Complainant,v.Robert McDonald, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

Feb 11, 2015

0120130152 (E.E.O.C. Feb. 11, 2015)

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

,
Complainant,

v.

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

Appeal No. 0120130152

Hearing No. 443-2011-00109X

Agency No. 200J-0618-2010104296

DECISION
On October 12, 2012, Complainant filed an appeal concerning her equal employment
opportunity (EEO) complaint alleging employment discrimination in violation of Section 501 of
the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. For
the following reasons, the Commission VACATES the Agency’s decision that it has complied
with the Agency’s final order.

BACKGROUND
Complainant was employed as a Staff Registered Nurse at the Veterans Medical Center in
Minneapolis, Minnesota from October 30, 2005, until her termination on July 21, 2010.

On October 1, 2010, Complainant filed an EEO complaint alleging that the Agency
discriminated against her on the basis of disability (alcoholism) when:

1. On July 7, 2010, Complainant was provided a last chance agreement and on July
21, 2010, she was removed from her position as a Registered Nurse (RN).

Complainant also alleged she was subjected to a hostile work environment based on her
disability when:

2. On April 8, 2010, Complainant was detailed to performing non-RN duties in
Primary Care;
3. On July 7, 2010, Complainant was offered a last chance agreement, which she
declined;
0120130152

2
4. On July 21, 2010, she was removed from her position as a Registered Nurse.

At the conclusion of the investigation, the Agency provided Complainant with a copy of the
report of investigation and notice of her right to request a hearing before an EEOC
Administrative Judge (AJ). Complainant timely requested a hearing and the AJ held a hearing
on September 27, 2011, and issued a decision on December 7, 2011.

In her decision, the AJ found Complainant was not subjected to a hostile work environment
based on her disability. However, the AJ found the Agency subjected Complainant to
discrimination based on her disability when she was removed from the Agency. As to
remedies, the AJ ordered the Agency to reinstate Complainant in the position of Staff
Registered Nurse and pay her back pay, plus interest, and other benefits from the time she was
terminated. The AJ ordered the Agency to expunge any adverse materials relating to the
termination. The AJ ordered the Agency to conduct training on disability discrimination for all
managerial employees at the facility. The AJ also stated Complainant should submit a verified
statement of attorney’s fees and costs within 20 days of receipt of the AJ’s decision.

The Agency subsequently issued a final order on November 15, 2011. The Agency’s final
order fully implemented the AJ’s decision and ordered relief.

Subsequently, Complainant submitted her verified statement of attorney’s fees. The Agency
did not submit a response. On December 7, 2011, the AJ issued a decision on attorney’s fees
and awarded Complainant $90,675.00 in attorney’s fees.

On December 28, 2011, the Agency issued a final order. The Agency’s final order fully
implemented the AJ’s decision on attorney’s fees.

Complainant contacted the Agency alleging that the Agency failed to comply with its
November 15, 2011 final order. On September 11, 2012, the Agency issued a letter stating it
had complied with all provisions in its final order.

Complainant filed the present appeal with the Commission on October 12, 2012. On appeal,
Complainant alleges the Agency has failed to comply with its November 15, 2011 final order.
With regard to back pay, Complainant states that but for her termination, she would have
worked and received holiday pay for half of the 15 available federal holidays during the
relevant time period. Complainant also states that but for her termination, she would have
worked every weekend just as she had been working for a substantial period of time prior to
the Agency terminating her. Additionally, Complainant claims she should have received a
Step 9 pay raise prior to her termination and she claims she was not paid for that increase.
Moreover, Complainant states she was not paid the retention and holiday pay owed or the
weekend or shift differential pay with interest that is due for the 17 months she was terminated.

With regard to her schedule, Complainant states she was not returned to her prior schedule of
12-hour night shifts from 7:30 p.m. until the following morning at 8:00 a.m. and every
0120130152

3
weekend from Friday until Monday morning. Complainant also states prior to her termination
she worked one eight-hour shift during one of the two weeks of each pay period.

Rather, Complainant states when she returned to the Agency on December 19, 2011, she was
instructed to return to day shift orientation. Complainant states she was on orientation and
training for two months until February 2012, working only Monday through Friday day shift in
her original unit. Complainant states the orientation was a basic orientation as though she were
a brand new employee. Complainant states that during the time of her orientation and
preclusion from return to her pre-termination schedule, she was not paid the night shift or
weekend shift differential.

In addition, Complainant states that since she completed her orientation she has not been
returned to her prior position. Complainant claims that as a result of not being returned to her
prior schedule, she is not being paid the night shift differential. Complainant further states that
now, some ten months later after her return to the Agency and the order of reinstatement, she
is working only eight-hour night shifts and every other weekend. Complainant alleges she
continues to work without pay for the night shift differential or the weekend differential she
previously received and states she continues to work a schedule that is not conducive to her
family life and increases her out of pocket costs for mileage and wear and tear of her vehicle
for traveling for eight-hour shifts rather than the fewer trips for 12-hour shifts.

Complainant also states that she lost health insurance coverage when she was terminated by the
Agency and as a result, she incurred medical expenses. Complainant explains that the Agency
deducted health insurance premiums from her back pay award. However, she states the
Agency “has apparently not been able to obtain retroactive health insurance coverage” for her
during the time period of her termination. Complainant states the Agency has provided no
verification of coverage despite retaining her insurance premium payments. Complainant
states she has verified that she was not covered with her insurance provider, Blue Cross Blue
Shield, and remains uncovered for the time period from August 31, 2010, to December 31,
2011. Complainant states the Agency has not returned the premiums they withheld.

Finally, Complainant states that she should have had her vacation pay reinstated for the time
period going back to July 21, 2010. Complainant states that in her position she earned five
weeks of vacation per year, which was calculated at 200 hours per year. Complainant states
that going back to July 21, 2010, would add another 2 ½ to 3 weeks of vacation time, which
she states is approximately another 100 hours. Complainant states she received an “Offline
Pay Audit Settlement” from the Agency which demonstrated that the Agency deducted vacation
from her back pay and did not correctly reinstate her vacation pay. Moreover, Complainant
states the Agency did not pay her for 17 months of sick leave she was owed during her
termination.

In a February 20, 2013 response, the Agency states Complainant has been provided back pay
and interest. With regard to her contention that she should be paid “double-time” as having
worked for “half of the 15 available federal holidays” and “every weekend” during the
0120130152

4
relevant period, the Agency states that Complainant’s argument is speculative and outside the
parameters of the AJ’s Order.

With regard to her claim that she was not returned to her prior schedule, the Agency states that
Complainant has been returned to her prior schedule. The Agency states Complainant is
currently working an eight-hour night shift and every other weekend. The Agency claims
Complainant never requested to work twelve-hour shifts or additional weekends.

With regard to her contention surrounding her health insurance coverage, the Agency states it
has executed documentation showing that Complainant elected to retroactively have her
covered during the back pay period. The Agency states it fully complied with her request;
however, Complainant and her health insurer are engaged in a dispute regarding the issue.
The Agency claims Complainant’s dispute lies with the insurance company and not the
Agency. The Agency argues that Complainant’s request is outside the AJ’s Order.

Finally, the Agency states that it had fully complied with the AJ’s Order concerning payment
of vacation and sick leave.

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. Id.

If Complainant does not receive a response or is not satisfied with said
response, the Complainant may appeal to the Commission for a determination as to whether the
agency is in compliance. 29 C.F.R. § 1614.504(b).
The purpose of a back pay award is to restore to Complainant the income she would have
otherwise earned, but for the discrimination. See Albemarle Paper Co. v. Moody, 422 U.S.
405 (1975); Davis v. U.S. Postal Serv., EEOC Petition No. 04900010 (Nov. 29. 1990). Back
pay should include all forms of compensation and must reflect fluctuations in working time,
overtime rates, penalty overtime, Sunday premium and night work, changing rate of pay,
transfers, promotions, and privileges of employment to which Complainant would have been
entitled but for the discrimination. See Ulloa v. U.S. Postal Serv., EEOC Petition No.
04A30025 (Aug. 3, 2004) (citing Allen v. Dep’t of the Air Force, EEOC Petition No.
04940006 (May 31, 1996)); Perez v. U.S. Postal Serv.

, EEOC Petition No, 04A40041 (Mar.
3, 2005).
The Commission realizes that precise measurement cannot always be used to remedy the
wrong inflicted and that the computation of back pay awards inherently involves some
speculation. Harms v. U.S. Postal Serv., EEOC Petition No. 04960030 (Sept. 18, 1997).
Nonetheless, uncertainties involved in a back pay determination should be resolved against the
0120130152

5
Agency, which has already been found to have committed the acts of discrimination. Id.; see
Kloockv. U.S. Postal Serv.

, EEOC Petition No. 04A40012 (June 16, 2004).
Upon review, the Commission finds that the record is inadequately developed for us to make a
determination on whether the Agency complied with the EEOC AJ’s order regarding back pay.
Specifically, we note that the only documentation provided by the Agency concerning back pay
included a one page undated “Offline Pay Audit-Settlement” which appeared to contain
calculations for the pay periods ending July 31, 2010 – January 1, 2011, and a three-page
“Detailed Report-Back Pay Interest Computation” which appeared to contain back pay
adjustments from August 6, 2010, through January 1, 2012. The Agency does not clearly
explain the different calculations set forth on these two documents or the relationship between
the two documents. In addition, it is unclear whether the Agency’s back pay calculations
included holiday pay, weekend or night time differential, or retention pay Complainant claims
she is due. Moreover, the Agency has not produced adequate evidence indicating the total
back pay amount provided to Complainant. Thus, we find that on remand, the Agency should
clearly document its back pay calculations, including interest, to indicate how the calculations
were determined and to provide proof of payment made to Complainant.

Moreover, we are unable to determine from the record whether Complainant is entitled to
holiday pay for half of the 15 available federal holidays during the relevant time period and all
weekends during the relevant time frame. Thus, on remand the Agency should provide a copy
of documentation establishing Complainant’s work schedule and the days and hours she
worked for the year preceding her July 21, 2010 termination from the Agency.

With regard to Complainant’s contention that she was entitled to receive a GS-9 step increase
prior to the termination at issue, we find such a claim exceeds the scope of the present
complaint and is not part of the ordered remedy.

Next, we address Complainant’s contention that she was not returned to her prior schedule of
12-hour night shifts from 7:30 p.m. until the following morning at 8:00 a.m. and every
weekend from Friday until Monday and one eight-hour shift during one of the two weeks of
each pay period. The Commission's regulations require that, where an employee has been
discriminated against, the agency shall offer the employee the position that she would have
occupied absent the discrimination or, if justified by the circumstances, a substantially
equivalent position. 29 C.F.R. § 1614.501(b)(1)(i). A substantially equivalent position is one
that is similar in duties, responsibilities, and location. See Patterson v. Dep’t. of Agriculture,
EEOC Request No. 05940079 (October 21, 1994). The burden to prove substantial
equivalency rests with the agency. Shaw v. Dep’t. of the Air Force, EEOC Request No.
05930370. Furthermore, the measure of substantial equivalence should be based on the
position that was the subject of the original complaint as it originally existed. See Hafiz v.
Dep’t. of Defense, EEOC Petition No. 049600021 (July 11, 1997). Thus, despite the
Agency’s contention that Complainant never requested to work twelve-hour shifts or additional
weekends, we find that if she was working such a schedule prior to her discriminatory
removal, she should be returned to the same schedule upon her reinstatement. Upon review of
0120130152

6
the record, we are unable to determine whether the Agency placed Complainant in a
substantially equivalent position upon reinstating her to the Agency. The Agency is ordered to
provide documentation showing the position and schedule Complainant was placed in upon her
reinstatement, including how long she was working in the assigned schedule. If Complainant’s
schedule was changed at any time after her reinstatement, then the Agency should indicate
when the change was made and the reason for the schedule change.

The AJ ordered the Agency to provide Complainant with all of the other benefits to which she
was entitled as a result of her unlawful removal. The Commission construes “benefits”
broadly to include, in part, annual leave, sick leave, health insurance, and retirement
contributions. Vereb v. Dep’t Justice

, Petition No. 04980008 (February 26, 1999).
We note Complainant contends that the Agency failed to obtain her retroactive health
insurance. The Agency supplied a copy of a document entitled “Employee’s Statement
Relative to Back Pay” in which Complainant indicated that she wanted to have her health
insurance reinstated during the back pay period and stating that she consented to the Agency
deducting for each missed pay period. Upon remand of this matter, Complainant shall be
provided the opportunity to provide documentation from her healthcare provider verifying that
she does not have coverage from her healthcare provider for the reinstatement period.

The Agency supplied an “Offline Pay Audit-Settlement” with a notation of “Lump Sum
Leave” in which it listed “PPE 07/31/10 165.50 Hours 5527.50 < To be deducted from
backpay.” The Agency does not provide an explanation for this notation nor provide evidence
of whether Complainant’s annual and sick leave were restored. We find that Complainant is
entitled to the amounts of annual leave and sick leave she would have accrued had she not been
removed from the Agency on July 21, 2010, through December 19, 2011. Therefore, we
order the Agency to restore to Complainant annual and sick leave, retroactively from July 21,
2010, through December 19, 2011, if it has not already done so, and to provide evidence
indicating that these hours were received by Complainant.

CONCLUSION
Accordingly, the Agency’s final decision finding that it was in compliance with its final order
is VACATED and the matter is REMANDED to the Agency for further action in accordance
with the Order herein.

ORDER
Within 60 days of the date this decision becomes final, the Agency shall take the following
actions:

(1) The Agency shall recalculate the back pay and interest owed to Complainant in
accordance with 29 C.F.R. § 1614.501. The Agency shall provide Complainant with a
detailed statement clarifying how her back pay award was reached. The statement shall
0120130152

7
consist of a clear and concise, “plain language” statement of the methods of
calculations used for the instant matter and actual calculations applying said formulas
and methods. If there is still a dispute regarding the exact amount of back pay and/or
benefits, the Agency shall issue a check to Complainant for the undisputed amount.
(2) 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.
Complainant may petition for enforcement or clarification of the amount in dispute.
The petition for clarification or enforcement must be filed with the Compliance Officer,
at the address referenced in the statement entitled “Implementation of the Commission’s
Decision.”
(3) The Agency shall provide a copy of documentation establishing Complainant’s work
schedule and the days and hours she worked for the year preceding her July 21, 2010
termination from the Agency.
(4) The Agency shall provide documentation showing the position and schedule
Complainant was placed in upon her reinstatement to the Agency on December 19,
2011, including how long she was working in the assigned schedule. If Complainant’s
schedule was changed at any time after her reinstatement, the Agency should indicate
when the change was made and the reason for the schedule change.
(5) Complainant shall be provided the opportunity by the Agency to provide documentation
from her healthcare provider verifying that she does not have coverage from her
healthcare provider from her termination through reinstatement.
(6) The Agency shall provide documentation showing that Complainant was credited with
annual leave and sick leave, retroactive to July 21, 2010, through December 19, 2011.
(7) The Agency is directed to submit a report of compliance, as provided in the section
below entitled “Implementation of the Commission’s Decision.” The report shall
include supporting documentation of the Agency’s calculation of back pay and other
benefits due Complainant, including evidence that the corrective action has been
implemented.

IMPLEMENTATION OF THE COMMISSION’S DECISION
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
(K0610)
0120130152

8
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.
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
0120130152

9
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

(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

Date
February 11, 2015