generally Van Hoose v. Department of Navy, EEOC

Appeal Nos. 01982628 and 01990455 (August 22, 2001); Goetze v. Department

of Navy, EEOC Appeal No. 01991530 (August 22, 2001); Holler v. Department

of the Navy, EEOC Appeal Nos. 01982627 and 01990407 (August 22, 2001),

the Commission has not recognized any entitlement to awards to cover

tax liability for compensatory damages. In Williams v. Department

of Veteran's Affairs, EEOC Petition No 040040047 (June 30, 2005) the

Commission found that:

in a case of a lump sum back pay award, individuals are compensated for

the extra tax 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 the pay over a period of time, usually several years.

It is the receipt of the pay in one lump sum that causes the extra

tax liability, not the back pay award itself. The petitioner is still

required to pay taxes. In the case of compensatory damages and interest,

there is no option to receive partial payments over time. Thus, there

are no additional negative tax consequences to awards of compensatory

damages and interest, and, therefore, no entitlement to compensation

for such additional negative tax consequences.

After a review of the record in its entirety, including consideration

of all statements submitted on appeal, it is the decision of the Equal

Employment Opportunity Commission to affirm the final agency order in part

and reverse the order in part, because the Administrative Judge's ultimate

finding, that complainant is entitled to nonpecuniary compensatory damages

in the amount of $5,000.00, is supported by the record. As regards EEO

training, we agree with the agency that only RMO is required to take

such training. Accordingly, the agency shall take corrective action in

accordance with this decision and the ORDER below.

ORDER

The agency, if it has not already done so, is ORDERED to take the

following actions:

(1) Within forty five (45) days of this decision becoming final, the

agency shall offer to place complainant in the same, or a substantially

similar, position to the one he held prior to his removal. Complainant

shall have fifteen (15) days from receipt of the offer to decide whether

to accept or decline the offer. Failure to accept the offer within the

15-day period shall be considered a declination of the offer, unless

complainant can show that circumstances beyond his control prevented a

response within the time limit.

(2) Within seventy five (75) days of this decision becoming final,

the agency shall issue complainant back pay, less interim earnings,

but including interest, and any and all benefits and/or training that

he would otherwise have earned or received but for the prohibited

discrimination, from the time of his removal to the date of his

reinstatement, should complainant accept the offer of reinstatement, or

to the date complainant declines reinstatement, or to the date fifteen

(15) days after complainant's receipt of the reinstatement notice,

should complainant fail to respond to the notice.

(3) Within thirty (30) days of this decision becoming final, the

agency shall expunge from all official agency records any reference to

complainant's termination and negative midterm appraisal of April 24,

2007.

(4) Within forty five (45) days of this decision becoming final, the

agency shall tender complainant nonpecuniary compensatory damages in

the amount of $5,000.00.

(5) Within sixty (60) days of this decision becoming final, the agency

shall take corrective, curative, and preventative action to ensure that

race discrimination and retaliation do not recur, including but not

limited to providing training against discrimination in employment for

RMO.

(6) The agency shall comply with the posting order below.

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 (G0900)

The agency, if it has not already done so, is ordered to post at

its San Juan Regional Office facility 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.

IMPLEMENTATION OF THE COMMISSION'S DECISION (K0408)

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 (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

January 14, 2009

__________________

Date

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0720080064

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

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