[Redacted], Ian S., 1 Complainant,v.Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency.Download PDFEqual Employment Opportunity CommissionJan 26, 2022Appeal No. 2021001837 (E.E.O.C. Jan. 26, 2022) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Ian S.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency. Appeal No. 2021001837 Hearing No. 531-2019-00032X Agency No. 2004-0512-2017102561 DECISION Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission) concerning his equal employment opportunity (EEO) complaint alleging 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. and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. For the following reasons, the Commission AFFIRMS the Agency’s final decision. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Human Resources Specialist, Labor Employee Relations at the Perry Point VA Medical Center in Perry Point, Maryland. On May 19, 2017, Complainant filed an EEO complaint alleging that the Agency discriminated against him and subjected him to a hostile work environment on the bases of race (Caucasian), age (60), and in reprisal for prior protected EEO activity (representation of other complainants in EEO matters and the current EEO complaint) 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. 2021001837 2 1. On October 11, 2016, Complainant’s request to telework was denied. 2. On March 13, 2017, Complainant was initially offered a temporary promotion/detail at the VAMC Washington by Person A, which was later denied by Person B, in or around March 2017, which he felt blocked his career advancement. 3. On March 14, 2017, Person C, Chief, Human Resource Management Service told Complainant his work area was not neat and in order and that files were left on his desk. 4. On April 17, 2017, Person D, EEO Assistant, contacted Complainant informing him that her office, the EEO office, was aware of his complaint and asked him if there was anything they could do for him since they knew him. 5. On an unspecified date that Complainant does not recall, Complainant learned another employee, Person E, was placed in a private office; however, he was not asked if he wanted a private office for himself. Following an investigation, Complainant requested a hearing on his complaint before an EEOC Administrative Judge (AJ). On May 10, 2019, the AJ dismissed reprisal as a basis in the complaint. On August 16, 2019, the AJ granted summary judgment for the Agency as to Complainant’s hostile work environment claim. A hearing was held on the sole issue of whether Complainant was subjected to race and age discrimination regarding claim 2. Following a hearing, an EEOC Administrative Judge (AJ), issued a bench decision on May 1, 2020, finding the Agency discriminated against Complainant on the bases of race and age discrimination when the Agency denied him a detail in March 2017. In discussing relief for the denial of detail, the AJ noted that equitable relief was foreclosed by changed circumstances, the fact that Complainant had retired, and the lack of evidence surrounding subsequent promotions following the temporary noncompetitive detail. The AJ also noted that the GS-13 detail would not have resulted in a change in pay for Complainant. To remedy the discrimination the AJ ordered the Agency to: provide four hours of training for Person B; consider disciplinary action for Person B; and post a notice of the finding of discrimination. Further, the AJ noted that Complainant did not testify or introduce any evidence of any sick leave taken attributed to the denial of the detail. The AJ stated based on Complainant’s testimony at the hearing that his harm focused exclusively on career advancement, the Agency was ordered to pay $3,000 in nonpecuniary, compensatory damages. Additionally, the AJ found Complainant was entitled to attorney’s fees and stated a decision on attorney’s fees would follow upon submission of Complainant’s fee petition and the Agency’s response. The AJ noted that the bench decision was not a final decision as no determination had been made on attorney’s fees. The AJ stated the Agency could not issue a final order at the time and noted neither party may appeal the bench decision. 2021001837 3 Thereafter, on June 30, 2020, the AJ issued a Decision on Attorney’s Fees and Costs. The AJ awarded Complainant a total award of $30,750.95 ($30,375 in fees and $375.95 in costs). Additionally, on June 30, 2020, the AJ issued an Order Entering Judgment implementing the Decisions dated May 1, 2020 and June 30, 2020. The AJ attached a notice of appeal rights. The Order was served on both parties via email. The Agency did not appeal the AJ’s decision. When the Agency failed to issue a final order within forty days of receipt of the AJ’s decision, the AJ’s decision finding that Complainant proved that the Agency subjected him to discrimination as alleged became the Agency’s final action pursuant to 29 C.F.R. § 1614.109(i). On September 10, 2020, Complainant’s attorney sent a Notice to the Agency’s Office of General Counsel (OGC) of the Agency’s failure to comply with the final decision in this case. Complainant noted the Agency was ordered to pay $3,000 in damages, provide four hours of training to the responsible official, post a notice, and pay $30,750.95 in attorney’s fees. Complainant stated he has not received any payments. Complainant’s attorney noted a final decision had not yet been issued by the Agency, but the decision is final as the time for the Agency to appeal has passed. In a September 11, 2020 email from the Administrative Officer with the Office of Resolution Management and Diversity & Inclusion (ORMDI) to Complainant’s attorney, the Agency stated it had not received a decision regarding the identified complaint and it did not have a record of issuing any decisions in the matter. The Agency requested a copy of any decisions issued. In a reply email dated September 11, 2020, Complainant’s attorney sent the decisions to ORMDI. The email noted the decisions were uploaded to the EEOC Public Portal on June 30, 2020. On September 17, 2020, the Agency issued a final order.2 The Agency acknowledged in its final order that the AJ’s decision had already become the Agency’s final decision. The Agency stated it was issuing the final order to ensure that the AJ’s decision was fully implemented as to equitable relief, training, consideration of discipline of the responsible management official, and the payment of attorney’s fees and compensatory damages. In its final order, the Agency stated, “[m]anagement shall restore all leave (annual, sick, or leave without pay), if any, taken as a result of the discriminatory action.” On September 17, 2020, Complainant, through his attorney, submitted a Petition for Enforcement with the Commission. Complainant noted that although the Agency issued a final order accepting the AJ’s decision on September 17, 2020, the AJ’s decision was already final at this point and the Agency had already received notice that it was not in compliance. 2 We note the September 17, 2020 final order was issued after the expiration of the applicable timeframe and after the AJ’s decision had already become the Agency’s final action. 2021001837 4 Complainant stated that he had not been paid $3,000 in nonpecuniary damages or $30,750.95 in attorney’s fees and costs. The record contains a Partial Compliance Report submitted on January 27, 2021. Tab 1 of the report reveals that on January 8, 2021, an EEO Specialist contacted Complainant’s attorney to determine whether Complainant was interested in having his leave restored. The Agency noted Complainant’s attorney had not responded to this inquiry. Tab 3 of the report contains a screenshot showing payment by EFT to Complainant on December 31, 2020, in the amount of $3,000. Tab 4 contains a screenshot of a “Certified Payment Voucher Input Screen” with a Vendor Code containing the name and address of Complainant’s attorney indicating a payment was made on December 3, 2020, in the amount of $30,750.95. Tab 5 contains an email from the Instructional Systems Specialist with ORMDI stating that the requisite training was satisfied on September 28, 2020. The Specialist included the training agenda, training memorandum for record, TMS (e-learning course) Certification, and training attendance roster. The Specialist noted the instructor-led component was conducted by the EEO Case Manager and subject manager expert for North Atlantic District, ORMDI. The information provided reflected Person B received four hours of training on race and age discrimination. Tab 6 reflected the Agency was still considering discipline for Person B. The last tab contains a posting Notice and an email dated January 6, 2021, from the EEO Specialist indicating the Notice was posted on the Agency’s intranet site. The EEO Specialist confirmed in a January 27, 2021 email that the Notice was not posted throughout the facility due to COVID-19 and teleworking of EEO staff. A copy of the Notice was signed by the Acting Director, VA Maryland Health Care System indicating the Notice was posted on October 7, 2020, and that the posting expires December 6, 2020. On February 24, 2021, Complainant, through his attorney, submitted an Updated Petition for Enforcement. He claimed the Agency remained noncompliant in that it has failed to restore/compensate him for leave he used related to discrimination in the case. Further, he stated that the Agency has not produced evidence of compliance with either the posting or consideration of discipline for the responsible management official. On March 22, 2021, the Agency filed a response to Complainant’s Updated Petition for Enforcement claiming it was in full compliance with its final order. The Agency noted that Complainant was not entitled to any leave restoration. The Agency stated its final order did not alter the AJ’s decision finding discrimination. The Agency acknowledged its final order provided that “[m]anagement shall restore all leave (annual, sick, or leave without pay), if any, taken as a result of the discriminatory action.” The Agency stated that the AJ held that no leave was taken as a result of the discriminatory action. Further, the Agency argued that even if the final decision or final order awarded Complainant leave restoration (which they did not), Complainant would only be entitled to the restoration of leave taken as a result of the discriminatory action. However, the Agency stated that Complainant took no leave as a result of the discriminatory action. 2021001837 5 Regarding the posting of the EEO Notice, the Agency stated the notice was not physically posted due to COVID-19 and teleworking of the EEO Staff. The Agency provided the January 6, 2021 email from the EEO Specialist confirming that the Notice was posted on the Agency’s intranet site and the January 27, 2021 email from the EEO Specialist stating the Notice was not physically posted throughout the facility due to COVID-19 and the teleworking of the EEO staff. Regarding the consideration of discipline, the Agency stated Person B was disciplined. The Agency provided a document entitled “Rationale for Disciplinary Action or Non-Action” signed by the Human Resources Officer on March 9, 2021, and signed by Person B’s supervisor on March 10, 2021, stating that Person B was reprimanded based on his discriminatory conduct in Complainant’s EEO complaint. ANALYSIS AND FINDINGS EEOC Regulation 29 C.F.R. § 1614.504(a) provides that a final agency action that has not been the subject of an appeal or a civil action shall be binding on the agency. The regulation provides further that if a complainant believes that the agency has not complied with the terms of the final decision, that the complainant shall notify the Agency EEO Director, in writing, within thirty days of the date on which the complainant knew or should have known of the noncompliance. 29 C.F.R. § 1614.504. If Complainant does not receive a response or is not satisfied with said response, a complainant may appeal to the Commission for a determination as to whether the agency is in compliance. 29 C.F.R. § 1614.504(b). Upon review, we find the Agency has shown substantial compliance with its final action. At the outset, we note that when the Agency failed to issue a final order within forty days of receipt of the AJ’s decision, the AJ’s decision finding that Complainant proved that the Agency subjected him to discrimination as alleged became the Agency’s final action. As the September 17, 2021 final order was untimely issued, it is not considered the final action in this matter. First, we address Complainant’s contention that the Agency is not in compliance since it failed to provide him leave restoration. We note the AJ’s decision explicitly stated that Complainant did not testify or introduce any evidence of sick leave taken as a result of the denial of the detail and the AJ did not award restoration of leave as relief for the finding of discrimination. Thus, we find Complainant is not entitled to any restoration of leave. We note if Complainant had wanted additional relief beyond that ordered by the AJ’s decision, he could have filed an appeal. The Agency was ordered to pay Complainant $3,000 in nonpecuniary, compensatory damages and $30,750.95 in attorney’s fees and costs. We find the Agency has provided evidence, as described earlier in this decision, that it made both payments. We note Complainant no longer claims nonpayment in his February 24, 2021 submission. 2021001837 6 The final action required the responsible management official, Person B, to receive four hours of training regarding the prohibition against the Agency discriminating against employees on the bases of race and age within 90 days of the date the decision became final. The Agency has provided evidence that Person B received the requisite training in September 2020. In addition, the Agency was required to post a Notice that a finding of race and age discrimination had been issued against the Agency, both in hard copy and electronic format, within 30 days of the date the AJ’s decision became final. The Agency provided evidence that it posted the requisite Notice on its intranet site from October 7, 2020 through December 6, 2020. The Agency explained that due to COVID-19 and the teleworking of EEO staff it has not been able to comply with the physical posting in the office. We find that the explanation provided is sufficient justification for noncompliance with the physical posting requirement and consider the Agency to be in substantial compliance with this requirement. Finally, we note the Agency was required to consider taking disciplinary action against Person B, the individual responsible for the discrimination to which Complainant was subjected. The Agency has provided evidence indicating that Person B received discipline in the form of a reprimand. CONCLUSION Accordingly, the Agency’s final decision finding that it was in compliance with its final action is AFFIRMED. 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. 2021001837 7 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, 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 (S0610) 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. If you file a request to reconsider and also file a civil action, 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. 2021001837 8 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 26, 2022 Date Copy with citationCopy as parenthetical citation