[Redacted], Nevada R., 1 Petitioner,v.Robert Wilkie, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

Nov 3, 2020

Appeal No. 0120140904 (E.E.O.C. Nov. 3, 2020)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Nevada R.,1 Petitioner, v. Robert Wilkie, Secretary, Department of Veterans Affairs, Agency. Petition No. 2020002434 Appeal No. 0120140904 Agency No. 200405902010102960 DECISION ON A PETITION FOR ENFORCEMENT On February 24, 2020, the Equal Employment Opportunity Commission (EEOC or Commission) docketed a petition for enforcement to examine the enforcement of an Order set forth in EEOC Appeal No. 0120140904 (January 18, 2017). The Commission accepts this petition for enforcement pursuant to 29 C.F.R. § 1614.503. Petitioner alleged that the Agency failed to fully comply with the Commission’s order. BACKGROUND On August 19, 2013, an EEOC Administrative Judge (AJ) found that the Agency discriminated against Petitioner on the basis of race (African-American) when she was not selected for a Lead Supervisory Social Worker position. The AJ ordered relief, including to promote Petitioner to a Lead Supervisory Social Worker position or a substantially equivalent position and to pay her back pay retroactive to May 23, 2010. On September 24, 2013, the Agency issued a final order fully implementing the AJ’s decision. Petitioner filed an appeal to the Commission, alleging that the Agency had not placed her in a Lead Supervisory Social Worker position or provided her with corresponding back pay. 1 This case has been randomly assigned a pseudonym which will replace Petitioner’s name when the decision is published to non-parties and the Commission’s website. 2020002434 2 In Appeal No. 0120140904, the Commission found that the Agency had not established that the Senior Supervisor Social Worker for Mental Health Programs position offered to Petitioner was substantially equivalent to the Lead Supervisory Social Worker position. The Commission also found that, while the Agency submitted documentation that it had awarded Petitioner back pay, there was no explanation of how the Agency calculated the amount. The Commission found that it was impossible to tell if Petitioner was provided back pay with interest for the appropriate amount of time. The Commission ordered the Agency to offer Petitioner a Lead Supervisory Social Worker position or a substantially equivalent position and to provide back pay, interest, and other benefits from May 23, 2010, through the date Petitioner started the new position or declined the offer. The Order also specified that the Agency had to provide Petitioner with a detailed statement explaining how the back pay award was calculated, ordering the Agency to use clear and concise “plain language” to explain the assumptions made, the calculations used, and the actual calculations applying the formulas and methods. The matter was assigned to a Compliance Officer and docketed as Compliance No. 0620170229 on January 19, 2017. On July 10, 2017, the Compliance Officer issued the Agency a letter, stating that the Commission had no record that the Agency had implemented the Commission’s decision. On July 18, 2017, Petitioner submitted the petition for enforcement at issue. In the petition, Petitioner states that the Agency offered her a suitable position on July 10, 2017. However, Petitioner contends that the Agency failed to pay her the appropriate amount of back pay, interest, and other benefits and to provide her with a detailed statement explaining how it calculated the back pay award. The Compliance Officer sent additional letters to the Agency on February 11, 2019, and December 10, 2019, stating that the Commission had no record that the Agency had completely implemented the Commission’s decision. On December 18, 2019, the Agency submitted an interim compliance report, which showed that the Agency offered a Supervisory Social Worker position to Petitioner and that she accepted the offer on July 17, 2017. The interim compliance report contained spreadsheets related to the back pay award, but there was no detailed, plain language explanation of the formulas and methods used by the Agency to calculate the amount. On January 20, 2020, Petitioner submitted a renewed petition for enforcement, noting that the Agency still had not complied with the Commission’s orders. The Commission docketed the petition for enforcement on February 24, 2020. In response to the docketing of the petition for enforcement, the Agency contends that the only outstanding compliance matter was the payment of interest on the back pay award. According to the Agency, although it had provided the appropriate paperwork to the Defense Finance and Accounting Service (DFAS), DFAS did not provide Petitioner interest on her back pay award. On May 21, 2020, the Agency submitted a final compliance report. The final compliance report contains a screenshot of Petitioner’s Leave and Earnings Statement that shows that Petitioner was paid $2,834.35 in interest in her paycheck for the pay period ending March 14, 2020. 2020002434 3 Beginning at page 36, the final compliance reports also contains Back Pay Computation Summary Reports from DFAS that show how the Agency calculated adjusted gross back pay plus interest. ANALYSIS AND FINDINGS EEOC Regulation 29 C.F.R. § 1614.503(a) provides that an aggrieved person may petition for enforcement of an order issued by the Commission under its appellate jurisdiction. In this case, Petitioner alleges that the Agency is not in compliance with the Commission's order in EEOC Appeal No. 0120140904. Specifically, her renewed petition for enforcement contends that, as of January 2020, the Agency had not paid her interest on her back pay award or explained how it calculated the amount of back pay and interest owed to Petitioner. While Petitioner did not provide her own calculations of the amount of back pay and interest, she seeks to know how the Agency arrived at its amount, as directed in our prior order. After a review of the record, we find that the Agency’s final compliance report included the DFAS Back Pay Computation Summary Reports. These documents show the formulas, methods, and assumptions that were used to calculate the amount of back pay and the amount of interest owed to Petitioner. There is also supporting documentation showing that the Agency paid the amount owed to Petitioner. We therefore find that the Agency has complied with our order regarding the calculation of back pay and interest. CONCLUSION Accordingly, the Commission finds that the Agency has complied with the order in Appeal No. 0120140904 and DENIES Petitioner's petition for enforcement. PETITIONER’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. 2020002434 4 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 Petitioner’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 November 3, 2020 Date