Velda F.,1 Complainant,v.Robert Wilkie, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

Aug 15, 2019

0120181190 (E.E.O.C. Aug. 15, 2019)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Velda F.,1
Complainant,

v.

Robert Wilkie,
Secretary,
Department of Veterans Affairs,
Agency.

Appeal No. 0120181190

Hearing No. 530-2014-00208X

Agency No. 200H-0460-2013103453

DECISION

On February 20, 2018, Complainant filed an appeal with the Equal Employment Opportunity
Commission (EEOC or Commission) claiming that the Agency was not in compliance with its
December 14, 2017 final order implementing the decision of an EEOC Administrative Judge
finding discrimination. The appeal is accepted pursuant to 29 C.F.R. § 1614.401(e).2

BACKGROUND

During the period at issue, Complainant worked as a Clinical Pharmacist, GS-12, at the
Agency’s Medical Center in Wilmington, Delaware.

Complainant filed an EEO complaint claiming that she was subjected to discrimination based on
her race (Black) when she applied, and interviewed for the position of Associate Pharmacy

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 The Commission notes that Complainant’s appeal is referred to a Petition for Enforcement.
However, a Petition for Enforcement is only available to enforce an order of the Commission
itself. See 29 C.F.R. § 1614.503. Therefore, we will address Complainant’s appeal as a claim
regarding the Agency’s noncompliance with its own final order, dated December 14, 2017. See
29 C.F.R. § 1614.504.
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Chief, GS-0660-13 (Vacancy ID Number: 828101), but on May 23, 2013 received a non-
selection notice. Following a hearing on the complaint, an EEOC Administrative Judge (AJ)
concluded Complainant had established her discrimination claim. On December 14, 2017, the
Agency issued its Final Order fully implementing the AJ’s decision.

The Agency also implemented the AJ’s order, dated October 25, 2017, which required the
Agency to take the following actions:

1. Offer Complainant, no later than 45 calendar days after the date the AJ’s decision
becomes final, the position of GS-0660-13 Assistant Chief, Pharmacy Services at the
Wilmington, Delaware VA Medical Center, or if no such position now exists, a
substantially equivalent GS-13 position at the same level and rate of pay that
Complainant would currently hold if she had been selected for the position in May
2013.

2. Determine the appropriate amount of back pay, if any (with interest, if applicable)
and other benefits due Complainant, pursuant to 29 C.F.R. § 1614.501, no later than
45 calendar days after the date the AJ’s decision becomes final.

3. Provide eight (8) hours of in-person EEO training to the responsible management
official and the Director of the facility regarding their responsibilities under Title VII
of the Civil Rights Act of 1964, as amended.

4. Post a notice of the finding.

5. Pay Complainant $7,000.00 in nonpecuniary compensatory damages within thirty
(30) calendar days of the date the AJ’s decision becomes final.

6. Pay attorney’s fees and costs in the amount of $21,189.53 within thirty (30) days of
the date the AJ’s decision becomes final.

On February 9, 2018, Complainant, through counsel, notified the Agency that it had until
February 16, 2018 to comply with the AJ’s order.

On February 20, 2018, Complainant, through counsel, filed an appeal asserting that the Agency
had not fully complied with its December 14, 2017 final order. Specifically, Complainant
asserts, that as of February 16, 2018, the Agency failed to: (1) offer Complainant the Assistant
Chief, Pharmacy Services position or a substantially equivalate position, (2) pay Complainant
any portion of the backpay not in dispute and make any final calculations on the backpay amount
in dispute despite some discussion between Complainant and the Agency; (3) provide eight
hours of EEO training to the responsible management official and Director; and (4) post a notice
of the finding.

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Complainant, through counsel, also submits an affidavit, dated July 12, 2018, claiming that the
“Agency has employed retaliatory tactics in combining three (3) separate positions into one (1)
position rather than simply offering [her] an equivalent position as ordered by the AJ.”
Specifically, Complainant states that the Agency offered her an Associate Chief of Pharmacy
Information, Quality Assurance and Pharmacy Operations for the Community Based Outpatient
Clinics (GS-660-13) with 50% clinical functions, effective May 3, 2018. Complainant claims
that this position combines three separate positions – Pharmacy ADPAC, Quality Assurance;
Associate Chief of CBOCs, Residency Director; and Clinical Pharmacy Specialist.

The Agency has not responded to Complainant’s appeal.

ANALYSIS AND FINDINGS

When discrimination is found, the Agency must provide Complainant with a remedy that
constitutes full, make-whole relief to restore her as nearly as possible to the position that she
would have occupied absent the discrimination. See, e.g., Franks v. Bowman Transp. Co., 424
U.S. 747, 764 (1976); Albemarle Paper Co. v. Moody, 422 U.S. 405, 418-19 (1975); Adesayna
v. U.S. Postal Serv., EEOC Appeal No. 01933395 (July 21, 1994); see also 29 C.F.R. §
1614.501.

Upon review, we cannot determine whether the Agency is in full compliance with the relief
ordered. The Agency has not responded to Complainant’s appeal or provided any documentation
supporting that it has implemented the ordered relief. Accordingly, we will remand this matter
to the Agency and order compliance with the AJ’s order.

CONCLUSION

Because the Agency has not provided any documentation establishing compliance, we remand
this matter to the Agency to provide relief consistent with 29 C.F.R. § 1614.501 and the decision
of the Administrative Judge, as restated, and in the Order below.

ORDER
To the extent that it has not already done so, the Agency is ORDERED to provide the following
relief to Complainant within sixty (60) calendar days of the date of this decision, unless other
time deadlines are herein ordered:
1. The Agency shall offer Complainant retroactive placement in the position of GS-0660-13
Assistant Chief, Pharmacy Services at the Wilmington, Delaware VA Medical Center, or
if no such position now exists, a substantially equivalent GS-13 position. The position
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shall be at the level and rate of pay that Complainant would currently hold if she had
been selected for the position in May 2013.3
2. The Agency shall determine the appropriate amount of back pay, if any (with interest, if
applicable) and other benefits due Complainant, pursuant to 29 C.F.R. § 1614.501.
Complainant shall cooperate in the Agency’s efforts to compute the amount of back pay
and benefits due, and shall provide all relevant information requested by the Agency.
The Agency shall provide to Complainant a clear and detailed, plain language
explanation of its back pay calculations, including the calculation of all benefits provided
to Complainant and providing explanations of any acronyms and abbreviations, for
example, that are not familiar to others reviewing the calculations or that contains
language peculiar to the Agency. The Agency shall also provide documentation
supporting its calculations and information concerning who prepared the computations
and any relevant Agency policy or Office of Personnel Management guidelines. The
Agency shall afford Complainant at least sixty (60) days to respond to its back pay and
other calculations. Complainant must cooperate with the Agency in providing
information requested by the Agency where the information is appropriate and relevant to
calculating a back pay determination. If there is a dispute regarding the exact amount of
back pay and/or benefits, the Agency shall issue a check to Complainant for the
undisputed amount within thirty (30) calendar days of the date the Agency determines the
amount it believes to be due.
3. The Agency shall provide eight (8) hours of in-person EEO training to the responsible
management official and the Director of the facility regarding their responsibilities under
Title VII of the Civil Rights Act of 1964, as amended.
4. The Agency shall post copies of the attached notice. Copies of the notice, after being
signed by the Agency’s duly authorized representative, shall be posted and maintained
for 365 consecutive days, in conspicuous places at the U.S. Department of Veterans
Affairs Medical Center in Wilmington, Delaware, including all places where notices to
employees and applicants for employment are customarily posted; the Agency shall take

3 The Commission has consistently held that a “substantially equivalent” position is one that is
similar in duties, responsibilities, and location (reasonable commuting distance) to the position
for which the complainant originally applied. See, e.g., Monroig v. U.S. Commission on Civil
Rights, EEOC Petition No. 04A40029 (Sept. 29, 2005); Spicer v. Dep't of the Interior, EEOC
Petition No. 04980007 (Sept. 24, 1998); Patterson v. Dep't of Agriculture, EEOC Request No.
05940079 (Oct. 21, 1994). The burden is on the Agency to establish that the position offered to
Complainant in fact is substantially equivalent to the position lost. See Rai v. Dep't of the
Interior, EEOC Appeal No. 01901186 (May 17, 1990). We note that Complainant has asserted
that the position offered to her in May 2018 was not substantially equivalent because it was the
combination of three other positions. If there is a dispute concerning the position offered to
Complainant, the Agency must provide evidence that it is substantially equivalent to the one she
was not selected for.
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reasonable steps to ensure that said notices are not altered, defaced, or covered by any
other materials.
5. The Agency is ordered to pay Complainant $7,000.00 in nonpecuniary compensatory
damages.
6. The Agency is ordered to pay attorney’s fees and costs in the amount of $221,189.53.
The Agency is further 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 correction action has been implemented.
POSTING ORDER (G0617)
The Agency is ordered to post at its Medical Center facility copies of the attached notice. Copies
of the notice, after being signed by the Agency's duly authorized representative, shall be posted
both in hard copy and electronic format by the Agency within 30 calendar days of the date
this decision was issued, and shall remain posted for 60 consecutive days, in conspicuous places,
including all places where notices to employees are customarily posted. The Agency shall take
reasonable steps to ensure that said notices are not altered, defaced, or covered by any other
material. The original signed notice is to be submitted to the Compliance Officer as directed in
the paragraph entitled "Implementation of the Commission's Decision," within 10 calendar days
of the expiration of the posting period. The report must be in digital format, and must be
submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g).
ATTORNEY'S FEES (H1016)
If Complainant has been represented by an attorney (as defined by 29 C.F.R.
§ 1614.501(e)(1)(iii)), she 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 the date this decision was issued. 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.
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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 CFR § 1614.503(f) for enforcement by that agency.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
The Commission may, in its discretion, reconsider the decision in this case if the Complainant or
the Agency submits a written request containing arguments or evidence which 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 to reconsider, with supporting statement or brief, must be filed with the Office of
Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. A party
shall have twenty (20) calendar days of receipt of another party’s timely request for
reconsideration in 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). All requests and arguments must be submitted to the
Director, Office of Federal Operations, Equal Employment Opportunity Commission.
Complainant’s request may be submitted via regular mail to P.O. Box 77960, Washington, DC
20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. In the absence of a
legible postmark, the request to reconsider shall be deemed timely filed if it is received by mail
within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. The
agency’s request must be submitted in digital format via the EEOC’s Federal Sector EEO Portal
(FedSEP). See 29 C.F.R. § 1614.403(g). The request or opposition must also include proof of
service on the other party.
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Failure to file within the time period will result in dismissal of your request for reconsideration
as untimely, unless extenuating circumstances prevented the timely filing of the request. Any
supporting documentation must be submitted with your 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

August 15, 2019
Date