0420150002
02-27-2015
Petitioner v. Robert McDonald, Secretary, Department of Veterans Affairs, Agency.
Petitioner
v.
Robert McDonald,
Secretary,
Department of Veterans Affairs,
Agency.
Petition No. 0420150002
Appeal No. 0720120033
Agency No. 200I-0544-2009-103064
DECISION ON A PETITION FOR ENFORCEMENT
On November 3, 2014, the Equal Employment Opportunity Commission (EEOC or Commission) docketed a petition for enforcement to examine the enforcement of an Order set forth in Appeal No. 0720120033 (March 7, 2013). The Commission accepts this petition for enforcement pursuant to 29 C.F.R. � 1614.503. For the reasons that Follow, the Petition is GRANTED.
BACKGROUND
At the time of events giving rise to the complaint at issue, Petitioner worked as a Social Worker at the Agency's Columbia, South Carolina facility. Petitioner filed a complaint in which she alleged that, in April 2009, the Agency discriminated against her on the bases of race (African-American), sex (female), age (55), and in reprisal for prior protected EEO activity when:
1. On April 29, 2009, Petitioner was not selected for the position of Chief of Social Work, in the William Jennings Bryan Dorn Veterans Affairs Medical Center; and
2. Petitioner was harassed when since July 2008, Petitioner was accused of causing problems, being rude to others, and forcing the previous Chief of Social Work to retire.
AJ's Decision
After a hearing before an EEOC Administrative Judge (AJ), the AJ found that Petitioner failed to show that she was subjected to harassment or race, sex, or age discrimination. However, the AJ found that the Agency retaliated against Petitioner when it did not select her for the position of Chief of Social Work. The AJ ordered the Agency to place Petitioner in the subject position or a similar one; pay Petitioner back pay and other benefits; provide EEO training for the responsible management officials; post a notice of the discrimination finding; and pay Petitioner $75,000 in non-pecuniary compensatory damages. The Agency issued a final order that adopted the AJ's findings on discrimination. However, the Agency rejected and appealed the amount of non-pecuniary compensatory damages awarded to Petitioner.
Appellate Decision
In Appeal No. 0720120033, the Commission found that the AJ's award of $75,000 was excessive and reduced the award to $25,000. The Commission also ordered the Agency to place Petitioner in the position of Chief of Social Work or a substantially equivalent position; pay to Petitioner back pay and benefits with interest from the date of the appointment of the selectee; provide 16 hours of EEO training to responsible management officials; consider taking disciplinary action against responsible management officials; and post a notice of the discrimination finding. The matter was assigned to a Compliance Officer and docketed as Compliance No. 0620130401 on March 14, 2013.1
Petition for Enforcement
Petitioner petitions for enforcement of our decision in Appeal No. 0720120033. Petitioner contends that the Agency placed her in the position of Chief of Patient and Community Care Service, pursuant to Appeal No. 0120100558. However, Petitioner maintains that the Agency has not paid her the proper amount of back pay because the Agency's back pay calculations do not include within-grade increases. Petitioner maintains that she is entitled to $27,003.15 in back pay, plus interest. Petitioner also maintains that she disagrees with the Agency's decision not to discipline the responsible management officials in this case.
Discipline
This petition for enforcement only concerns our order for the Agency to pay to Petitioner back pay and to consider taking disciplinary action against responsible management officials in this case. Consequently, we will restrict our review herein to those matters. The Agency submitted letters dated May 16, 2014, and May 20, 2014, that reflect that the Agency did not take disciplinary action against the responsible management officials. The letters note that one management official transferred to the Department of Defense on May 20, 2014. The letters also state that the Agency determined that the Chief of Staff was the management official who actually engaged in retaliation in this case, not the other management officials. The Agency provided documentation showing that the Chief of Staff retired from the Agency effective January 2, 2013.
We note that the Commission ordered the Agency to consider taking disciplinary action, which is not the same as ordering disciplinary action. The Agency has shown that it has considered taking disciplinary action against the management officials involved in this case, but that these individuals were no longer employed by the Agency. Consequently, we find that the Agency complied with this aspect of our order.
Back Pay
The Commission ordered the Agency to pay Petitioner back pay and benefits with interest from the date of the appointment of the selectee. The purpose of the back pay award is to restore to Petitioner the income she would have otherwise earned but for the discrimination. See Albemarle Paper Co. v. Moody, 442 U.S. 405, 418-19 (1975); Davis v. U.S. Postal Serv., EEOC Petition No. 04900010 (November 29, 1990). Therefore, in order to make Petitioner whole, Petitioner is entitled to any within-grade-increases she would have received in the position at issue from the date of the appointment of the selectee. The Agency submitted documentation reflecting Petitioner's pay history for various pay periods. However, this documentation is not self-explanatory. Instead, it is a computer-generated printout of internal payroll codes, jargon, and numbers. This documentation does not reveal how Petitioner's back pay was calculated.
CONCLUSION
In the absence of any statement from the Agency addressing the errors alleged by Petitioner, we cannot determine from the record if the Agency has complied with our order to pay Petitioner the correct amount of back pay. Therefore, the Petition is GRANTED. We REMAND this matter to the Agency to address and resolve the alleged errors cited by Petitioner; to issue a new determination on the correct back pay amount; to issue a detailed explanation of how that amount was calculated, including a response to Petitioner's specific questions raised in this petition; and to issue an award of additional back pay and interest, if appropriate. See Goldberg v. Dep't of State, Petition No. 0420100006 (Sept. 23, 2011).
ORDER
The Agency is ORDERED to take the following remedial actions, to the extent that it has not already done so:
1. Within sixty (60) calendar days of the date of this decision, the Agency shall recalculate the back pay and interest owed to Petitioner in accordance with 29 C.F.R. � 1614.501. The Agency shall provide Petitioner with a detailed statement clarifying how Petitioner's back pay award was reached. The statement shall 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 Petitioner for the undisputed amount within thirty (30) days of the date the Agency determines the amount it believes to be due.
2. Petitioner 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. If there is a dispute regarding the exact amount of back pay and/or benefits, the Agency shall issue a check to the Petitioner for the undisputed amount within sixty (60) calendar days of the date the Agency determines the amount it believes to be due. Petitioner 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 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 back pay and other benefits due Petitioner, including evidence that the corrective action has been implemented.
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 20013. The Agency's report must contain supporting documentation, and the Agency must send a copy of all submissions to the Petitioner. If the Agency does not comply with the Commission's order, the Petitioner may petition the Commission for enforcement of the order. 29 C.F.R. � 1614.503(a). The Petitioner 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 Petitioner 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 Petitioner 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.
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.
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
February 27, 2015
Date
1 We note that, in an appellate decision dated May 11, 2012, Petitioner also prevailed on a previous EEO complaint in which she alleged that, in February 2007, she was subjected to discrimination based on race when she was not selected for the position of Supervisory Social Worker, GS-13. EEOC Appeal No. 0120100558, req. for recon. denied EEOC Request No. 0520120469 (October 24, 2012). In order to remedy the discrimination, the Commission ordered, in relevant part, the Agency to offer Petitioner the position of GS-13 Supervisory Social Worker or as substantially equivalent position at the Carolina Medical Center in Columbia retroactive to the date of her non-selection on or about November 9, 2006. The Commission also ordered the Agency to pay to Petitioner back pay and benefits due since November 9, 2006.
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0420150002
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013