Hedy B.,1 Petitioner,v.Kevin K. McAleenan, Acting Secretary, Department of Homeland Security (Federal Emergency Management Agency), Agency.

Equal Employment Opportunity Commission

Sep 26, 2019

0420180021 (E.E.O.C. Sep. 26, 2019)

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

Hedy B.,1
Petitioner,

v.

Kevin K. McAleenan,
Acting Secretary,
Department of Homeland Security
(Federal Emergency Management Agency),
Agency.

Petition No. 0420180021

Request No. 0520110295

Appeal No. 0720090011

EEOC Hearing No. 510-2006-00218X

Agency No. HS 05-FEMA-004142

DECISION ON A PETITION FOR CLARIFICATION

On May 29, 2018, the Equal Employment Opportunity Commission (EEOC or Commission)
docketed the instant petition for clarification to examine the enforcement of Orders set forth in
EEOC Request No. 0520110295 (May 12, 2011) and Petition No. 0420130004 (July 17, 2013).
Petitioner’s filing follows an Opinion and Order from the U.S. District Court for the District of
Columbia (hereinafter District Court), staying its proceeding to allow Petitioner to “seek a
determination from the EEOC about the period of time for which back pay is due.” The
Commission accepts this petition for clarification pursuant to 29 C.F.R. § 1614.503.

BACKGROUND

Since 1996, Petitioner worked as a Disaster Assistance Employee (DAE) for the Agency and was
often deployed in management positions for catastrophic events. During the relevant time, she
was serving as Mitigation Branch Chief, in Region IV, located in Orlando, Florida.

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.
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She was “released” from the position in May 2005, following an administrative investigation.
Complainant was told that she could return to another available managerial position after
completing a training course and working with a mentor. Thereafter, the Agency offered
Petitioner a position as the Hazard Management Community Education Outreach Group
Supervisor of Region 6, in Baton Rouge, Louisiana. However, the Agency later rescinded the
offer.

In October 2005, Petitioner filed a formal EEO complaint alleging the Agency’s actions were
based on race (African American), sex (female), and/or retaliation for engaging in prior protected
activity. Following a hearing, an EEOC Administrative Judge (AJ) issued a decision finding that
the Agency’s actions were discriminatory. Petitioner was awarded remedies which included
placement in a comparable managerial position, backpay, compensatory damages and attorney’s
fees. Within the body of her September 26, 2008 decision, the AJ provided extensive, detailed
instructions regarding the calculation of backpay. Specifically, the AJ stated, in relevant part:

(1) Had it not been for the discrimination, the Complainant would have continued to
work in Orlando, Florida, in her Branch Chief position until she was offered the
position in Region 6. Thus, she is entitled to back pay for the duration of time
that the Branch Chief position in Orlando was filled by anybody20 up to the point
of time that she was offered the position in Region 6 referenced below in
paragraph (2). Her back pay shall be calculated at her base salary (at $80,000 per
year for any regular21 hours worked) plus overtime hours paid at the overtime rate
of pay minus any interim earnings.22 The amount of any overtime hours worked
by her replacement(s) (up to the point of time that she was offered the position in
Region 6) shall be determined and this amount of hours shall then be paid to
Complainant in overtime pay.

(2) Had it not been for the required discriminatory mentoring requirement,
Complainant would have been assigned to the management position in Region 6,
which had previously been offered to her, but then retracted because she had not
completed her mentoring assignment. The evidence showed that [Person H] was
placed in the position. Thus, Complainant is entitled to back pay for the duration
of the time that this position was filled.23

(3) The evidence is too speculative to allow for back pay after any elimination of the
position referenced immediately above in paragraph (2). . . . The record was void of
what [the Agency’s] needs were after the offer for work in Region 6 was
withdrawn. Therefore, Complainant has not established that she is entitled to any
back pay other than the back pay previously described in paragraphs (1) and (2).

____________________________________________

[FOOTNOTES ARE DIRECTLY QUOTED FROM AJ’S DECISION:]
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20 The Agency shall furnish relevant information to Complainant so that
verification may be made of the backpay calculation. This requirement applies to
this position (and overtime hours worked) as well as the position referenced in
paragraph number (2) below.

21 “Regular” hours refer to hours paid at Complainant’s base rate of pay, as
opposed [to] hours compensated at the rate for overtime pay.

22 Complainant shall furnish relevant W-2s and/or 1099s so verification may be
made of any interim earnings. This requirement is applicable for all years for
which she will receive back pay.

23 If [Person H] was subsequently replaced by another individual this shall not cut
off the back pay. Complainant is entitled to back pay for the duration of time that
anyone served in this position up to the date of this decision. See also footnotes
20 and 22.

Further, the AJ noted that, “notwithstanding paragraphs (1) and (2),” Petitioner was not entitled
to back pay for the nine weeks she was caring for her mother and was unavailable to work. To
best reflect the three rotations, each two to three weeks in length, that Petitioner testified she
cared for her mother, the AJ instructed that back pay calculations should treat Petitioner as
unavailable: the first three weeks in November 2005; the first three weeks of January 2006; and
the first three weeks in March 2006. Finally, the AJ found that Petitioner was not entitled to any
per diem monies or bonuses.

The Agency appealed the AJ’s decision. Upon review, the Commission affirmed the AJ’s
determination that the Agency’s explanations for its actions were a pretext for unlawful
discrimination and/or retaliation. See EEOC Appeal No. 0720090011 (Jan. 19, 2011). As for the
relief granted, the Commission found no basis to disturb the AJ’s remedial orders. See id. The
Agency was ordered to take numerous remedial actions, including the following:

(3) Within sixty (60) calendar days of the date this decision becomes final, the
Agency shall pay Complainant backpay.

(4) Within sixty (60) calendar days of the date this decision becomes final, the
Agency shall place Complainant in a managerial position comparable to the one
she held at the time of the discrimination at issue, outside the supervision of S1
and named Agency official.

See id.

In its request for reconsideration of the Commission decision, the Agency sought clarification
regarding the relief ordered. The Agency argued that because Petitioner’s job as a DAE was
intermittent in nature, it would be difficult to calculate back pay without speculating.
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The Agency also asserted that the end-date for back pay was unclear because the position
previously held by Petitioner was later converted into a Disaster Temporary Employee in 2005.2
See EEOC Request No. 0520110295 (May 12, 2011). The Agency found that such a full-time
position would have required Petitioner to compete for the position, making her selection
uncertain. In denying the request, the Commission observed that, “the AJ’s decision provided
specific direction on how to calculate back pay and determine when it ceased.” See id. Because
the original appellate decision found no reason to alter the AJ’s findings and orders, the
Commission stated that compliance with the backpay order “requires the Agency to follow
directions in the AJ’s decision for calculating back pay, as well as complying with 29 C.F.R. §
1614.501. See id. The Agency was further advised that, “[t]o the extent this does not resolve
some questions, the Agency must comply with Commission case law in resolving how to
calculate back pay.” See id.

The matter was assigned to an EEOC Compliance Officer and docketed as Compliance No.
0620110547. However, when the parties continued to have unresolved issues regarding backpay
and Petitioner’s placement in a managerial position, Petitioner filed a petition for enforcement
which was docketed in December 2012. See Petition No. 0420130054 (July 17, 2013).

According to the Agency, on May 26, 2012, it paid Petitioner $410,000. The Agency explained
that the $410,000 amount covered May 27, 2005 through September 26, 2008 (the date of the
AJ’s decision) and was calculated by using Petitioner’s base salary and adding thirty-eight hours
of overtime per week. See Petition No. 0420130054 (July 17, 2013). The Agency asserted, that,
in fact, it had erroneously overpaid Petitioner by approximately $78,000.00. See id. Petitioner
challenged the total, arguing that the time period should extend through May 12, 2011 (the date
of the Commission’s decision) and should include interest. See id.

Alternatively, the Agency asserted that if any additional back pay was owed, the back pay should
end on the date in July 2011 when Petitioner rejected its offer to deploy her. See id. As for
placement in a managerial position, Petitioner acknowledged that the Agency tried to deploy her
but she declined when she was not sufficiently assured her harassers would not be present. See
id.

The Commission concluded that the Agency fulfilled its obligations under provision (4) when it
offered to deploy Petitioner to Tennessee on July 11, 2011. See id. Further, the record reflected
that Petitioner rejected the deployment, thereby establishing an end-date for the Agency’s
backpay liability. The Commission expressly stated that Petitioner was entitled to back pay from
May 27, 2005 until July 11, 2011. See id. However, the Commission found that the record
lacked any evidence of the Agency’s purported payments or its calculations.

2 The Agency further noted that in 2006, DTE positions became “Cadre of Response Employees”
(CORE). According to the Agency, DAE positions were short-term (weeks or months), while
DTE positions were usually a one-year assignment, and CORE positions are typically a two-year
assignment.
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The matter was remanded to the Agency for a supplemental investigation to be completed within
thirty days. Specifically, the Agency was ordered to take the following action:

Conduct a supplemental investigation with regard to the precise manner in which
it calculated the backpay it estimated was owed to Complainant. The Agency
shall also modify such calculations to cover pay lost through July 11, 2011 and
provide additional payments as necessary. Supporting documentation of such
calculations, as well as evidence of prior payments, will be submitted to the
Commission.

Three months later, Petitioner filed a civil action with the U.S. District Court for the District of
Columbia (Civil Action No. 13-1582-RDM) seeking compliance with the Commission’s July 17,
2013 decision. Following numerous motions for summary judgment and counterclaims, the
District Court determined that “the only claim before [us] is an Administrative Procedure Act, 5
U.S.C. § 706(1), claim seeking to compel [the Agency] to comply with the EEOC’s order, and
that claim has engendered a genuine dispute of material fact.” In its March 1, 2018
“Memorandum Opinion and Order” (hereinafter “Memo Opinion”), the District Court stayed the
action to allow Petitioner to return to the Commission, noting that the Commission is “better
suited to resolve any factual dispute relating to the claims that it has already adjudicated.”

On March 21, 2018, Petitioner submitted the petition for enforcement at issue.

ANALYSIS AND FINDINGS

At this juncture in the protracted proceedings in this matter, our analysis is focused on the
mandate of the District Court, as noted above. Specifically, the District Court has stayed its
processing of the case in order for the Commission to determine the “periods of time for which
back pay is due.” It reasoned that, as the adjudicatory agency, the Commission was well placed
to resolve disputes of material fact. The District Court specifically identified the matters to be
resolved as follows: (1) whether someone, at least briefly, filled Petitioner’s position after her
discharge from her Orlando Branch Chief position; and (2) whether the Region 6 managerial
position offered to, and then denied, Petitioner continued to exist within the meaning of the
EEOC’s backpay order after June 2006. We shall consider each question in turn.

Orlando Branch Chief Position

Petitioner was found to have been discriminatorily released from her position on May 27, 2005.
As set forth in the EEOC AJ’s September 26, 2008 decision, the Agency was ordered to provide
back pay “for the duration of time that the Branch Chief position in Orlando was filled by
anybody” (emphasis added) up to the point she was offered the position in Region 6.

According to the District Court’s Memo Opinion, while the matter was pending before the Court,
“FEMA returned to the drawing board and conducted a supplemental investigation regarding
what, if any back pay remained due”.
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In its “resulting report,” the Agency concluded that the Orlando Branch Chief position was not
filled by anyone up to the point Petitioner was offered the Region 6 position, and therefore she
was not entitled to any backpay for that time period. The District Court went on to note
Petitioner’s assertion that her job duties were performed by another employee (hereinafter
“Employee-R”). Acknowledging that Employee-R held another job title in a nearby office,
Petitioner argued that he nonetheless acted as her “replacement.” The District Court observed
that Petitioner provided Employee-R’s “employee assignment history,” an organizational chart,
and emails to support her contentions. The Memo Opinion remarked that the Agency “has not
submitted any other evidence that [Employee-R’s] responsibilities . . . differed from those that
[Petitioner] performed before her release.” While refraining from making a factual
determination, the District Court did note that even if Employee-R was used to “bring closure”
and “assist with the transition” of Petitioner’s projects, “that premise is not at odds with
[Petitioner’s] conclusion that – at least for a few months – [Employee-R] performed her job.”
Moreover, the District Court restated its prior conclusion that “to the extent that FEMA’s
position turns exclusively on the job title – regardless of the overlap in the actual substance of
the job – the District Court is unpersuaded that the EEOC’s decision can be given such a crabbed
construction.”

When the parties were last before the Commission, the record was considered insufficient and
the matter was remanded to the Agency for a supplemental investigation. See EEOC Petition No.
0420130004 (July 17, 2013). Even though the District Court has an improved record on this
issue, including the Agency’s more recent “report,” we acknowledge that the record still seems
to be lacking. The District Court itself appears to be in agreement on this matter. Specifically,
in sending the matter to the Commission, the District Court expressly noted, “[we are] therefore
left with a factual dispute that cannot be resolved on the existing record . . . . The question, then
is how best to bring this matter to a ‘just, speedy, and inexpensive’ conclusion. One possibility is
that the District Court remand the action to [the Agency] for further development of the record.
Given the history of this case, however, it is far from clear that such an approach would lead to a
prompt resolution.” The Commission’s history with this matter exhibits a similar unwillingness
by the Agency to provide the necessary documentation to support its assertions and permit the
Commission to ultimately determine whether compliance with our order has been achieved.
Nonetheless, in an effort to avoid further delay in providing Complainant with the remedies she
was initially awarded over a decade ago, the determination requested of the Commission by the
District Court will be based on the instant record.

We find the District Court’s Memo Opinion, and its observations regarding Employee-R, to be
helpful in assessing whether the work by Employee-R was, in essence, filling the Orlando
Branch Chief position. Complainant has provided evidence, including email communications
and assignments, to support her belief that Employee-R was performing her prior duties.
Contrastingly, as noted in the Memo Opinion, the Agency failed to submit evidence to refute her
assertions. Therefore, we construe the work performed by Employee-R following Complainant’s
removal to be the duties of the Orlando Branch Chief position for the purposes of the backpay
award.

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In sum, we conclude that Complainant is entitled to back pay for the discriminatory loss of the
Orlando Branch Chief position from May 27, 2005 (the date she was removed from the position),
until the date she would have assumed the Region 6 managerial position.
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Region 6 Managerial Position

As previously noted, the EEOC AJ also found that, but for the Agency’s discriminatory
mentoring requirement, Petitioner would have been assigned to the Region 6 managerial
position. Consequently, the AJ’s decision noted that Petitioner was “entitled to back pay for the
duration of time that this position was filled . . . .” Although the Agency challenged the award,
both in EEOC Appeal No. 0720090011 and in EEOC Request No. 0520110295, the AJ’s
remedies were upheld.

While before the District Court, following completion of its “report,” the Agency argued that the
back pay period should end in June 2006, when the DAE position Petitioner should have
received was replaced with a CORE position.3 According to the Memo Opinion, Petitioner did
not dispute that the type of position was changed, but argued that such change in title was
irrelevant because an Agency employee was performing the job duties of the Region 6
managerial position until at least July 2011. The District Court again found itself faced with a
genuine dispute of material fact: whether the Region 6 managerial position that Petitioner was
offered, and then denied, continued to exist4 after June 2006.5

Before concluding that the factual dispute should be returned to the Commission, the District
Court noted that it was, “unconvinced that change from DAE to CORE position was itself
sufficient to end [Petitioner’s] entitled to back pay”. Further, the District Court observed that the
Commission’s decision ordering the backpay “seems to contemplate such a shift.” The District
Court turned to the Commission to resolve “whether it is possible to trace a continuous line of
tenure in the position, which might bear different titles over time and which might be held in a
‘temporary office’ or in a ‘long term recovery office’ but which carries ‘significantly the same’
duties . . . .”

We agree with the District Court’s observations. Moreover, we must reiterate that the Agency
previously raised such arguments with the Commission. The Agency’s repeated, and
unsuccessful, efforts to reduce the back pay related to the Region 6 position are illustrated in the
background of this case. The precise argument most recently presented by the Agency to the
District Court was already proffered to the Commission more than eight years ago. See EEOC
Request No. 0520110295 (May 12, 2011). A review of the Agency’s motion for reconsideration
reveals a detailed description of the purported distinctions between a DAE, DTE, and CORE.
The Commission declined to grant the Agency’s request and alter the AJ’s order. Further, as
discerned by the District Court, in crafting detailed instructions for the determination of backpay,
the AJ expressly addressed the possibility of subsequent replacements and changes in title. The

3 According to the Agency, Complainant’s total back pay loss, with interest, is only $47,640.84.

4 Within the meaning of the EEOC order.

5 When the Agency replaced the DAE position discriminatorily denied to Complainant with a
CORE position.
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Agency was ordered to pay back pay “for the duration of time that this position was filled”, with
a footnote stating that if the individual shown to have been placed in the position (hereinafter
“Employee-H”) was later replaced by another individual this would not end the back pay period.
Similarly, the AJ stated that “in the event that the title of this position changed due to a
temporary office changing into a long-term recovery office, but the duties remained significantly
the same” then the position would continue to be one for which Petitioner was entitled to back
pay.

Rather than comply with our prior order, to simply provide evidence of its payments and
calculations, the Agency simply rehashes previous arguments that have already been considered
and rejected. More than a decade after the EEOC AJ found that Petitioner was entitled to back
pay as a result of the Agency’s discrimination, and after the Agency exhausted the administrative
process, the Agency continues to dispute the award of back pay. Not only is the Agency
foreclosed from doing so with the Commission, but to date, it has never provided documentation
of its ever-changing calculations.6

In accordance with our previous decisions, the Agency is ordered to pay Petitioner back pay for
the Region 6 managerial position for the time that it was filled by anyone performing
significantly the same duties as done by Employee-H, irrespective of later changes in title, office,
or categorization (i.e. DAE to CORE). Back pay shall be paid at Petitioner’s base salary
($80,000 per year) plus overtime hours worked by Employee-H or his replacement. This total
amount (base salary + overtime pay) shall then be reduced by any interim earnings.

In sum, we conclude that the backpay period for the discriminatory loss of the Region 6
managerial position starts on the date Petitioner would have assumed to Region 6 position and
ends on July 11, 2011, the date Petitioner rejected the Agency’s offer to deploy her.

CONCLUSION

In conclusion, we now clarify that Petitioner is entitled to back pay, with interest, from the time
she was released from her Orlando Branch Chief position (May 27, 2005) through when she
would have assumed the Region 6 managerial position until the date Petitioner declined the
Agency’s offer to deploy her (July 11, 2011). The matter is REMANDED to the Agency to take
the appropriate actions as set forth in the ORDER below.

6 According to the Agency, it paid Petitioner $410,000 for backpay and interest in May 2012.
Thereafter, it asserted that recalculations revealed Petitioner was only entitled to $331,909.30.
See EEOC Petition No.0420130004 (July 17, 2013). Most recently, according to the District
Court’s Memo Opinion, the Agency would have us believe that Petitioner only suffered a loss of
$47,640.84 in backpay.

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ORDER

(1) Within thirty (30) calendar days of the date this decision is issued, to the extent it has not
already done so, the Agency shall issue Petitioner a check for back pay, with interest,
from the time Petitioner was released from her Orlando Branch Chief position (May 27,
2005) through when she would have assumed the Region 6 managerial position until the
date Petitioner declined the Agency’s offer to deploy her (July 11, 2011). All calculations
and determinations of the amount owed shall comply with the methods set forth in the
EEOC’s AJ’s September 26, 2008 decision. 7

(2) Within thirty (30) calendar days of the date this decision is issued, the Agency shall
submit a report of compliance in digital format, including all documentary evidence of its
calculations and evidence of all (prior and current) payments, as provided in the
statement below entitled “Implementation of the Commission's Decision.” The report
shall be submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. §
1614.403(g).

(3) The Agency shall also pay compensation for the adverse tax consequences of receiving
back pay as a lump sum. Petitioner has the burden of establishing the amount of increased
tax liability, if any. Once the Agency has calculated the proper amount of back pay,
Petitioner shall be given the opportunity to present the Agency with evidence regarding
the adverse tax consequences, if any, for which Petitioner shall then be compensated.

ATTORNEY'S FEES (H1016)

If Complainant has been represented by an attorney (as defined by 29 C.F.R. §
1614.501(e)(1)(iii)), he 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.

7 The overall amount of backpay owed, reflecting both the calculations for the Orlando Branch
Chief and the Region 6 managerial position, shall be reduced by the nine weeks Complainant
was unavailable to work (the first three weeks of November 2005, January 2006, and March
2006, respectively).
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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). 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.

COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (P0610)

This decision of the Commission is final, and there is no further right of administrative appeal
from the Commission's decision. 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.

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.
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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

September 26, 2019
Date