01A20481_r
01-29-2002
Elisa Almera, Complainant, v. Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.
Elisa Almera v. Department of Veterans Affairs
01A20481
January 29, 2002
.
Elisa Almera,
Complainant,
v.
Anthony J. Principi,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01A20481
Agency No. 96-0149
Hearing No. 340-96-3785X
DECISION
On August 9, 2001, complainant filed an appeal with the Commission
alleging that the agency failed to comply with a final decision issued
by the agency on May 14, 2001.
The record reveals that during the relevant time, complainant, a GS-11,
was employed as a staff pharmacist in the inpatient pharmacy at the
agency's Jerry L. Pettis Memorial Veterans Hospital in Loma Linda,
California. Complainant filed a formal complaint alleging that she was
discriminated against on the bases of national origin (Filipino), sex
(female), and age (D.O.B. 7/5/38), when: she was subject to a harassing
hostile work environment from June 1994 to August 1995 and she was
not selected for the Outpatient Pharmacy Supervisor, GS-12, position
in August 1994, May 1995, and September 1995. Complainant requested a
hearing before an EEOC Administrative Judge (AJ). On March 28, 2001, the
AJ issued a decision finding that complainant was discriminated against
on the bases of national origin and age when she was not selected for the
Outpatient Pharmacy Supervisor position in August 1994, and finding that
complainant was discriminated against on the basis of age when she was
not selected for the Outpatient Pharmacy Supervisor position in May 1995.
The agency issued a final decision on May 14, 2001, implementing the AJ's
decision and providing that the agency should undertake the following
actions as ordered by the AJ:
Unconditionally offer to promote complainant to an Outpatient Pharmacy
Supervisor position at the Loma Linda VA or a substantially equivalent
position, retroactive to the specific date that the Agency selected
[Person A] for the position around August 1994 and provide complainant
with back pay, employee benefits, and applicable interest from the
effective date of the retroactive promotion.
Conduct training for [Person B], the management official who
discriminated against complainant by not selecting her in August
1994 and May 1995, concerning his responsibilities with respect to
eliminating discrimination in the workplace and all other managerial
responsibilities under equal employment opportunity law
Compensate complainant for non-pecuniary losses in the amount of $
12,000.00.
Compensate complainant $ 12,581.25 for fees and$ 43.75 for costs
The agency also ordered, in addition to the remedies set forth by the AJ,
that the following additional corrective action be taken:
An appropriate management official shall sign and conspicuously post
at the facility the attached notice of violation for a period of not
less than 90 days.
In an August 8, 2001 letter, complainant notified the agency that
she believed the agency was not in compliance with the May 14, 2001
decision.<1> Complainant alleged that she was not offered an Outpatient
Pharmacy Supervisor position (or a substantially equivalent position),
was not provided supervisory bonuses awarded since 1994, and was not
provided an accounting of back pay. The agency did not respond to
complainant's August 8, 2001 letter of non-compliance.
Complainant subsequently filed an appeal with the Commission. Complainant
is only alleging noncompliance with provision (1) of the relief in the
agency decision. Complainant states that instead of being specifically
assigned to an Outpatient Pharmacy Supervisor position at Loma Linda,
the agency offered complainant a Staff Pharmacist, GS-12 position which
is not a supervisory position. Complainant notes that the duties
and responsibilities of the Staff Pharmacist position are the same
duties she is currently performing. Complainant states that the Staff
Pharmacist position has no supervisory duties and that if she accepted the
position, she would be forced to rotate through various tours of duty.
Additionally, complainant claims that the agency failed to provide her
supervisory bonuses awarded since 1994, and failed to provide her an
accounting of her back pay.
The record contains an SF-50 indicating that the agency changed
complainant's position title from Pharmacist (Clinical Specialist),
GS-12, to Staff Pharmacist, GS-12. The effective date of the change
in position title is October 7, 2001. The record contains a partial
copy of the functional statement describing the principal duties and
responsibilities of the GS-12 Staff Pharmacist position.
Upon review, we find that complainant has shown that the agency failed
to fully comply with its May 14, 2001 decision. The decision required
the agency to offer to promote complainant to an Outpatient Pharmacy
Supervisor position or a substantially equivalent position, retroactive
to August 1994. The record shows that complainant's position title
was changed to a Staff Pharmacist position with an effective date of
October 7, 2001. Complainant argues, and we agree, that the Staff
Pharmacist position is not an Outpatient Pharmacy Supervisor position
or a substantially equivalent position. The agency did not respond
to complainant's claim that the Staff Pharmacist position is not
substantially equivalent to an Outpatient Pharmacy Supervisor position.
The record fails to show that the Staff Pharmacist position includes any
supervisory duties. The Commission finds that supervisory duties are an
essential element of the Outpatient Pharmacy Supervisor position and that
therefore the Staff Pharmacist position is not substantially equivalent to
the Outpatient Pharmacy Supervisor position. The agency failed to offer
to promote complainant to the appropriate position (Outpatient Pharmacy
Supervisor position or a substantially equivalent position) as required
in the agency's May 14, 2001 decision. Therefore, we shall order the
agency to unconditionally offer to promote complainant to the Outpatient
Pharmacy Supervisor position or a substantially equivalent position.
In addition, complainant claims that she has not received the supervisory
bonuses awarded since 1994. The May 14, 2001 decision states that
complainant will be provided �employee benefits� from the effective
date of the retroactive promotion. The Commission finds that the
term �employee benefits� includes, in the instant matter, any bonuses
she would have received from the date of the retroactive promotion.
The record, however, does not contain sufficient information to make
a reasoned determination as to what bonuses would have been awarded to
complainant had she been promoted to an Outpatient Pharmacy Supervisor
position at the Loma Linda VA, retroactive to the specific date that the
Agency selected Person A for the position around August 1994. Therefore,
we shall remand this issue and order the agency to provide a list of
the bonuses provided to the person who held the Outpatient Pharmacy
Supervisor position at the Loma Linda VA from August 1994 until the
date complainant is retroactively promoted. The agency shall then pay
complainant the bonuses (plus interest) that she would have received if
she had been promoted around August 1994.
Regarding the back pay award, the Commission finds that the record does
not clearly show that complainant was awarded back pay, how much (if any)
she was awarded, and the data and method used to calculate such a back pay
award. Therefore, we shall remand this issue so that the agency may show
that it has paid complainant the back pay due her under the May 14, 2001
decision and the data and method used to calculate such a back pay award.
The Commission finds that the agency has not complied with the agency's
May 14, 2001 decision. The matter is REMANDED to the agency for further
action in accordance with the Order below.
ORDER
Within 30 days of the date this decision becomes final the agency shall:
Unconditionally offer to promote complainant to an Outpatient Pharmacy
Supervisor position at the Loma Linda VA or a substantially equivalent
position, retroactive to the specific date that the Agency selected
Person A for the position around August 1994.
Supplement the record with a list of the bonuses provided to the person
who held the Outpatient Pharmacy Supervisor position at the Loma Linda
VA from August 1994 until the date complainant is retroactively promoted.
Pay complainant the bonuses (plus interest) that she would have received
if she had been promoted around August 1994.
Pay complainant back pay and applicable interest from the retroactive
date of her promotion to the Outpatient Pharmacy Supervisor position
(or substantially equivalent position).
Supplement the record with documentation showing the data and method
used to calculate the back pay award ordered in provision 4 of this Order.
The agency shall issue a letter to complainant informing her that it
has complied with this Order. A copy of that letter shall be sent to
the Compliance Officer referenced herein.
ATTORNEY'S FEES (H0900)
If complainant has been represented by an attorney (as defined by
29 C.F.R. � 1614.501(e)(1)(iii)), he/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 this
decision becoming final. 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 (K0501)
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 (M0701)
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 19848,
Washington, D.C. 20036. 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 (R0900)
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 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 (Z1199)
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 that the Court appoint
an attorney to represent you and that the Court 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 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 29, 2002
__________________
Date
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
__________________
Date
______________________________
1In a separate appeal to the Commission, complainant challenged the amount
of the compensatory damages and attorney's fee awards. The Commission
will address the propriety of the compensatory damages and attorney's
fee awards under EEOC Appeal No. 01A13618.