Professional Documents
Culture Documents
v.
BEFORE
Pamela B. Jackson
Administrative Judge
INITIAL DECISION
On February 14, 2017, the appellant, Marcus D. Smith, filed the instant
claim for damages, seeking compensation for damages he suffered as a result of
the agencys unlawful retaliation. See Smith v. Department of Transportation,
AT-0752-05-0901-I-1 (April 25, 2012). The Board has the authority to award
compensatory damages. Hooker v. Department of Treasury, 63 M.S.P.R. 497,
505 (1994), affd, 64 F.3d 676 (Fed. Cir. 1995).
For the reasons stated below, the appellants request for compensatory
damages is GRANTED.
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The First Petition for Enforcement was filed May 29, 2012.
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The Board has the authority to remedy the adverse tax consequences of a back
pay award.
Both parties acknowledge that the Board has previously and consistently
held since Wilson v. U. S. Postal Service, 38 M.S.P.R. 156 (1988) that it lacks
authority to order a remedy for the tax consequences of a back-pay award. Id. at
57. The appellant points out, however, that Wilson was decided before the 1991
Amendments to Title VII, or the Civil Rights Act of 1991, which allowed for
compensatory damages as part of Title VIIs make whole relief. 42 U.S.C.
1981a(b)(3).
The rationale in Wilson and progeny is that Title VII makes no mention of
damages for incidental or consequential losses which are not a part of the
employment relationship, and the Board, therefore, concluded that it had no
authority to award compensation for the increased tax burden of a back pay
award. Since the 1991 Civil Rights Act, however, the Boards statement
regarding its lack of authority to award compensatory damages under Title VII is
no longer good law. Furthermore, the Board, deferring to the Equal Employment
Opportunity Commissions (EEOC) interpretation of the Civil Rights Act of
1991, has long recognized its authority to award compensatory damages since
Hooker v. Department of Treasury, 63 M.S.P.R. at 505.
Notwithstanding the recognition of its authority to award compensatory
damages under Title VII, the Board has continued to cite Wilson and progeny for
the proposition that it has no authority to order a remedy for the tax consequences
of a back pay award. The Board has continued its unexamined adherence to
Wilson even as the EEOC and federal courts have recognized the right under Title
VII to award compensatory damages to address the adverse tax consequences of
receiving several years of back pay at one time.
For example, in Holler v. Department of Navy, EEOC Appeal Nos.
01990407 and 01982627 (Aug. 22, 2001), the Commission explicitly stated that
the purpose of compensatory damages under Title VII is to compensate an
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tax burden that resulted in his having received a lump-sum back pay award in one
year.
DECISION
The appellants petition for enforcement is GRANTED.
ORDER
I order the agency to pay the appellant the amount of $14,653.50 in
compensatory damages.
The Clerks fax number is (202) 653-7130. Submissions may also be made
by electronic filing at the Board's e-Appeal site (https://e-appeal.mspb.gov) in
accordance with the Board's regulation at 5 C.F.R. 1201.14. A submission may
be rejected and returned to you if you fail to provide a statement of how you
served the other party. See 5 C.F.R. 1201.4(j).
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If the agency decides not to take all of the actions required by this decision,
it must file a petition for review under the provisions of 5 C.F.R. 1201.114 and
1201.115. See 5 C.F.R. 1201.183(a)(6)(ii). The responses required by sections
1201.183(a)(6)(i) and (ii) may be filed separately or as a single pleading. The
agencys response must advise the Board of any change in the identity or location
of the official responsible for compliance.
The appellant may file evidence and argument in response to the agencys
submission. Any such submission must be filed with the Clerk of the Board at
the above address within 20 days of the date of filing of the agencys submission.
If the agency does not file a timely pleading with the Clerk of the Board as
required by sections 1201.183(a)(6)(i) and (ii), the findings of noncompliance
will become final and the case will be processed by the Board in accordance with
5 C.F.R. 1201.183(c)(1).
For agencies whose payroll is administered by either the National Finance
Center of the Department of Agriculture or the Defense Finance and Accounting
Service, two lists of the information and documentation necessary to process
payments and adjustments resulting from a Board decision are attached.
Attachments to AD-343
1. Provide pay entitlement to include Overtime, Night Differential, Shift Premium, Sunday
Premium, etc. with number of hours and dates for each entitlement. (if applicable)
2. Copies of SF-50's (Personnel Actions) or list of salary adjustments/changes and
amounts.
3. Outside earnings documentation statement from agency.
4. If employee received retirement annuity or unemployment, provide amount and address
to return monies.
5. Provide forms for FEGLI, FEHBA, or TSP deductions. (if applicable)
6. If employee was unable to work during any or part of the period involved, certification of
the type of leave to be charged and number of hours.
7. If employee retires at end of Restoration Period, provide hours of Lump Sum Annual
Leave to be paid.
NOTE: If prior to conversion, agency must attach Computation Worksheet by Pay
Period and required data in 1-7 above.
The following information must be included on AD-343 for Settlement Cases: (Lump
Sum Payment, Correction to Promotion, Wage Grade Increase, FLSA, etc.)
a. Must provide same data as in 2, a-g above.
b. Prior to conversion computation must be provided.
c. Lump Sum amount of Settlement, and if taxable or non-taxable.
If you have any questions or require clarification on the above, please contact NFCs
Payroll/Personnel Operations at 504-255-4630.