[Redacted], Pamela R., 1 Complainant,v.Marcia L. Fudge, Secretary, Department of Housing and Urban Development, Agency.

Equal Employment Opportunity Commission

Jul 21, 2021

Appeal Nos. 2020000509, and, 2020000510 (E.E.O.C. Jul. 21, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Pamela R.,1 Complainant, v. Marcia L. Fudge, Secretary, Department of Housing and Urban Development, Agency. Appeal Nos. 2020000509 and 2020000510 Hearing Nos. 570-2016-01155X and 570-2017-00389X Agency Nos. HUD-0004-2016 and HUD-0064-2016 DECISION Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s May 21, 2019 final order concerning two equal employment opportunity (EEO) complaints claiming employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq. BACKGROUND During the period at issue, Complainant worked as a Senior Budget Analyst at the Agency’s Office of Budget and Financial Management, Public and Indian Housing in Washington, D.C. On November 20, 2015 and June 26, 2016, Complainant filed two formal EEO complaints.2 The formal complaints consisted of the following claims: 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. 2 The record indicates that Complainant requested a hearing before an EEOC Administrative Judge (AJ) who assigned separate hearing numbers for each complaint, but the AJ consolidated the complaints for one hearing. Therefore, the claims are listed as presented in the AJ’s final decision. 2020000509, 2020000510 2 1. Whether the Agency discriminated against Complainant based on race (African- American), sex (female), and in reprisal for protected EEO activity by subjecting her to a hostile work environment when, from February 2014 through August 26, 2015, Complainant’s supervisor subjected her to sexual harassment including unwelcome comments and text messages of an explicit sexual nature. 2. Whether the Agency subjected Complainant to reprisal for complaining about sexual harassment when she was placed on administrative leave shortly after reporting the ongoing sexual harassment. 3. Whether the Agency discriminated against Complainant based on sex, race, and in reprisal for prior protected EEO activity, when on September 1, 2015, the Agency did not promote her to the position of Supervisory Budget Analyst, GS-0560-15, advertised under vacancy announcement number 15-HUD-1025. 4. Whether the Agency engaged in reprisal for prior protected EEO activity and subjected Complainant to continual harassment creating a hostile work environment. Examples of this harassment include, but are not limited to, the following matters: a. On February 23, 2016, Complainant’s supervisor informed the American Federation of Government Employees (AFGE), Local 467 that she proposed to move Complainant on March 9, 2016 from an office to a cubicle to work among other Senior Budget Analysts. b. On February 2 and 10, 2016, Complainant’s supervisor sent emails reintegrating Complainant’s new assignments and responsibilities in the Office of Budget and Financial Management (OBFM), even after Complainant informed him that she had previously served in a Senior Advisory role since 2009. c. On February 1, 2016, Complainant was informed she would not be returning to the position of Acting Director for the Budget Administration Division (BAD), but would instead return to her former position of GS-14 Senior Budget Analyst. d. The Acting Budget Director, began her first meeting upon return from administrative leave by asking, “So, did you enjoy your paid vacation on administrative leave?” The Acting Budget Director then assigned Complainant to a junior-level account portfolio (Operating Fund and Capitol Fund) that was previously assigned to a GS-13 (Complainant states no GS-14 has been assigned this junior-level account portfolio since she came to OBFM in 2009). e. Since February 1, 2016, Complainant has not heard back from senior management regarding the offensive and derogatory statement her supervisor made regarding her 4 and one-half month stint of administrative leave. 2020000509, 2020000510 3 f. On February 16, 2017, Complainant’s supervisor issued a written warning alleging inappropriate conduct in the workplace. 5. Whether the Agency discriminated against Complainant based on race, sex, and in reprisal for prior protected EEO activity when, in June 2015, the Agency did not select Complainant for a promotion to Supervisory Budget Analyst, GS-15, advertised under vacancy announcement number MP 15-100-OS. 6. Whether the Agency discriminated against Complainant based on race, sex, and in reprisal for prior protected EEO activity when: a. in April 2016, the Agency failed to select Complainant for the position of Director (GS-15), Budget Administrative Division (16-HUD-135); b. the Agency failed to issue Complainant her Fiscal Year 2015 Final Performance Rating for the position of Director, Budget Administrative Division for the period of October 1, 2014 through September 30, 2015; and c. the Agency summarily demoted Complainant from the position she held in OBFM since 2009. 7. Whether the Agency discriminated against Complainant based on reprisal for prior protected EEO activity when the Agency did not select her for the position of Director (SES), Office of Budget and Financial Management, vacancy announcement ER-16-026, a position to which Complainant applied on August 10, 2016. After an investigation into the accepted claims,3 the Agency provided Complainant a copy of the report of investigation and notice of right to request a hearing before an EEOC Administrative Judge (AJ). Complainant timely requested a hearing. Following a consolidated hearing held on December 4, 6, and 10, 2018, the AJ issued a final decision on May 14, 2019, finding that Complainant had proven that the Agency was liable for supervisory sexual harassment which resulted in Complainant’s non-selection for a supervisory position in June 2015. For the remaining claims, the AJ found no discrimination. Regarding remedies, the AJ ordered the Agency to: 1. post a notice for no less than 60 days regarding the finding of discrimination; 3 The record indicates that a report of investigation was only completed for Agency No. HUD- 0004-2016 (Hearing No. 570-2016-01155X). However, the record for Agency No. HUD-0064- 2016 (Hearing No. 570-2017-00389X) was developed through discovery and a hearing before the EEOC Administrative Judge. 2020000509, 2020000510 4 2. retroactively promote Complainant to the position of Director, BAD/GS-15, or a mutually agreeable substantially equivalent position, effective July 26, 2015 through her separation from the Agency on October 18, 2018; 3. pay Complainant back pay and all associated benefits plus applicable interest, in accordance with EEOC Management Directive 110, Chapter 11, Section III (August5, 2015) and 5 C.F.R. § 550.805, for the difference between the rate at which she was paid and the rate she would have been paid in the position of Director, BAD, from July 26, 2015 through the date of her separation from the Agency, October 28, 2018; 4. Pay Complainant $291 in pecuniary damages and $75,000 in non-pecuniary compensatory damages; and 5. Pay Complainant’s attorney $64,988.76 in attorney fees and $2,563.40 in costs. On May 21, 2019, the Agency issued a final order implementing the AJ’s decision. The instant appeal followed. Complainant, through counsel, filed two separate appeals on the same day regarding the instant complaint. In the first appeal (2020000509), Complainant argues, in a September 4, 2019 appeal brief, that the Agency improperly withheld taxes from her compensatory damage award. Complainant requests that the Commission order the Agency to pay Complainant the full amount of compensatory damages without any tax withholding, and to compensate Complainant for additional attorney’s fees and costs incurred from the instant appeal. In the second appeal (2020000510), Complainant argues that the Agency failed to timely provide the remedies the AJ granted within 90 days of the Agency’s May 21, 2019 final order. Complainant explained that the Agency should have complied with the AJ’s order on or before August 19, 2019, but that the Agency failed to do so. Specifically, Complainant states that the Agency failed to timely pay Complainant the backpay, benefits and interest pursuant to the AJ’s order, and failed to demonstrate good cause for the delay. Complainant requests that the Commission order the Agency pay Complainant’s attorney’s fees and costs associated with the instant appeal. ANALYSIS AND FINDINGS Withheld Taxes Complainant argues that taxes should not have been withheld from her award of compensatory damages. The record indicates that the AJ awarded Complainant compensatory damages (both pecuniary and non-pecuniary) in the amount of $75,291. However, after taxes were withheld by the Agency, Complainant’s net amount received was $51,461.40. Complainant argues that the payment of wages, not compensatory damages, are subject to tax withholdings. 2020000509, 2020000510 5 As an initial matter, we note that it is undisputed that the Agency paid Complainant the compensatory damages award within the timeframe required by the AJ’s order. It is also clear that the AJ’s remedial order did not address the issue of whether or not taxes should be withheld from the award. Therefore, on its face, there is no basis for a finding that the Agency has failed to comply with the AJ’s order concerning compensatory damages. On this issue, we conclude that the Commission is not the proper forum for a determination as to whether or not the Agency erred in withholding income taxes from the award of compensatory damages. The Commission has long held that the taxation of compensatory damages as gross income is governed by complex tax laws, regulations, rules and guidance, and a tax reporting matter, such as the withholding of taxes from compensatory damages, is between Complainant and the Internal Revenue Service. Jackson v. Department of Homeland Security, EEOC Petition Nos. 04A60003 and 04A60004 (January 27, 2006); Watts v. U.S. Postal Service, EEOC Appeal No. 0120092390 (Oct. 8, 2009) (citing Cozzino v. Dep’t of the Army, EEOC Appeal No. 01A52131 (April 20, 2005); Kessel v. Department of Commerce, EEOC Petition No. 0420110014 (January 31, 2013). Therefore, we decline to rule on Complainant’s claim on appeal that the Agency erred in withholding taxes from her compensatory damages award. Instead, Complainant should raise this issue with the Internal Revenue Service. If her award is not subject to tax, the amount withheld by the Agency will be refunded by the Internal Revenue Service. We also deny Complainant’s request for payment of additional attorney’s fees related to this issue. Delayed Compliance As previously discussed, on May 21, 2019, the Agency issued a final order implementing the AJ’s May 14, 2019 decision and the Agency had 90 days, or until August 19, 2019, to timely comply. The record reflects that the Agency timely paid the compensatory damages award and the attorney’s fees and costs in July 2019; and the Agency also timely posted the notice as required. However, Complainant did not receive backpay until September 9, 2019, approximately 21 days after the deadline, and consequently, Complainant’s retroactive promotion was also delayed. Our review of the record reflects that the Agency provided good cause for the delay. Documentation submitted by the Agency on appeal, indicates that the Agency had to coordinate with the Chief Human Capital Officer (OCHCO), the Bureau of Fiscal Services (BFS), and the National Finance Center (NFC) for the processing of Complainant’s backpay as well as her retroactive promotion to the BAD Director, GS 15, position. Additionally, the Agency encountered obstacles even though the Agency began the process as early as June 11, 2019. First, the Agency learned on June 29, 2019, that Complainant could not be placed in the BAD Director position because it was currently filled by another employee during the period (July 26, 2019 through October 18, 2018) of Complainant’s retroactive replacement. 2020000509, 2020000510 6 The Agency initially thought that the Public and Indian Housing (PIH) officials would request to reinstate a 2015 inactive position description so that Complainant could be placed in the BAD Director position by deadline. However, the BSA informed the Agency Complainant could not be promoted to the BAD Director position because the position was unavailable. Second, the Agency nevertheless learned in July 2019, that there was an available Senior Advisor, GS 15 position available and Complainant could be retroactively promoted from this alternative position. The Agency explained that it contacted Complainant’s counsel on July 19, 2019, notified counsel that the GS 15 supervisory position was unavailable, and inquired whether Complainant would accept being retroactively promoted to an available GS 15 Senior Advisor position as an alternative. Because the Agency indicated that Complainant’s counsel never responded to the inquiry, the Agency resubmitted a request for Complainant’s placement in an inactive GS 15 Supervisory position that was reactivated. Third, although the Agency’s second request for Complainant’s placement in the GS 15 Supervisory position was approved and submitted to the BFS for processing on July 24, 2019, the Agency explained that the inactive Supervisory position had to be reactivated in the BFS system before any changes could be made to Complainant’s personnel records and before any calculations for backpay could being. Fourth, the Agency explained that the BFS could not process Complainant’s package until pay period 15 which would have resulted in an official pay date of August 15, 2019. However, the Agency explained that this timeframe did not include the seven to ten days the NFC allows for payments. Furthermore, on August 15, 2019, the OCHCO informed the Agency that the BFS was still trying to determine the backpay amount and whether the funds would be issued automatically or manually to Complainant. As a result, the Agency determined that it would not be able to meet the August 19, 2019 deadline and requested an extension from Complainant’s counsel on August 19, 2019, which Complainant’s counsel denied. The Agency further indicated that the BFS’ initial projection that Complainant would receive payment by August 26, 2016 was tentative due to the complexity of Complainant’s retroactive promotion. The record reflects that the NFC mailed Complainant’s backpay on September 3, 2019, Complainant received the payment on September 9, 2019, and the Agency provided Complainant details on how the backpay was calculated on September 12, 2019, one day before Complainant’s counsel filed the September 13, 2019 appeal brief. Given the circumstances surrounding this case, we find that the Agency has demonstrated that the untimely processing of Complainant’s retroactive promotion and issuance of backpay was neither intentional nor deliberate. We note that the Agency had to collaborate with other financial entities to proceed with this process, delays ensued because the BAD Director, GS 15 position was not vacant, and the Agency had to complete additional steps to reactivate an inactive position to retroactively promote Complainant to the position she preferred. We further note, that the Agency had offered Complainant a mutually agreeable substantially equivalent position (the Senior Advisor, GS 15 position) which was available. 2020000509, 2020000510 7 However, Complainant did not accept this offer and pursued the BAD Director position which remained occupied and unavailable during the time the Agency was required to retroactively promote Complainant. Consequently, we do not find that the Agency’s approximate 21-day delay was unreasonable given the processes the Agency needed to complete to retroactively promote Complainant to the BAD Director position. Therefore, we deny Complainant’s request for attorney’s fees and costs related to this appeal. CONCLUSION Based on a thorough review of the record and the contentions on appeal, we AFFIRM the Agency’s final order on remedies. 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. 2020000509, 2020000510 8 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). 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 July 21, 2021 Date