[Redacted], Cory C, 1 Complainant,v.Robert Wilkie, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

Dec 10, 2020

Appeal No. 2020005116 (E.E.O.C. Dec. 10, 2020)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Cory C,1 Complainant, v. Robert Wilkie, Secretary, Department of Veterans Affairs, Agency. Appeal No. 2020005116 Agency No. 200I-0573-2020105168 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's final decision dated August 27, 2020, dismissing a formal complaint of unlawful 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 relevant time, Complainant worked as a Physician, GS-15 at the Agency’s facility in Lake City, Florida. On June 16, 2020, Complainant initiated EEO contact. On July 17, 2020, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the bases of race (African American) and in reprisal for prior protected EEO activity (prior EEO complaints). In its final decision dated August 27, 2020, the Agency determined that the formal complaint was comprised of the following claims: 1. On June 13, 2020, Complainant’s Performance Pay recommendation was denied, when maximum pay was recommended by the Service Chief; 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. 2020005116 2 2. On June 13, 2020, Complainant’s prior [Agency] service was not considered or ignored when determining his VA compensation; 3. On June 13, 2020, a peer review with untrue information was used in Complainant’s re-credentialing process; and 4. On June 15, 2020, Complainant’s Market Pay was retroactively decreased after filing an EEO complaint. The Agency dismissed claims (1) and (3) for stating the same claim that has been pending or has been decided by the Agency or the Commission. The Agency reasoned in its final decision that Complainant raised these claims in a prior EEO complaint, Agency Case No. 200I-0573- 2020102198, which is pending a hearing before an EEOC AJ. The Agency dismissed claims (2) and (4) for untimely EEO Counselor contact. The Agency reasoned that claims involving his salary when he was hired should have been brought within 45 days of his hire date, July 25, 2016. Regarding no increase in Complainant’s Market Pay, the Agency reasoned that records show an effective date of May 28, 2018 for this determination Thus, the Agency reasoned that Complainant should have raised this matter within 45 days of May 28, 2018. Based on the foregoing, the Agency found that Complainant’s June 16, 2020 EEO contact was untimely for claims (2) and (4). The instant appeal followed. On appeal, Complainant requests that we reverse its final decision. Complainant asserts that the matters raised in claims (1) and (3) of the instant complaint are not the same matters raised in a prior complaint. Complainant asserts that in the instant complaint (claim (1)) involves a bonus pay recommendation while he raised a separate matter of an evaluation in his prior complaint. Regarding claim (3) in the instant complaint, Complainant asserts that he raised an issue of his clinical privileges in his prior complaint where in the instant complaint he raises the issue of Agency reappointment. Specifically, Complainant states that clinical privileging and reappointment are distinct processes which usually occur simultaneously. Specifically, in the instant complaint, Complainant alleges that a co-worker submitted an untrue peer review to undermine his VA reappointment “and not specific clinical privileges.” Regarding claims (2) and (4), Complainant asserts that the Lilly Ledbetter Fair Pay Act applies to these claims. Complainant asserts that the Agency pays him every 14 days thus the compensation discrimination continues each pay period. Complainant further asserts that he did not suspect discrimination regarding these matter until 45 days preceding his EEO contact. In response, the Agency requests that we affirm its final decision. Regarding claims (1) and (3), the Agency states that Complainant is recycling an old claim from his prior EEO complaint. The Agency asserts that in his prior complaint, Complainant challenged his performance rating of less than “outstanding” while he challenges in the instant complaint his performance pay which is the direct result of his performance appraisal rating. 2020005116 3 Regarding the dismissal of claims (2) and (4) for untimely EEO Counselor contact, the Agency reasoned that Complainant should have known of the alleged pay issues through SF-50 submitted into Complainant’s electronic personnel file. Moreover, the Agency asserts that claims (2) and (4) are barred by the doctrine of laches. ANALYSIS AND FINDINGS Claims (1) and (3) The regulation set forth at 29 C.F.R. § 1614.107(a)(1) provides that the agency shall dismiss a complaint that states the same claim that is pending before or has been decided by the agency or Commission. It has long been established that "identical" does not mean "similar." The Commission has consistently held that in order for a complaint to be dismissed as identical, the elements of the complaint must be identical to the elements of the prior complaint in time, place, incident, and parties. See Jackson v. Dep’t of the Air Force, EEOC Appeal No 01955890 (Apr. 5, 1996) rev’d on other grounds EEOC Request No. 05960524 (Apr. 24, 1997). The Agency improperly dismissed claim (1) for stating the same claim in a prior complaint. In his prior complaint, Agency Case No. 200I-0573-2020102198, Complainant alleged that he received an overall performance appraisal rating of less than “outstanding”. In the instant matter, Complainant is alleging a compensation discrimination claim when he was denied performance pay. While the Agency alleges that he was denied performance pay because of his performance appraisal rating, we find that this assertion goes to the merits of Complainant’s claim rather than whether Complainant has set forth an actionable claim. We further find that the Agency improperly dismissed claim (2). In his prior complaint, Agency Case No. 200I-0573-2020102198, Complainant alleges that he was subjected to discrimination regarding his clinical privileges being denied. In the instant complaint, he alleges that a co-worker submitted an untrue peer review to undermine his VA reappointment. Based on the foregoing, we do not find that claims (1) and (3) are the same claims raised in his prior complaint. Claims (2) and (4) The Agency improperly dismissed claims (2) and (4) for untimely EEO Counselor contact. Claims (2) and (4) both involve matters of compensation discrimination. Complainant's EEO Counselor contact was timely under the Lilly Ledbetter Fair Pay Act (Ledbetter Act), Pub. L. No. 111-12, 123 Stat. 5. The Ledbetter Act applies to all claims of discrimination in compensation, pending on or after May 28, 2007, under Title VII, the Rehabilitation Act, and the Age Discrimination in Employment Act. With respect to Title VII claims, Section 3 of the Ledbetter Act provides that: An unlawful employment practice occurs, with respect to discrimination in compensation in violation of this title when a discriminatory compensation decision or other practice is adopted, when an individual becomes subject to a discriminatory compensation decision or other practice, or when an individual is affected by 2020005116 4 application of a discriminatory compensation decision or other practice, including each time wages, benefits, or other compensation is paid, resulting in whole or part from such a decision or other practice. Complainant contacted an EEO Counselor within 45 days of receiving a paycheck. Thus, we find Complainant timely initiated EEO Counselor with respect to claims (2) and (4). Accordingly, we REVERSE the Agency’s final decision dismissing Complainant’s complaint and we REMAND this matter to the Agency for further processing in accordance with the ORDER below. ORDER (E0618) The Agency is ordered to process the remanded claims in accordance with 29 C.F.R. § 1614.108 et seq. The Agency shall acknowledge to the Complainant that it has received the remanded claims within thirty (30) calendar days of the date this decision was issued. The Agency shall issue to Complainant a copy of the investigative file and also shall notify Complainant of the appropriate rights within one hundred fifty (150) calendar days of the date this decision was issued, unless the matter is otherwise resolved prior to that time. If the Complainant requests a final decision without a hearing, the Agency shall issue a final decision within sixty (60) days of receipt of Complainant’s request. As provided in the statement entitled "Implementation of the Commission's Decision,” the Agency must send to the Compliance Officer: 1) a copy of the Agency’s letter of acknowledgment to Complainant, 2) a copy of the Agency’s notice that transmits the investigative file and notice of rights, and 3) either a copy of the complainant’s request for a hearing, a copy of complainant’s request for a FAD, or a statement from the agency that it did not receive a response from complainant by the end of the election period. IMPLEMENTATION OF THE COMMISSION’S DECISION (K0719) Under 29 C.F.R. § 1614.405(c) and § 1614.502, compliance with the Commission’s corrective action is mandatory. Within seven (7) calendar days of the completion of each ordered corrective action, the Agency shall submit via the Federal Sector EEO Portal (FedSEP) supporting documents in the digital format required by the Commission, referencing the compliance docket number under which compliance was being monitored. Once all compliance is complete, the Agency shall submit via FedSEP a final compliance report in the digital format required by the Commission. See 29 C.F.R. § 1614.403(g). The Agency’s final report must contain supporting documentation when previously not uploaded, and the Agency must send a copy of all submissions to the Complainant and his/her representative. 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). 2020005116 5 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. Failure by an agency to either file a compliance report or implement any of the orders set forth in this decision, without good cause shown, may result in the referral of this matter to the Office of Special Counsel pursuant to 29 C.F.R. § 1614.503(f) for enforcement by that agency. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0620) The Commission may, in its discretion, reconsider this appellate decision if the 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, 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). 2020005116 6 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 (R0610) 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 (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 December 10, 2020 Date