[Redacted], Eve E., 1 Complainant,v.Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

Jan 31, 2023

Appeal No. 2022001134 (E.E.O.C. Jan. 31, 2023)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Eve E.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency. Request No. 2022004753 Appeal No. 2022001134 Hearing No. 530-2014-00183X Agency No. 200H05422013102146 DECISION ON REQUEST FOR RECONSIDERATION Complainant timely requested that the Equal Employment Opportunity Commission (EEOC or Commission) reconsider its decision in Eve E. v. Dep’t of Veterans Affairs, EEOC Appeal No. 2022001134 (July 20, 2022). EEOC Regulations provide that the Commission may, in its discretion, grant a request to reconsider any previous Commission decision issued pursuant to 29 C.F.R. § 1614.405(a), where the requesting party demonstrates 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. See 29 C.F.R. § 1614.405(c). During the period at issue, Complainant worked as a Vocational Rehabilitation Specialist, GS 9, at the Agency’s Veterans Affairs Medical Center in Coatesville, Pennsylvania. On April 22, 2013, Complainant filed a formal EEO complaint claiming that the Agency discriminated against her based on disability when: 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. 2022004753 2 1. from September 2012 through January 24, 2013, the Supervisory Vocational Rehabilitation Specialist failed to provide a reasonable accommodation to Complainant in the form of a private office space; and 2. on January 23, 2013, Complainant was informed that she would be terminated during her probationary period effective January 24, 2013. Following a hearing, an EEOC Administrative Judge (AJ) issued a decision on March 2, 2018, finding that the Agency violated the Rehabilitation Act when it failed to provide Complainant with a reasonable accommodation and when it terminated Complainant’s employment. As part of a remedial order, the AJ required, in pertinent part, that the Agency undertake the following actions: The Agency shall reinstate Complainant to the position of Vocational Rehabilitation Specialist, GS-1719-09, Temporary Appointment, or a substantially equivalent GS-09 position in her current geographic location retroactive to the date she was terminated. The Agency shall also credit Complainant for all time previously served as a probationary employee prior to her wrongful termination. Or at the Complainant’s option, the Agency shall issue Complainant back pay, for time period remaining on the four (4) year temporary appointment retroactive to the date of her termination. On April 4, 2018, the Agency’s Office of Employment Discrimination Complaint Adjudication issued a final order fully adopting and implementing the AJ’s findings of discrimination and award of relief.2 The Agency’s Office of Employment Discrimination Complaint Adjudication ordered management to immediately reinstate Complainant to the position of Vocational Rehabilitation Specialist, GS-1719-09, Temporary Appointment, or a substantially equivalent GS-09 position in her current geographic location, retroactive to the date Complainant’s employment was terminated. The Office of Employment Discrimination Complaint Adjudication noted that if Complainant elected to decline the offer of reinstatement, she must notify the Agency within 30 days, and the Agency would then be required to issue Complainant back pay plus interest for the time period remaining on the four (4) year temporary appointment, retroactive to the date of her termination. Specifically, the Office of Employment Discrimination Complaint Adjudication determined that Complainant’s back pay award shall commence on January 25, 2013 through February 28, 2015 (four years from date of appointment). 2 Complainant appealed the Agency’s final decision. However, the Commission dismissed this appeal as untimely. See Eve E. v. Dep’t of Veterans Affairs, EEOC Appeal No. 0120182107 (Dec. 11, 2019). Complainant sought reconsideration of this dismissal which the Commission also denied. See Eve E. v. Dep’t of Veterans Affairs, EEOC Request No. 2020002386 (Sep. 3, 2020). 2022004753 3 Approximately three years its April 4, 2018 Order, the Agency began, on February 17, 2021, the process of complying with the remedial awards.3 Regarding her reinstatement, the Agency offered Complainant, on February 22, 2021, reinstatement to the relevant position retroactive to the date she was terminated. However, the Agency noted that Complainant would not receive backpay. Alternatively, the Agency offered Complainant back pay for the time period remaining on her temporary appointment retroactive to the date of her termination. The Agency denied Complainant’s request that her back pay be calculated retroactive to her termination and lasting until the present. On March 9, 2021, Complainant alleged that the Agency failed to comply with the April 4, 2018 Order and failed to respond to her allegations of noncompliance and, subsequently, had to file an appeal with the Commission. In pertinent part, Complainant argued that the Agency’s offer of backpay was not consistent with the AJ’s order. In EEOC Appeal No. 2022001134, the Commission affirmed the Agency’s determination that Complainant’s backpay be calculated beginning on January 25, 2013 (the day after Complainant’s wrongful termination) and extending to February 28, 2015 (four years from the date of Complainant’s appointment). The Commission noted that the AJ’s order clearly stated that Complainant was entitled to “backpay for time period remaining on the four (4) year temporary appointment retroactive to the date of her termination.” Consequently, the Commission explained that it lacked any authority, at this stage of appeal, to alter the AJ’s award of backpay. The Commission also noted that Complainant hired counsel to address the Agency’s failure to timely comply with the AJ’s order regarding compensatory damages and determined that Complainant was entitled to attorney’s fees to cover services used to secure Agency compliance. Finally, the Commission ordered the Agency to conduct several other remedial actions required by the AJ. In the instant request for reconsideration, Complainant submits a statement expressing disagreement with the appellate decision and reiterates arguments previously made on appeal. Namely, Complainant, through counsel, argues that the backpay at issue was related to Complainant’s reinstatement, not an election for backpay after declining reinstatement. Complainant argues that she elected to be reinstated and that her reinstatement includes backpay. However, the AJ only discussed backpay in the order as an alternative to Complainant’s declining the offer of reinstatement. As previously stated, the Commission does not have the authority to alter the AJ’s decision. Complainant did not timely appeal the Agency’s final order implementing the AJ’s order, and therefore, the AJ’s order is binding. Additionally, we emphasize that a request for reconsideration is not a second appeal to the Commission. Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), Chap. 9 § VI.A (Aug. 5, 2015); see, e.g., Lopez v. Dep't of Agric., EEOC Request No. 0520070736 (Aug. 20, 2007). Rather, a reconsideration request is an opportunity to demonstrate that the 3 On February 17, 2021, the Agency awarded Complainant’s compensatory damages award. 2022004753 4 appellate decision involved a clearly erroneous interpretation of material fact or law, or will have a substantial impact on the policies, practices, or operations of the Agency. Complainant has not done so here. After reviewing the previous decision and the entire record, the Commission finds that the request fails to meet the criteria of 29 C.F.R. § 1614.405(c), and it is the decision of the Commission to deny the request. The decision in EEOC Appeal No. 2022001134 remains the Commission's decision. There is no further right of administrative appeal on the decision of the Commission on this request. Therefore, we order the Agency to fully comply with Commission’s remedial order specified in EEOC Appeal No. 2022001134, and referenced below.4 ORDER To the extent the Agency has not already done so, the Agency is ordered5 to take the following remedial action: 1. Within 30 days of the date of this decision is issued, the Agency shall offer to reinstate Complainant to the position of Vocational Rehabilitation Specialist, GS- 1719-09, Temporary Appointment, or a substantially equivalent GS-09 position in her current geographic location retroactive to the date she was terminated. The Agency shall also credit Complainant for all time previously served as a probationary employee prior to her wrongful termination. Or at the Complainant’s option, the Agency shall issue Complainant back pay, for time period remaining on the four (4) year temporary appointment retroactive to the date of her termination. 2. To the extent the Agency has not already done so, the Agency shall remove all indications of termination and language indicating termination for performance from 4 We caution the Agency that any further delay in compliance with Commission orders will result in the requirement to issue a written report to the Director, Federal Sector Programs, Office of Federal Operations regarding deficiencies in compliance and a detailed action plan for addressing its failure to comply with Commission orders. See Iesha G. v. Dep’t of the Army, EEOC Petition No. 2019004319 (Jan. 31, 2020), see also Chastity L. v. Dep’t of the State, EEOC Petition No. 2021004652 (June 27, 2022). 5 We note that the Agency’s offer of reinstatement to her former position should include the possibility that Complainant’s temporary appointment will be renewed. Based upon the record, Complainant’s three former co-workers who also began their employment with the Agency at the same time as Complainant under the same temporary appointments had their appointments renewed repeatedly and the same opportunity for renewal should be offered to Complainant, as it would have been, absent her wrongful termination. We also remind the Agency of its obligation to provide Complainant an effective, reasonable accommodation for her disabilities, should Complainant accept the offer of reinstatement. 2022004753 5 Complainant’s Form SF-50. The revised Form SF-50 shall also be updated in the Complainant’s eOPF file. 3. In addition, within 60 days of the date this decision is issued, the Agency is ordered to determine Complainant’s entitlement to attorney’s fees and costs associated with the attorney’s efforts to obtain compliance with the Agency’s Final Order and with the processing of the instant appeal referenced below. The Agency is further directed to submit a report of compliance in digital format as provided in the statement entitled "Implementation of the Commission's Decision." The report shall be submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Further, the report must include supporting documentation of the Agency's calculation of back pay and other benefits due Complainant, including evidence that the corrective action has been implemented. ATTORNEY'S FEES (H1019) If Complainant has been represented by an attorney (as defined by 29 C.F.R. § 1614.501(e)(1)(iii)), she/he 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 receipt of this decision. 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 (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). 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 & 2022004753 6 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. COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (P0610) This decision of the Commission is final, and there is no further right of administrative appeal from the Commission’s decision. 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. 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 January 31, 2023 Date