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

Equal Employment Opportunity Commission

Jul 20, 2022

Appeal No. 2022001134 (E.E.O.C. Jul. 20, 2022)

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 (Veterans Health Administration), Agency. Appeal No. 2022001134 Hearing No. 530-2014-00183X Agency No. 200H05422013102146 DECISION On April 13, 2021, Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission), concerning her equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. For the following reasons, the Commission AFFIRMS the Agency’s final order. BACKGROUND At the time of events giving rise to this complaint, 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 an EEO complaint alleging that the Agency discriminated against her on the basis of disability (mental) 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. 2022001134 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; 2. On January 23, 2013, Complainant was informed that she would be terminated during her probationary period effective January 24, 2013. At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant timely requested a hearing and the AJ held a hearing on August 11, 2015, and issued a decision on March 2, 2018. The AJ concluded that the Agency violated the Rehabilitation Act when it failed to provide Complainant with a reasonable accommodation and when it terminated her. The AJ entered judgment in Complainant’s favor and awarded her, in pertinent part, the following make-whole relief: 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. The AJ also ordered the Agency to conduct training, post copies of a notice regarding the finding of discrimination and pay non-pecuniary compensatory damages to Complainant in the amount of $85,000.00. On April 4, 2018, the Agency’s Office of Employment Discrimination Complaint Adjudication (OEDCA) issued a final order fully adopting and implementing the AJ’s findings on liability and make-whole relief.2 The OEDCA ordered the Agency, in pertinent part, 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 she was terminated. The OEDCA noted that in the event Complainant elects to decline the offer of reinstatement, she must notify the Agency within 30 days and the Agency 2 Complainant appealed the Agency’s final order to the Commission, which dismissed the appeal as untimely. See Eve E. v. Dep’t of Veterans’ Affairs, EEOC Appeal No. 0120182107 (Dec. 11, 2019). Complainant filed a request for reconsideration of the decision dismissing her appeal, which the Commission also denied. See Eve E. v. Dep’t of Veterans Affairs, EEOC Request No. 2020002386 (Sep. 3, 2020). 2022001134 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. The OEDCA further stated that the time period used to compute the back pay award shall commence on January 25, 2013 and extend to February 28, 2015 (four years from date of appointment). The Agency unsuccessfully attempted to contact Complainant concerning her reinstatement and/or back pay. Complainant retained counsel in order to obtain the Agency’s compliance with its April 4, 2018 Order. On February 17, 2021, the Agency processed Complainant’s compensatory damages, which we note was almost three years after the OEDCA issued its Order implementing the AJ’s award of remedies. With respect to the issue of reinstatement and/or back pay, through correspondence with the Agency, Complainant argued that backpay should be calculated retroactive to her termination and lasting until the present day in order to make Complainant whole for the discrimination she suffered. On February 22, 2021, the Agency officially offered to reinstate Complainant to the position of Vocational Rehabilitation Specialist, Temporary Appointment, or a substantially equivalent GS-09 position in her current geographic location retroactive to the date she was terminated, noting that Complainant “will serve the period remaining on her temporary appointment (there is no back pay involved).” In the alternative, the Agency offered Complainant back pay for the time period remaining on her temporary appointment retroactive to the date of her termination. The Agency rejected Complainant’s argument regarding the time period in which Complainant was entitled to back pay, contending that it was speculative to assume that Complainant would still be employed by the Agency absent the discrimination. On March 9, 2021, Complainant filed an Allegation of Noncompliance with the Agency in an attempt to secure the Agency’s compliance with its Order. The Agency did not respond to Complainant’s Allegation of Noncompliance and Complainant filed the instant appeal seeking enforcement of the Agency’s order on April 13, 2021. CONTENTIONS ON APPEAL On appeal, Complainant contends that the Agency’s offer of back pay is not in accordance with the AJ’s order requiring the Agency to make Complainant whole for the harm she suffered as a result of the discrimination. Specifically, Complainant argues that limiting her back pay from the date of termination only to the end of the initial temporary appointment would result in an unjust windfall for the Agency. Complainant emphasizes that three other people were hired for the same four-year temporary appointments at the same time as Complainant and all three had their appointments renewed repeatedly and then became permanent employees of the Agency and two of the three are still employed by the Agency while the third has since retired. Complainant contends that due to the Agency’s discrimination, her disabilities have worsened and she has been unable to find other employment and if it had not been for the Agency’s discrimination, she would still be employed by the Agency, similar to the others who were hired for temporary appointments at the same time as Complainant. 2022001134 The Agency did not file a brief on appeal. ANALYSIS AND FINDINGS The Commission’s regulations provide that a final action that has not been the subject of an appeal or civil action shall be binding on the Agency. 29 C.F.R. § 1614.504(a). If Complainant believes that the Agency has failed to comply with the terms of a decision, she shall notify the EEO Director, in writing, of the alleged noncompliance within 30 days of when Complainant knew or should have known of the alleged noncompliance. 29 C.F.R. § 1614.504(b). The agency shall resolve the matter and respond to the complainant, in writing. Id. If the agency has not responded to the complainant, in writing, or if the complainant is not satisfied with the agency’s attempt to resolve the matter, the complainant may appeal to the Commission for a determination as to whether the agency has complied with the terms of the settlement agreement or decision. Id. The complainant may file such an appeal 35 days after he or she has served the agency with the allegations of noncompliance but must file an appeal within 30 days of his or her receipt of an agency’s determination. Id. If the Commission determines that the Agency is not in compliance with its decision, and the noncompliance is not attributable to acts or conduct of Complainant, it may order such compliance with the decision. 29 C.F.R. § 1614.504(c). As the record shows that the Agency’s EEO Director failed to respond to Complainant’s written notice of noncompliance, we find that the matter is properly before us pursuant to 29 C.F.R. § 1614.504(b). For the purposes of our analysis, we shall treat the Agency’s most recent February 22, 2021 official correspondence with Complainant as the Agency’s final decision. Given that Complainant’s appeal centers on the Agency’s refusal to provide additional back pay, we exercise our discretion to limit our review to that issue. See Mario G. v. U.S. Postal Serv., EEOC Appeal 0120170779 (Aug. 30, 2017) (“The Commission exercises its discretion to review only the issues specifically raised in Complainant’s appeal and declines to review uncontested aspects of the Agency’s final order.”), citing EEOC Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), Chap. 9, at § IV.A (Aug. 5, 2015). On appeal, Complainant contends that she should be awarded additional backpay from the date of her termination and continuing to the present time because the evidence shows that if it had not been for the Agency’s discriminatory conduct in wrongfully terminating her employment, she would still be employed at the Agency. Having reviewed the record, we find Complainant’s argument to be without merit. While we are sympathetic to Complainant’s plight and in no way condone the egregiousness of the Agency’s discriminatory actions or its delay in complying with the AJ’s award of remedies, we do not have the authority at this stage to modify the AJ’s award of backpay.3 3 We emphasize that the severity of Complainant’s situation was significantly exacerbated by the Agency’s excessive delay in complying with the AJ’s order awarding remedies in a timely manner. We caution the Agency that any continuing delay in compliance with Commission orders will 2022001134 The AJ’s order on backpay specifically stated that 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.” The terms of the AJ’s order are clear and specific and do not contemplate an award of backpay for a period longer than the time remaining on Complainant’s initial four-year temporary appointment.4 We therefore conclude that the Agency’s offer of backpay to Complainant in its April 4, 2018 Order, to 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) is in accordance with the AJ’s Order. We note that the Agency failed to comply with the AJ’s order awarding compensatory damages until February 2021, almost three full years after the AJ issued her decision and the Agency issued its order implementing the AJ’s decision, and did not do so until after Complainant had engaged the assistance of an attorney to obtain compliance. We therefore include an order for attorney’s fees for work performed by Complainant’s attorney in trying to obtain compliance by the Agency and the filing of the instant appeal. See Trena v. U.S. Postal Serv., EEOC Appeal No. 2020002239 (Aug. 5, 2021) (awarding complainant attorney’s fees for work rendered to secure compliance with final order). CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency’s final decision and remand the matter in accordance with the ORDER below. ORDER (C0618) The Agency is ordered to take the following remedial action: 1. Within 30 days of the date 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.5 Or at the Complainant’s option, the 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). 4 Complainant had the opportunity to challenge the AJ’s Order regarding her remedies by filing an appeal of the Agency’s final order implementing the AJ’s decision, but as noted earlier, Complainant’s appeal was untimely filed and therefore the AJ’s Order is binding. 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. 2022001134 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 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 as 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. 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. 2022001134 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 & 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 (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 2022001134 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. 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 (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. 2022001134 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 20, 2022 Date