[Redacted], Faustino M., 1 Complainant,v.Louis DeJoy, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity Commission

Jun 3, 2021

Appeal No. 2020003978 (E.E.O.C. Jun. 3, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Faustino M.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service, Agency. Appeal No. 2020003978 Agency Nos. 1K-211-0064-08 & 1K-211-0002-11 Hearing Nos. 531-2009-00188X & 531-2012-00186X DECISION On June 17, 2020, Complainant via his attorney filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission) per 29 C.F.R. § 1614.403(a) from a May 15, 2020 final Agency decision (FAD) on his equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. BACKGROUND At the time of events giving rise to this complaint, Complainant was employed by the Agency as a Flat Sorter Clerk, PS-6 at the Incoming Mail Facility in Linthicum, Maryland. Per an August 29, 2016 final Agency action ordering the Agency in part to reinstate Complainant with back pay, on November 2, 2016, the Agency made payment to Complainant for $201,357.34 for back pay. In later correspondence with the Agency, Complainant disputed the Agency’s calculation of back pay, requested tax consequences resulting from receiving years of back pay in the above lump sum payment, and submitted an updated petition for associated attorney fees and costs. After the Agency failed to respond within 35 days, Complainant filed an appeal with the Commission, pursuant to 29 C.F.R. § 1614.504(b). 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. 2020003978 2 In EEOC Request No. 2019003289 (May 30, 2019), the Commission agreed the Agency did not correctly calculate Complainant’s back pay, including sometimes failing to pay at night differential and Sunday premium rates per his schedule, incorrectly not paying for Holiday work, and once double deducting his health care premium. It ordered the Agency to revise its back pay award and pay $93,949 in tax consequences. It also ordered the Agency to pay $9,903.98 in attorney fees and $782.50 in costs for work done on and before the appeal related to seeking this revision of back pay and obtaining these tax consequences. On remand, the Agency paid these fixed sums as ordered, and the parties agreed that the correct amount of revised back pay was $25,760.57. On November 23, 2019, the Agency paid this additional back pay to Complainant. In EEOC Request No. 2019003289, the Commission declined to award Complainant an additional entitlement to tax consequences resulting from receipt of the revised back pay because it anticipated the revised back pay due would be relatively small and to create the conditions to allow the litigation to close Despite the above ruling in EEOC Request No. 2019003289, the parties continued to work on arriving at a figure for additional tax consequences stemming from the lump sum payment of $25,760.57 for revised additional back pay. Complainant’s accountant calculated the amount to be $5,525. For the work related to obtaining these additional tax consequences (prior to the appeal as corrected thereafter) Complainant requests 2.25 hours in attorney fees ($2,022.75) and $410 in costs. In its FAD, citing the ruling in EEOC Request No. 2019003289, the Agency denied paying additional tax consequences and attorney fees and costs related to obtaining them. The instant appeal followed. On appeal, Complainant makes equitable arguments in favor of the above additional tax consequences, attorney fees, and costs. In opposition to the appeal, the Agency reiterates the findings in its FAD and addresses Complainant’s equitable arguments. ANALYSIS AND FINDINGS Under the “law of the case” doctrine, legal or factual determinations once rendered are generally binding in subsequent proceedings in the same case. Eulalia v. Justice (FBI), EEOC Appeal No. 0120171918 (Nov. 29, 2018). The Commission ruled in EEOC Request No. 2019003289 to decline to award Complainant an additional entitlement to tax consequences resulting from his receipt of the revised back pay in a lump sum. As argued by the Agency, Complainant did not file a request for reconsideration.2 2 While this was a decision on reconsideration, the Commission explicitly gave the parties another right to request reconsideration because the decision addressed the merits of Complainant’s contentions addressed therein for the first time. 2020003978 3 Apparently overlooking the above ruling, the parties continued to work on arriving at an additional tax consequences figure. We take this to be a mutual mistake by the parties. We see no reason, equitable or legal, for awarding Complainant additional tax consequences and connected attorney fees and costs. Accordingly, the FAD is AFFIRMED.3 STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0920) The Commission may, in its discretion, reconsider this appellate decision if Complainant or the Agency submits a written request that contains arguments or evidence that 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 for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration. A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within which to submit a brief or statement in opposition. See 29 C.F.R. § 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9 § VII.B (Aug. 5, 2015). Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx. Alternatively, Complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, a complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). 3 We are affirming the portion of the FAD Complainant appealed on the denial of additional tax consequences and connected attorney fees and costs. We are not addressing other determinations made in the FAD. They are not before us. 2020003978 4 Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless Complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together with the 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 (S0610) 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 (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 June 3, 2021 Date