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

Equal Employment Opportunity Commission

Mar 21, 2022

Appeal No. 2021000610 (E.E.O.C. Mar. 21, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Terrence H.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs (Veterans Health Administration), Agency. Appeal No. 2021000610 Agency No. 200P-0644-2013102570 DECISION On September 25, 2020, via counsel, Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from an August 20, 2020 final Agency determination (FAD) that it complied with its November 8, 2018 final order and the order in EEOC Appeal No. 2019005811 (June 30, 2020). 29 C.F.R. § 1614.402; 29 C.F.R. § 1614.405 and .504(b). BACKGROUND Complainant was employed by the Agency as a Physician (General Surgeon), VM-0602-PHYS, at the Veterans Affairs Medical Center, Surgical Service, in Phoenix, Arizona. On July 5, 2013, Complainant filed an equal employment opportunity (EEO) complaint, as amended, alleging that he was discriminated against in violation of Title VII2 when, in part, the Agency put him on administrative leave, suspended his clinical privileges, and terminated him during his probationary period. 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. 2 Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq. 2021000610 2 Following an EEO investigation and hearing before an EEOC Administrative Judge (AJ), the AJ decided that Complainant was discriminated against as alleged above and on other incidents. In relevant part the AJ ordered the Agency, as summarized below, to pay Complainant: 1. Back pay from the date of his termination with interest, including out-of-pocket costs he incurred to replace benefits, such as medical coverage.3 2. Front pay under specified circumstances. 3. All appropriate tax-deferred contributions to his Thrift Savings Program (TSP) account during the back pay period, and earnings on them. 4. A tax consequences award in an amount to be determined after the Agency has calculated and paid the Complainant's back and front pay awards and following the Complainant's submission to the Agency of the amount of the adverse consequences of the lump sum payment(s) in the tax year of those awards. By final order on November 8, 2018, the Agency adopted the AJ’s decision, including the remedies ordered concerning back and front pay. Complainant filed an appeal in August 2019, docketed as EEOC Appeal No. 2019005811, contending, in relevant part, that the Agency had not paid him any back and front pay. On January 30, 2020, while the appeal was pending, the Agency issued checks to Complainant for $882,447.59 in back pay, $2,466,118.66 in front pay, and $252,131.55 in interest. Complainant then retained a new law firm which argued that while he had now received checks for back and front pay, the Agency did not give him information on how these awards were calculated. The Commission agreed and found it could not determine if the Agency fully complied with its November 8, 2018 final order on back and front pay. Hence, in EEOC Appeal No. 2019005811 (June 30, 2020), the Commission ordered the Agency to: (1) supplement the record with clear, plain language explanations of its calculations on back and front pay, and (2) issue a new final decision on whether it was in full compliance with its November 8, 2018 final order. The Agency then supplemented the record with calculations and issued a final decision concluding it fully complied its November 8, 2018 final order concerning back and front pay. The instant appeal followed. 3 The AJ explained that the Agency’s calculation of back pay “should mirror increases that he would have had if he had remained employed, presumably by comparison to those physicians most similarly-situated to him.” 2021000610 3 ANALYSIS The parties disagree on whether the Agency fully complied with the back and front pay awards in its own November 8, 2018 final order, as well as the Commission’s order in EEOC Appeal No. 2019005811 to give clear and plain calculations of these awards. It is undisputed that on January 30, 2020, the Agency sent checks to Complainant for $882,447.59 in back pay, $2,466,118.66 in front pay, and $252,131.55 in interest, and represented this was full payment for the back and front pay awards in its November 8, 2018 final order. On August 20, 2020, the Agency submitted a report to the EEOC’s Office of Federal Operations detailing its compliance with the order in EEOC Appeal No. 2019005811 to give calculations supporting its back and front pay awards. The Agency’s compliance report concluded that: a. Back pay [was] calculated by DFAS [Defense Finance and Accounting Service] based on the SF50s [notifications of personnel actions]… which reflect the pay [Complainant] was to receive… as well as the pay chart for the associated year to calculate back pay from November 2, 2013 through November 10, 2018. The calculations include [Complainant’s] regular earning, market pay, and… the leave that would have been accrued. The deductions that were subtracted from the Gross pay were… FERS [Federal Employees Retirement System], Medicare, State and Federal Taxes, and TSP (Thrift Savings Plan). b. Front pay [was] calculated by DFAS based on the SF50s and the pay chart for each year moving forward until [Complainant’s] retirement date. I am attaching the calculations which reflect the front pay… calculated from September 9, 2018 through November 13, 2031. The only deductions that were deducted from the pay calculations was the FERS… Federal and state tax, Medicare, and Social Security. Following this summary, the Agency’s report included pages of actual calculations on charts that were identified and labeled in detail. Also, on August 20, 2020, the Agency issued a new final decision finding it fully complied with the orders on back and front pay, including giving a clear, plain language explanation of how these awards were calculated. In his October 26, 2020 appeal brief, Complainant argues the Agency gave inadequate documentation of its calculations of back and front pay. In sum, he argues that while the Agency’s compliance report indicates that back and front pay were calculated based on SF50s and pay charts, it did not include full copies of these documents. 2021000610 4 Complainant argues that the calculation of back pay should include salary increases he would have gotten if he remained employed, "presumably by comparison to those physicians most similarly-situated to him," but the documentation in the compliance report does not identify how the increases were calculated or whether or how the Agency considered physicians similarly situated to him in making them. Complainant contends there is no documentation on the bases of the Agency’s assumptions and calculations for front pay. Finally, he argues the Agency does not identify the basis of calculations for FERS or TSP contributions. We agree with Complainant’s arguments. The compliance report did not include physician pay tables from 2013 - 2018, and the ones included contained steps, not grades. It also included no SF50s reflecting grade levels and steps - or their equivalent. The calculations have no information on whether Complainant’s back pay tracked the pay of similarly situated physicians,4 or the basis of assumptions in creating physician pay tables used in calculating front pay. In the absence of SF50s covering the back and front pay periods, the record does not show what grades and steps - or their equivalent the Agency assumed Complainant would, or will be at, any given time, nor does the record have the Agency’s explanations for the grade and step assumptions it made for the back and front pay periods. We agree with Complainant that the Agency did not give the basis of its calculations for FERS or TSP contributions. As such, we cannot determine whether or not the Agency is, in fact, in full compliance with its own November 8, 2018 final order and our decision in EEOC Appeal No. 2019005811. Complainant also argues that he should be allowed to submit evidence to the Agency on the tax consequences arising from getting lump sum payments in one tax year. We agree and find this applies to the front and back pay with interest paid to Complainant in 2020. Complainant may submit evidence of tax consequences to the Agency. While the Agency’s November 8, 2018 final order did not precisely identify when this evidence must be submitted, it is implicit it must be within a reasonable amount of time. A reasonable amount of time is within 180 days after the date of this decision. If Complainant receives another lump sum payment for back pay, front pay, and/or interest, he may separately submit evidence to the Agency of the tax consequences caused by the additional payment. CONCLUSION The Agency’s August 20, 2020 final decision is VACATED, and the matter REMANDED for further action as detailed in the following Order. 4 Depending on the circumstances, an example of a similarly situated physician could be Complainant’s replacement, if any. 2021000610 5 ORDER Within 120 days from the date of this decision, the Agency shall: 1. Supplement the record with further documentation, per guidance in this decision, supporting its calculations of Complainant’s back and front pay, including all benefits. 2. Issue a FAD, with appeal rights to the Commission, on whether it has complied with its November 8, 2018 final order. Prior to issuing the FAD, the Agency shall give Complainant the additional documentation, allow him to comment on whether it is sufficient, and consider the comments. Within 180 days from the date of this decision: 3. Complainant has the opportunity to submit to the Agency a request and evidence of his tax consequences caused by receiving lump sum payments for back and front pay with interest in 2020, rather than earning and receiving his wages in the normal course over time had he remained employed by the Agency. Within 90 days of receiving Complainant’s request, the Agency shall complete processing it and pay the tax consequences. If there is a dispute about the exact amount of tax consequences, the Agency shall issue a check to the Complainant for the undisputed amount within 60 days of the date the Agency determines the amount it believes to be due. The Agency is directed to submit a report of compliance, as provided in the statement entitled “Implementation of the Commission’s Decision.” The report shall include documentation verifying that the corrective action has been implemented. 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). 2021000610 6 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 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). 2021000610 7 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 March 21, 2022 Date