Nevada R.,1 Petitioner,v.Robert Wilkie, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

Nov 3, 2020

2020002434 (E.E.O.C. Nov. 3, 2020)

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

Nevada R.,1
Petitioner,

v.

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

Petition No. 2020002434

Appeal No. 0120140904

Agency No. 200405902010102960

DECISION ON A PETITION FOR ENFORCEMENT

On February 24, 2020, the Equal Employment Opportunity Commission (EEOC or Commission)
docketed a petition for enforcement to examine the enforcement of an Order set forth in EEOC
Appeal No. 0120140904 (January 18, 2017). The Commission accepts this petition for
enforcement pursuant to 29 C.F.R. § 1614.503. Petitioner alleged that the Agency failed to fully
comply with the Commission’s order.

BACKGROUND

On August 19, 2013, an EEOC Administrative Judge (AJ) found that the Agency discriminated
against Petitioner on the basis of race (African-American) when she was not selected for a Lead
Supervisory Social Worker position. The AJ ordered relief, including to promote Petitioner to a
Lead Supervisory Social Worker position or a substantially equivalent position and to pay her
back pay retroactive to May 23, 2010. On September 24, 2013, the Agency issued a final order
fully implementing the AJ’s decision.

Petitioner filed an appeal to the Commission, alleging that the Agency had not placed her in a
Lead Supervisory Social Worker position or provided her with corresponding back pay.

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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In Appeal No. 0120140904, the Commission found that the Agency had not established that the
Senior Supervisor Social Worker for Mental Health Programs position offered to Petitioner was
substantially equivalent to the Lead Supervisory Social Worker position. The Commission also
found that, while the Agency submitted documentation that it had awarded Petitioner back pay,
there was no explanation of how the Agency calculated the amount. The Commission found that
it was impossible to tell if Petitioner was provided back pay with interest for the appropriate
amount of time.

The Commission ordered the Agency to offer Petitioner a Lead Supervisory Social Worker
position or a substantially equivalent position and to provide back pay, interest, and other
benefits from May 23, 2010, through the date Petitioner started the new position or declined the
offer. The Order also specified that the Agency had to provide Petitioner with a detailed
statement explaining how the back pay award was calculated, ordering the Agency to use clear
and concise “plain language” to explain the assumptions made, the calculations used, and the
actual calculations applying the formulas and methods.

The matter was assigned to a Compliance Officer and docketed as Compliance No. 0620170229
on January 19, 2017. On July 10, 2017, the Compliance Officer issued the Agency a letter,
stating that the Commission had no record that the Agency had implemented the Commission’s
decision. On July 18, 2017, Petitioner submitted the petition for enforcement at issue. In the
petition, Petitioner states that the Agency offered her a suitable position on July 10, 2017.
However, Petitioner contends that the Agency failed to pay her the appropriate amount of back
pay, interest, and other benefits and to provide her with a detailed statement explaining how it
calculated the back pay award.

The Compliance Officer sent additional letters to the Agency on February 11, 2019, and
December 10, 2019, stating that the Commission had no record that the Agency had completely
implemented the Commission’s decision. On December 18, 2019, the Agency submitted an
interim compliance report, which showed that the Agency offered a Supervisory Social Worker
position to Petitioner and that she accepted the offer on July 17, 2017. The interim compliance
report contained spreadsheets related to the back pay award, but there was no detailed, plain
language explanation of the formulas and methods used by the Agency to calculate the amount.

On January 20, 2020, Petitioner submitted a renewed petition for enforcement, noting that the
Agency still had not complied with the Commission’s orders. The Commission docketed the
petition for enforcement on February 24, 2020. In response to the docketing of the petition for
enforcement, the Agency contends that the only outstanding compliance matter was the payment
of interest on the back pay award. According to the Agency, although it had provided the
appropriate paperwork to the Defense Finance and Accounting Service (DFAS), DFAS did not
provide Petitioner interest on her back pay award.

On May 21, 2020, the Agency submitted a final compliance report. The final compliance report
contains a screenshot of Petitioner’s Leave and Earnings Statement that shows that Petitioner
was paid $2,834.35 in interest in her paycheck for the pay period ending March 14, 2020.
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Beginning at page 36, the final compliance reports also contains Back Pay Computation
Summary Reports from DFAS that show how the Agency calculated adjusted gross back pay
plus interest.

ANALYSIS AND FINDINGS

EEOC Regulation 29 C.F.R. § 1614.503(a) provides that an aggrieved person may petition for
enforcement of an order issued by the Commission under its appellate jurisdiction. In this case,
Petitioner alleges that the Agency is not in compliance with the Commission's order in EEOC
Appeal No. 0120140904. Specifically, her renewed petition for enforcement contends that, as of
January 2020, the Agency had not paid her interest on her back pay award or explained how it
calculated the amount of back pay and interest owed to Petitioner.

While Petitioner did not provide her own calculations of the amount of back pay and interest, she
seeks to know how the Agency arrived at its amount, as directed in our prior order. After a
review of the record, we find that the Agency’s final compliance report included the DFAS Back
Pay Computation Summary Reports. These documents show the formulas, methods, and
assumptions that were used to calculate the amount of back pay and the amount of interest owed
to Petitioner. There is also supporting documentation showing that the Agency paid the amount
owed to Petitioner. We therefore find that the Agency has complied with our order regarding the
calculation of back pay and interest.

CONCLUSION

Accordingly, the Commission finds that the Agency has complied with the order in Appeal No.
0120140904 and DENIES Petitioner's petition for enforcement.

PETITIONER’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.

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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 Petitioner’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

November 3, 2020
Date