0120080906_to_0120080021
03-20-2008
Kathleen K. Barksdale, et al.,1 Complainants, v. Dr. James B. Peake, Secretary, Department of Veterans Affairs, Agency.
Kathleen K. Barksdale, et al.,1
Complainants,
v.
Dr. James B. Peake,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal Nos. 0120080906 to 0120080921
Agency Nos. 2004-0652-2004103368, 103378, 103275, 103400, 103197, 103366,
103429, 103420, 103269, 103231, 103261, 103430, 103318, 103319, 103232,
& 1031962
Hearing Nos. 120-2005-00430X to 00434X, & 00436X to 00446X
DECISION
Complainants, by and through their attorney, filed timely appeals3 with
the Equal Employment Opportunity Commission (EEOC or Commission) from
a consolidated final agency decision (FAD) received by their attorney
on November 19, 2007, finding that the agency was in compliance with
its prior final action order of February 28, 2007. See 29 C.F.R. �
1614.402; 29 C.F.R. � 1614.504(b); and 29 C.F.R. � 1614.405.
In a decision dated January 24, 2007, an EEOC Administrative Judge (AJ)4
found that the agency violated the Equal Pay Act of 1963, as amended, 29
U.S.C. � 206(d) et seq. when from the Spring of 2005 to April 27, 2006,
it did not pay complainants, Nurse Practitioners, under a specialty pay
schedule. The agency implemented the specialty pay schedule on April 27,
2006, in the period after complainants requested a hearing.
The AJ's decision ordered the agency, in relevant part, to:
1. retroactively implement the specialty pay schedule for Nurse
Practitioners effective April 27, 2005,
2. award complainants back pay, with interest, for the difference between
the salary they received under the pay scale for all registered nurses
and the pay they should have received under the specialty pay schedule
for Nurse Practitioners, retroactive to April 27, 2005, as well as any
other benefits, including, but not limited to appropriate retroactive
retirement contributions and benefits (such as retroactive Thrift
Savings Plan deposits) to which they would have been entitled but for
the discrimination, and
3. award complainants liquidated damages totaling an amount equal to
back pay and benefits, with interest.
In a final order dated February 28, 2007, the agency accepted the
AJ's decision "in its entirety" and ordered the Department to "fully
implement it." The final order, in relevant part, slightly changed the
wording of the AJ's order to indicate that complainants were entitled
to full, make whole relief, and that the time period used to compute
the back pay would start April 27, 2005, and extend to April 27, 2006,
the date specialty pay was implemented.
The agency did not appeal the AJ's decision. To the extent that the
agency's final order can be read to limit the remedies in the AJ's
decision, the AJ's decision prevails. This is because the final order
explicitly fully implemented the AJ's decision and the agency did not
appeal it to the Commission. Accordingly, the AJ's decision became the
agency's final order. 29 C.F.R. � 1614.110.
The agency implemented the final order by paying back pay, retroactive
to on or about April 27, 2005, with interest to complainants, and
liquidated damages. For 13 of them, interest on back pay payments was
made through May 18, 2007, for the remaining 3 through June 1, 2007.
For the same 13 complainants, back pay computation sheets indicate back
pay was paid through the two week period ending April 28, 2007, and for
the remaining 3 through January 21, 2006, January 21, 2006, and September
30, 2006. For the payments that stopped in 2006, we presume these Nurse
Practitioners ceased working for the affected facility then.
In June 2007, the agency sent letters to all the complainants attaching
reports of gross back pay, interest due, and liquidated damages already
paid. The letters advised that the agency's final order provided for
the payment of liquidated damages from April 27, 2005 to April 27, 2006,
but liquidated damages were paid beginning April 25, 2005, through pay
period nine in fiscal year 2007. The letters advised complainants that
they may be contacted by the agency regarding overpayments and required
repayments.
Thereafter, in September and November 2007, the agency demanded repayments
of liquidated damages as follows:
* Barksdale $2,379.41
* Larcombe-Bradley $1,101.86
* Knox $1,885.80
* Howard $2050.16
* Gillespie-Satterwhite $2229.06
* Fortin $2,172.46
* Forte $1969.67
* Elridge $917.67
* Woogen-Fisher $2,278.91
* Via $2069.21
* Wyche $2008.14
* Wells $2,148.55
* Stewart $2,324.23
* Turner No requested repayment in record, none
claimed on appeal
* Russell No requested repayment in record, none
claimed on appeal
* Carter $2,324.74
Because of threats of interest and fees if repayment was not made,
all those for whom repayment was demanded did so, as requested.
Three complainants were charged minimal interest and/or administrative
fees of less than $10, apparently because of delayed payments, with one
not yet paying the interest/fees. The two complainants for whom there
are no demand letters in the record stopped receiving back pay after
the two week period ending January 21, 2006.
In response to demand letters, complainants' attorney notified an agency
EEO Director pursuant to 29 C.F.R. � 1614.504(a) that the agency's
demand letters violated its final order. Complainants argued that any
pay adjustments arising out of the AJ decision's order should be matched
with liquidated damages.
The agency responded with its FAD. In denying the request to rescind the
demand letters, the FAD explained that the agency's prior final order
was to pay back pay with interest for the period of April 27, 2005 to
April 27, 2006, but liquidated damages were inadvertently paid from April
27, 2005 through pay period nine of 2007, ending May 12, 2007. The FAD
explained that any liquidated damages should not extend beyond April 27,
2006, the cut-off date for back pay in its final order and AJ's decision.
On appeal, the parties reiterate their positions. Complainants write,
through their attorney, that they received their liquidated damages in
May 2007. They write that the agency does not dispute that it properly
made pay adjustments (resulting in back pay) for most of the complainants
to May 2007. They argue that in compliance with the AJ's order, they
are entitled to liquidated damages equal to their pay adjustments
(a reference to back pay). They do not argue that the agency failed
to comply with the final order in other ways, such as the calculation
of back pay. In reply to complainants' appeals, the agency supports
its FAD. It elaborates that it only owes liquidated damages equal to
back pay for the period that it violated the Equal Pay Act, April 27,
2005, through April 27, 2006.
The AJ's decision ordered, in relevant part, that the agency pay back
pay for the difference between the salary they received under the pay
scale for all registered nurses and the pay they should have received
under the specialty pay schedule for Nurse Practitioners, retroactive
to April 27, 2005. The purpose of this was to bring the agency into
compliance with the Equal Pay Act for the entire back pay period.
While the agency does not explain the exact nature of the back pay
payments it made beyond April 27, 2006, it does not argue that these back
pay payments were not required by the order, or made in addition to what
was ordered. The AJ's decision ordered that the agency award liquidated
damages totaling the equal amount of back pay and benefits, with interest.
We find compliance with this requires the agency to do what was ordered,
i.e., pay liquidated damages totaling all the back pay and benefits,
with interest, not only a portion thereof.
As complainants prevailed on appeal, their attorney is entitled to
attorney fees and costs.
ORDER (C0900)
The agency is ordered to take the following remedial action:
Rescind the demand letters to complainants to repay the agency liquidated
damages, and reimburse any liquidated damages the complainants repaid the
agency, plus any interest and fees they paid thereon, as applicable.5
Waive any interest and fees charged to complainants in connection with
the repayments.6
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 supporting documentation verifying
that the corrective action has been implemented.7
ATTORNEY'S FEES (H0900)
If complainant has been represented by an attorney (as defined by
29 C.F.R. � 1614.501(e)(1)(iii)), he/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.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)
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 19848,
Washington, D.C. 20036. 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 (M0701)
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), 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 19848,
Washington, D.C. 20036. 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 (S0900)
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 (Z1199)
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 that the Court
appoint an attorney to represent you and that the Court 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 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
March 20, 2008
__________________
Date
1 The joined complainants and their associated appeal numbers
are: Kathleen K. Barksdale, 0120080906; Marie A. Larcombe-Bradley,
0120080907; Joan Knox, 0120080908; Ramona Y. Howard, 0120080909; Lynn
F. Gillespie-Satterwhite, 0120080910; Theresa M. Fortin, 0120080911;
Marcy S. Forte, 0120080912; Estena F. Eldridge, 0120080913; Marcela
M. Woogen-Fisher, 0120080914; Patricia S. Via, 0120080915; Phyllis
R. Wyche, 0120080916; Jacqueline B. Wells, 0120080917; Melinda Stewart,
0120080918; Harriette A. Turner, 0120080919; Brenda N. Russell,
0120080920; and Karen H. Carter, 0120080921.
2 The appeal and agency numbers are listed in the same order as the
complainants' names appear in footnote 1. The hearing numbers are listed
in chronological numerical order.
3 While separate notices of appeal were filed, the appeal was consolidated
in nature, i.e., captions containing all complainants with consolidated
statements and argument.
4 The AJ issued an earlier decision which merged into the January 24,
2007 decision.
5 This order assumes the liquidated damages in the overpayment demand
letters matched back pay and benefits, with interest owed and paid to
complainants. To the extent liquidated damages was larger than the
above figure, they are not owed.
6 In equity, we are not ordering the agency to pay additional interest on
the liquidated damages complainants repaid. First, we note that for the
most part, the agency did not charge complainants fees or interest for
holding liquidated damages it believed it overpaid in May 2007, and the
charges for those that apparently delayed repayment was very minimal.
Next, the agency's arguments show it believed in good faith, albeit
incorrectly, that it overpaid liquidated damages.
7 If no demand letters nor repayment was sought or made regarding
complainants Turner and Russell, compliance simply requires a statement
verifying this.
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0120080906
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
8
0120080906 through 0120080921