Complainant,v.Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

Aug 7, 2013

0720120025 (E.E.O.C. Aug. 7, 2013)

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

,
Complainant,

v.

Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.

Appeal No. 0720120025

Hearing No. 541-2006-00146X

Agency No. 2003-0554-20051033454

DECISION

Following its April 10, 2012 final order, the Agency filed a timely appeal pursuant to 29
C.F.R. § 1614.405(a). On appeal, the Agency requests that the Commission affirm its
rejection of an EEOC Administrative Judge’s finding of discrimination in violation of Title VII
of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq. For the
following reasons, the Commission REVERSES the Agency’s final order.

BACKGROUND

Complainant worked as a GS-7 Health Technician (Ophthalmology) at the Agency’s VA
Medical Center in Denver, Colorado. Complainant worked regularly with the GS-9 Health
Technician/Clinical Coordinator (CC), and CC trained Complainant to perform her clinical
coordinator duties. These duties included technical and administrative duties including
reviewing consults, setting up for minor procedures, preparing rooms and patients for surgery,
performing photography, and triaging referrals. In June 2005, CC informed the then-Chief of
Staff that she wished to accept early retirement. CC’s position was considered “essential;”
therefore, she needed management approval prior to her retirement. CC informed the Chief
that she had been grooming Complainant to become her replacement. Based on this
information, CC’s retirement was approved.

After CC retired, Complainant continued to perform her technician duties along with the
clinical coordinator duties. Complainant believed that she was entitled to GS-9 level pay for
performing the same duties that CC previously performed. Complainant discussed this with
her supervisor (S1) who agreed that Complainant was essentially performing two jobs and
higher-grade work. S1 requested guidance from the Chief of Human Resources (S2) who
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suggested that they attempt to get the position upgraded rather than attempt to promote
Complainant or otherwise compensate her for the additional work.

Complainant submitted a revised position description which was reviewed by the Human
Resources Classification Specialist (HR1). HR1 based his review on the GS-7 Health
Technician position description that Complainant submitted and not on the amount of work
Complainant actually performed. As a result, HR1 determined that the position was properly
graded at the GS-7 level. Complainant claimed that S1 later told her that S2 had said that
Complainant would not be promoted/have her position upgraded because of her prior EEO
activity. Complainant received awards and overtime; however, management took no other
steps to additionally compensate or promote Complainant for performing the work of the two
positions.

On September 14, 2005 (and amended on March 15, 2006), Complainant filed a formal
complaint alleging that the Agency discriminated against her in reprisal for prior protected
EEO activity when:

1. On or about June 22, 2005, she was assigned the duties of two positions; and

2. On or about March 6, 2006, management officials informed Complainant that her
upgrade/promotion was denied, and her supervisor stated, “I'm not going to keep
this a secret, it was because of your grievance/EEOs against management.”

At the conclusion of the investigation, Complainant was provided with a copy of the report of
investigation (ROI) and notice of her right to request a hearing before an EEOC Administrative
Judge (AJ1). Complainant timely requested a hearing, but AJ1 granted the Agency’s motion
for summary judgment and issued a decision on February 28, 2008. AJ1 found that
Complainant had not been subjected to reprisal as alleged. The Agency subsequently issued a
final order adopting AJ1’s decision. Complainant appealed, and in v. Dep’t of
Veterans Affairs, EEOC Appeal No. 0120082252 (Jan. 8, 2010), the Commission vacated the
final order and remanded the matter for a hearing. The Administrative Judge assigned to the
case (AJ2) held a hearing on June 16 and 17, 2011, and issued a decision on February 28,
2012.

In the decision, AJ2 initially determined that Complainant established a prima facie case of
reprisal. AJ2 found that S1’s testimony established that S2, who directed the response to
Complainant’s position upgrade request, specifically mentioned Complainant’s prior protected
EEO activity. In addition, a co-worker testified that she heard S2 say that anyone who filed an
EEO complaint or grievance would have a hard time getting promoted.

The Agency reasoned that the decision to not upgrade Complainant’s position was made by
HR1 who was unaware of Complainant’s EEO activity. AJ2 found that the proper focus was
on S2’s decision to not place Complainant in CC’s position and his approach in trying to
upgrade Complainant’s position. Prior to S2 becoming involved, it appeared that the Agency
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intended to place someone into the vacated position and CC and the then-Chief appeared to
believe that Complainant would be the one to fill the position at the GS-9 level. AJ2 found that
under S2’s direction, the Agency took a convoluted approach to upgrading Complainant’s
position when all it needed to do was place Complainant into the GS-9 position. Thus, AJ2
determined that the Agency’s reasons for its actions were not believable and concluded that the
decision to require Complainant to perform two jobs while refusing to upgrade her position
was in retaliation for Complainant’s prior protected EEO activity.

Turning to remedies, AJ2 ordered the Agency to place Complainant in the Health Technician
(Clinical Coordinator) position at the GS-9 level and to pay back pay with interest in the
amount she would have earned had she been promoted in June 2005. As to compensatory
damages, AJ2 found that Complainant had suffered considerable emotional distress for
approximately five years. Not only did she suffer the stress of working two positions, but that
the stress was exacerbated by knowing that it was because of her prior EEO complaints.
Complainant experienced mood changes, sleeplessness, depression, hair loss, and overeating or
loss of appetite. As a result, AJ2 determined that Complainant was entitled to $50,000.00 in
non-pecuniary compensatory damages. In addition, AJ2 ordered the Agency to deposit in
Complainant’s Thrift Savings Plan account back contributions for the difference in her earnings
and contributions.

Next, AJ2 considered Complainant’s petition for attorney’s fees. Complainant sought 82.34
hours at $420.00 an hour. AJ2 determined that the hours claimed were spent appropriately,
but a rate of $350.00 an hour was reasonable for the area. Thus, AJ2 awarded Complainant
$28,819.00 in attorney’s fees. In addition, AJ2 awarded Complainant the requested $2,180.22
in costs. The Agency subsequently issued a final order in which it did not implement AJ2’s
decision and filed the instant appeal.

CONTENTIONS ON APPEAL

On appeal, the Agency contends that AJ2 erred in concluding that the Agency could have
placed Complainant into a GS-9 position noncompetitively. The Agency maintains that it
attempted to promote Complainant through accretion-of-duties; however, an impartial classifier
concluded that Complainant did not qualify for a promotion. Additionally, the Agency argues
that the AJ erred in finding that Complainant was assigned the duties of two positions in
retaliation for her protected EEO activity. The Agency contends that S2 played no role in
Complainant’s assumption of CC’s duties and that S1 and Complainant worked together to
revise her position description in the hope that she would receive an accretion-of-duties
promotion. Finally, the Agency argues that Complainant’s claim that she was denied an
upgrade or promotion should be dismissed as a collateral attack on the Office of Personnel
Management’s classification system. Accordingly, the Agency requests that the Commission
affirm its final order in which it did not implement the AJ’s decision.

In response, Complainant challenges the Agency’s argument that it could not noncompetitively
promote Complainant and that it tried to promote her through accretion-of-duties.
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Complainant notes that the classifier only reviewed the GS-7 position and did not consider the
position description for the clinical coordinator position duties she performed as well. Further,
Complainant argues that the Agency could have promoted her since she had been performing
the GS-9 duties for approximately five years or, in the alternative, the Agency could have paid
her at the GS-9 level for performing those duties. Additionally, Complainant contends that the
Agency had the option to perform a desk audit and have a disinterested third party observe the
work Complainant performed on a daily basis. Accordingly, Complainant requests that the
Commission reverse the final order and implement the AJ’s decision.

STANDARD OF REVIEW

Pursuant to 29 C.F.R. § 1614.405(a), all post-hearing factual findings by an AJ will be upheld
if supported by substantial evidence in the record. Substantial evidence is defined as “such
relevant evidence as a reasonable mind might accept as adequate to support a conclusion.”
Universal Camera Corp. v. Nat'l Labor Relations Bd., 340 U.S. 474, 477 (1951) (citation
omitted). A finding regarding whether or not discriminatory intent existed is a factual finding.
See Pullman-Standard Co. v. Swint, 456 U.S. 273, 293 (1982). An AJ's conclusions of law
are subject to a de novo standard of review, whether or not a hearing was held.

An AJ's credibility determination based on the demeanor of a witness or on the tone of voice
of a witness will be accepted unless documents or other objective evidence so contradicts the
testimony or the testimony so lacks in credibility that a reasonable fact finder would not credit
it. See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO
MD-110), at 9-16 (Nov. 9, 1999).

ANALYSIS AND FINDINGS

To prevail in a disparate treatment claim such as this, Complainant must satisfy the three-part
evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973). Complainant must initially establish a prima facie case by demonstrating
that she was subjected to an adverse employment action under circumstances that would
support an inference of discrimination. Furnco Constr. Corp. v. Waters, 438 U.S. 567, 576
(1978). Proof of a prima facie case will vary depending on the facts of the particular case.
McDonnell Douglas, 411 U.S. at 804 n. 14. To establish a prima facie case of reprisal,
Complainant must show that (1) she engaged in protected EEO activity; (2) the Agency was
aware of the protected activity; (3) subsequently, she was subjected to adverse treatment by the
Agency; and (4) a nexus exists between her protected activity and the adverse treatment.
Whitmire v. Dep't of the Air Force, EEOC Appeal No. 01A00340 (Sept. 25, 2000).

The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its
actions. Tx. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately
prevail, Complainant must prove, by a preponderance of the evidence, that the Agency's
explanation is pretextual. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133 (2000);
St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993).
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After a careful review of the record, the Commission discerns no basis to disturb the AJ's
finding of retaliation. The findings of fact are supported by substantial evidence, and the AJ
correctly applied the appropriate regulations, policies, and laws. The Commission finds that
the record supports the AJ’s finding that there is a strong evidence of retaliatory animus in this
case as testimony revealed that S2, on at least one occasion, stated that Complainant would
have a hard time getting her position upgraded or getting a promotion because of her prior
EEO complaint and grievances.

On appeal, the Agency argues that once Complainant’s position was classified as a GS-7, it
could not legally promote Complainant temporarily or otherwise. The Commission notes,
however, that this review was conducted simply on Complainant’s GS-7 technician duties and
not the additional GS-9 duties she performed. Even though HR1 was unaware of
Complainant’s prior EEO activity, it was S2’s decision to take an unnecessarily convoluted
route to attempt to have Complainant’s GS-7 position “reclassified” rather than attempting to
compensate Complainant for performing the work of two positions or promoting Complainant
for the higher-level duties she assumed. The Commission finds that substantial evidence of
record supports the AJ's determination that Complainant proved, by a preponderance of the
evidence, that the Agency's explanations for its actions were a pretext for unlawful retaliation.

After reviewing the instant record and considering arguments on appeal, the Commission finds
that the AJ made reasonable credibility determinations, which are not contradicted by objective
evidence, and her factual findings are supported by substantial evidence. Therefore, the
Commission affirms the AJ's finding of retaliatory discrimination.

REMEDIES

Finding that the Agency's actions constituted unlawful reprisal, the Commission now turns to
the AJ’s findings regarding remedies. Pursuant to section 102(a) of the Civil Rights Act of
1991, a complainant who establishes his or her claim of unlawful discrimination may receive,
in addition to equitable remedies, compensatory damages for past and future pecuniary losses
(i.e., out of pocket expenses) and non-pecuniary losses (e.g., pain and suffering, mental
anguish). 42 U.S. C. § 1981a(b)(3). For an employer with more than 500 employees, such as
the agency, the limit of liability for future pecuniary and non-pecuniary damages is $300,000.
Id.

As an initial matter, the Commission notes that the Agency submitted no arguments regarding
the equitable relief ordered. As a result, the Commission discerns no basis to disturb the AJ’s
award of equitable relief, including retroactively promoting Complainant, paying Complainant
back pay with interest and benefits, and making back contributions into Complainant’s Thrift
Savings Plan.

The Agency also raised no arguments regarding the payment of the compensatory damages
award. The Commission finds that the AJ’s award of $50,000.00 for non-pecuniary
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compensatory damages was appropriate and not “monstrously excessive.” The amount takes
into consideration the severity of the harm suffered, the length of time Complainant suffered
the harm, and is consistent with prior Commission precedent. See Lindsay v. Dep't of
Veterans Affairs, EEOC Appeal No. 0720070016 (July 26, 2007), request for recon. den.,
EEOC Request No. 0520070874 (Sept. 26, 2007) ($50,000 awarded where Complainant
experienced stress and weight loss, became withdrawn, lost energy, and interacted less with
friends); Scheels v. U.S. Postal Serv., EEOC Appeal No. 07A50005 (July 28, 2005) ($50,000
awarded where Complainant experienced emotional distress and marital problems, and was
described by her co-workers as unhappy, upset, and frustrated).

Attorney’s Fees

The Commission's regulations authorize the award of reasonable attorney's fees and costs to a
prevailing complainant. 29 C.F.R. § 1614.501(e); see also EEOC's Management Directive
110 (MD-110) (Nov. 9, 1999) Chapter 11. Fee awards are typically calculated by multiplying
the number of hours reasonably expended times a reasonable hourly rate, an amount also
known as a lodestar. See 29 C.F.R. § 1614.501(e)(2)(ii)(B); Hensley v. Eckerhart, 461 U.S.
424 (1983).

Complainant sought an hourly rate of $420 an hour; however, the AJ determined that
appropriate rate was $350 an hour based on prevailing market rate in the area. The AJ further
found that the 82.34 hours expended were reasonable. As a result, the AJ awarded
Complainant $28,819.00 in attorney’s fees. The Agency did not submit any arguments
challenging the AJ's award of attorney's fees and costs. Accordingly, the Commission finds
that attorney’s fees in the amount of $28,819.00 and $2,180.22 in costs are appropriate.

CONCLUSION

Based on a thorough review of the record and the contentions on appeal, the Commission
REVERSES the final order and directs the Agency to comply with the Orders below.

ORDER

Within 120 days of the date this decision becomes final, the Agency shall:

1. Retroactively promote Complainant to the Health Technician (clinical coordinator)
position at a GS-9 grade, at the appropriate step.

2. Determine the appropriate amount of back pay and all other benefits owed to
Complainant (with interest) pursuant to 29 C.F.R. § 1614.501. This includes
appropriately adjusted contribution to her Thrift Savings. Complainant shall cooperate
in the Agency's efforts to compute the amount of back pay and benefits due, as
appropriate, and shall provide all relevant information requested by the Agency. If
there is a dispute regarding the exact amount of back pay and/or benefits, the Agency
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shall issue a check to Complainant for the undisputed amount within 60 days of the date
the Agency determines the amount it believes to be due.

3. Pay Complainant $50,000.00 in non-pecuniary compensatory damages.

4. Pay Complainant attorney’s fees in the amount of $28,819.00 and $2,180.22 in costs.

5. Provide two hours training for the responsible management officials with an emphasis
on retaliation.

6. Consider taking appropriate disciplinary action against the responsible management
officials. The Commission does not consider training to be a disciplinary action. If the
Agency decides to take disciplinary action, it shall identify the action taken. If the
Agency decides not to take disciplinary action, it shall set forth the reasons for its
decision not to impose discipline. If any of the management officials have left the
Agency's employ, the Agency shall furnish documentation of their departure dates.

POSTING ORDER (G0610)

The Agency is ordered to post at its VA Medical Center in Denver, Colorado, copies of the
attached notice. Copies of the notice, after being signed by the Agency’s duly authorized
representative, shall be posted by the agency within 120 calendar days of the dale this decision
becomes final, 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 at the
address cited in the paragraph entitled “Implementation of the Commission's Decision,” within
ten calendar days of the expiration of the posting period.

ATTORNEY'S FEES (H0610)

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 this decision becoming final. The Agency shall then process the
claim for attorney's fees in accordance with 29 C.F.R. § 1614.501.

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IMPLEMENTATION OF THE COMMISSION'S DECISION (K0610)

Compliance with the Commission's corrective action is mandatory. The Agency shall submit
its compliance report within thirty (30) calendar days of the completion of all ordered
corrective action. The report shall be submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC
20013. The Agency's report must contain supporting documentation, and the Agency must
send a copy of all submissions to the Complainant. 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.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0610)

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 or within
twenty (20) calendar days of receipt of another party’s timely request for reconsideration. See
29 C.F.R. § 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R.
Part 1614 (EEO MD-110), at 9-18 (November 9, 1999). All requests and arguments must be
submitted to the Director, Office of Federal Operations, Equal Employment Opportunity
Commission, P.O. Box 77960, Washington, DC 20013. 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 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

(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

(Z0610)
If you decide to file a civil action, and if you do not have or cannot afford the services of an
attorney, you may request from the Court that the Court appoint an attorney to represent you
and that the Court also permit you to file the action without payment of fees, costs, or other
security. See

Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et
seq.; the Rehabilitation Act of 1973, as amended, 29 U.S.C. §§ 791, 794(c). The grant or
denial of the request is within the sole discretion of the Court. Filing a request for an attorney
with the Court does not extend your time in which to file a civil action. Both the request and
the civil action must be filed within the time limits as stated in the paragraph above (“Right to
File a Civil Action”).

FOR THE COMMISSION:

______________________________
Carlton M. Hadden, Director
Office of Federal Operations

August 7, 2013
Date