Lamont C.,1 Complainant,v.Robert McDonald, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

Jan 13, 2017

0120141419 (E.E.O.C. Jan. 13, 2017)

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

Lamont C.,1
Complainant,

v.

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

Appeal No. 0120141419

Agency No. 200P-0691-2011103038

DECISION

On February 24, 2014, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a),
from the Agency’s January 28, 2014, final decision concerning his 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 AFFIRMS the Agency’s final decision finding
discrimination and ordering relief.

Complainant worked as a Social Science Technician at the Agency’s Medical Center in Los
Angeles, California. On August 9, 2011, Complainant filed EEO Complaint No. 200P-0691-
2011103038, in which he alleged that a Senior Manager had discriminated against him on the
bases of disability (unspecified mental condition) and in reprisal for prior protected EEO
activity when:

1. On February 15, 2011, his duties were reassigned and his caseload was removed;
and

2. On March 5, 2011, his access code to enter the job site/building had been taken
away.

1 This case has been randomly assigned a pseudonym which will replace Complainant’s name
when the decision is published to non-parties and the Commission’s website.
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The Agency dismissed the complaint for untimely counselor contact on Claim (A) and failure
to state a claim with respect to Claim (B). In EEOC Appeal No. 0120120063 (March 9,
2012), however, we reversed the Agency’s dismissal decision and remanded the matter for
further processing.

In accordance with our order, the Agency investigated the complaint and on January 28, 2014,
issued a decision in which it found liability and ordered relief (hereinafter cited as “FAD-
Merits”). The Agency found that Complainant failed to establish a prima facie case of
disability discrimination. FAD-Merits, p. 9. The Agency also found that Complainant had
established a prima facie case of reprisal which the Agency failed to rebut. FAD-Merits, pp.
9-13. Relief ordered by the Agency included the following elements:

1. Equitable relief – reinstatement of duties, immediate access to alarm code,
restoration of leave and other benefits resulting from Agency’s actions.

2. Conduct a supplemental investigation on the question of compensatory damages
entitlement.

3. Any documented costs associated with the prosecution of the complaint.

4. Other corrective action – consider taking action with respect to the individual
responsible for the discrimination, including counseling, reassignment, or
disciplinary action; and 8 hours of mandatory training on retaliation, as well as to
post notice of the violation.

FAD-Merits, pp. 13-17. In an appeal filed February 24, 2014, followed by a supporting brief
submitted on March 25th, Complainant contests the Agency’s finding that he failed to prove
discrimination on the basis of disability. He submitted three additional statements in support of
his appeal in June, in which he claimed that the Agency was not in compliance with its order
for relief set forth in the FAD-Merits, with the exception of the restoration of his duties.

During that same time frame, the Agency conducted a supplemental investigation on the issue
of compensatory damages and on July 31, 2014, issued a final decision in which it found itself
liable to Complainant for compensatory damages in the amount of $25,115.84.

The allegation of a particular discriminatory basis such as reprisal or disability is a legal
conclusion. Chacon v. U.S. Postal Service, EEOC Appeal No. 01920558 (Nov. 4, 1992).
Because the Agency had already determined liability to Complainant for reprisal on the facts
pertaining to his two claims, a finding of disability discrimination on that same set of facts will
not entitle him to any additional relief beyond what the Agency had already ordered in its
decision on the merits dated January 28, 2014, or its decision on compensatory damages dated
July 31, 2014. Moreover, Complainant has not challenged the sufficiency of the damages
award. We therefore AFFIRM the Agency’s two final decisions on Complaint No. 200P-
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0691-2011103038, and will enter an order directing the Agency to provide Complainant with
the relief to which those decisions entitle him and to document its efforts in that regard.

ORDER (D1016)

To the extent that it has not already done so, the Agency is directed to comply with the orders
set forth in its final decisions dated January 28, 2014 and July 31, 2014.

Unless it has already done so, the Agency shall determine the appropriate amount of any
benefits due Complainant, pursuant to 29 C.F.R. § 1614.501, no later than sixty (60) calendar
days after the date this decision was issued. The Complainant shall cooperate in the Agency's
efforts to compute the amount of benefits due, and shall provide all relevant information
requested by the Agency. If there is a dispute regarding the exact amount of benefits, the
Agency shall issue a check to the Complainant for the undisputed amount within sixty (60)
calendar days of the date the Agency determines the amount it believes to be due. The
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."

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 of the Agency's calculation of benefits due Complainant, including evidence
that the corrective action has been implemented.

POSTING ORDER (G0914)

Unless it has already done so, the Agency is ordered to post at its Medical Center in Los
Angeles, California copies of the attached notice. Copies of the notice, after being signed by
the Agency's duly authorized representative, shall be posted both in hard copy and electronic
format by the Agency within 30 calendar days of the date this decision 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 10 calendar days of the
expiration of the posting period.

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
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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 (M0416)

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 Chap. 9 § VII.B (Aug. 5, 2015). All requests and arguments
must be submitted to the Director, Office of Federal Operations, Equal Employment
Opportunity Commission. The requests may be submitted via regular mail to P.O. Box 77960,
Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. In
the absence of a legible postmark, the request to reconsider shall be deemed timely filed if it is
received by mail within five days of the expiration of the applicable filing period. See 29
C.F.R. § 1614.604. The 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
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Commission will consider requests for reconsideration filed after the deadline only in very
limited circumstances. See 29 C.F.R. § 1614.604(c).

COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (R0610)

This is a decision requiring the Agency to continue its administrative processing of your
complaint. However, if you wish to file a civil action, you have the right to file such action in
an appropriate United States District Court within ninety (90) calendar days from the date that
you receive this decision. In the alternative, you may file a civil action after one hundred and
eighty (180) calendar days of the date you filed your complaint with the Agency, or filed your
appeal with the Commission. If you file a civil action, you must name as the defendant in the
complaint the person who is the official Agency head or department head, identifying that
person by his or her full name and official title. Failure to do so may result in the dismissal of
your case in court. “Agency” or “department” means the national organization, and not the
local office, facility or department in which you work. Filing a civil action will terminate the
administrative processing of your complaint.

RIGHT TO REQUEST COUNSEL (Z0815)

If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may
request permission from the court to proceed with the civil action without paying these fees or
costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may
request the court to appoint an attorney for you. You must submit the requests for waiver of
court costs or appointment of an attorney directly to the court, not the Commission. The court
has the sole discretion to grant or deny these types of requests. Such requests do not alter the
time limits for filing a civil action (please read the paragraph titled Complainant’s Right to File
a Civil Action for the specific time limits).

FOR THE COMMISSION:

______________________________ Carlton M. Hadden’s signature
Carlton M. Hadden, Director
Office of Federal Operations

January 13, 2017
Date