[Redacted], Debbi V., 1 Complainant,v.Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

Feb 23, 2023

Appeal No. 2021000890 (E.E.O.C. Feb. 23, 2023)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Debbi V.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency. Request No. 2022004674 Appeal No. 2021000890 Hearing No. 430-2017-00111X Agency No. 2004-0652-2016100886 DECISION ON REQUEST FOR RECONSIDERATION Complainant timely requested that the Equal Employment Opportunity Commission (EEOC or Commission) reconsider its decision in EEOC Appeal No. 2021000890 (July 25, 2022). EEOC Regulations provide that the Commission may, in its discretion, grant a request to reconsider any previous Commission decision issued pursuant to 29 C.F.R. § 1614.405(a), where the requesting party demonstrates 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. See 29 C.F.R. § 1614.405(c). During the relevant time, Complainant worked as a Physician at the McGuire VA Medical Center in Richmond, Virginia. Complainant filed a formal complaint, claiming discrimination based on disability. Complainant alleged that the Agency failed to provide her with the equipment necessary to reasonably accommodate her disability, which affected her ability to do her job and that Complainant received a rating of unsatisfactory on her Focused Professional Practice Evaluation (FPPE), 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. 2022004674 2 which resulted in the suspension of her clinical privileges. Complainant subsequently amended her complaint to include discrimination based on sex, disability, and in reprisal for prior protected activity when she was removed from her employment with the Agency. After an investigation, Complainant requested a hearing. The assigned EEOC Administrative Judge (AJ) held a hearing and issued a decision finding that, although Complainant failed to prove her claim of reprisal, she had proven that the Agency had discriminated against her based on disability when it failed to provide her reasonable accommodations, resulting in the unsatisfactory FPPE, the suspension of her clinical privileges, and her eventual termination.2 Based on these findings and their determination that the Agency had not acted in good faith when it failed to reasonably accommodate Complainant, the AJ awarded Complainant $1,937.86 in pecuniary, compensatory damages, and $62,750.00 in nonpecuniary, compensatory damages. The AJ ordered the Agency to pay Complainant $449,419.80 in attorney’s fees, $2,526.00 in expert witness fees, and $2,646.50 in costs. The AJ also ordered other forms of relief, including reinstatement to Complainant’s position. The Agency subsequently issued a final order fully implementing the AJ’s finding that the Agency subjected Complainant to discrimination based on disability, as well as the AJ’s ordered relief. The Agency also included additional orders that: committed to Complainant in writing that it would refrain from such discriminatory practices and consider disciplining Complainant’s former immediate supervisor; offer to reinstate Complainant to her former position or a substantially equivalent position, giving her sixty (60) calendar days to accept or decline the Agency’s offer; and specified deadlines for those elements of relief for which the AJ had not ordered a specific deadline. Complainant appealed, challenging the AJ’s decision to deny certain pecuniary damages, including reimbursement for moving expenses, furniture storage, and job search expenses following her termination, and additional attorney’s fees. Complainant also argued the Agency improperly altered the AJ’s order that Complainant reinstated, ordering instead that she be offered reinstatement and that this change should be rejected. In EEOC Appeal No. 2021000890, the Commission found that Complainant’s losses based on her move from Virginia to Ohio, where she did not have a prospective job, including moving expenses and furniture storage costs, were speculative in nature and not compensable. The Commission also found Complainant’s request for future pecuniary, compensatory damages was too remote and speculative for recovery. Regarding attorney’s fees, the Commission found that the requested attorney’s fee for 1.2 hours (hourly billing rate of $665) for drafting a letter relating to mediation and privileges was sufficiently detailed and related to Complainant’s EEO matter and, therefore, recoverable. Thus, the Commission increased Complainant’s award of attorney’s fees by $798.00. 2 Complainant withdrew her claim of sex-based discrimination. 2022004674 3 The Commission found that the requested attorney’s fee for 1.5 hours for the research status of the summary suspension letter and email relating to the same was not related to the EEO process but was related to internal Agency decisions regarding Complainant’s clinical privileges and, therefore, was not recoverable. The Commission also denied Complainant’s request for $31,587.50 in attorney’s fees for work done after Complainant filed her EEO complaint but prior to filing her motion to amend the complaint to include the termination claim, except for 1 hour for work done in preparing the motion to amend. Thus, the Commission further increased the award of attorney’s fees by $665.00. In so doing, the Commission noted that the remaining fees were related to an internal Agency process regarding Complainant’s termination and, therefore, outside of the EEO process. In total, the Commission found Complainant should receive a total award of $450,882.80 in attorney’s fees. The Commission found there was no practical difference between the Agency being ordered to reinstate Complainant or to offer to reinstate Complainant. In the instant request for reconsideration, we have carefully reviewed Complainant’s arguments and determine that the matters either were raised or could have been raised below. We note that during the original appeal from the Agency’s final order, Complainant presented extensive arguments, many of which have been replicated in the instant request. We emphasize that a request for reconsideration is not a second appeal to the Commission. Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), Chap. 9 § VI.A (Aug. 5, 2015); see, e.g., Lopez v. Dep't of Agric., EEOC Request No. 0520070736 (Aug. 20, 2007). Rather, a reconsideration request is an opportunity to demonstrate that the appellate decision involved a clearly erroneous interpretation of material fact or law, or will have a substantial impact on the policies, practices, or operations of the Agency. Complainant has not done so here. After reviewing the previous decision and the entire record, the Commission finds that the request fails to meet the criteria of 29 C.F.R. § 1614.405(c), and it is the decision of the Commission to deny the request. The decision in EEOC Appeal No. 2021000890 remains the Commission's decision. There is no further right of administrative appeal on the decision of the Commission on this request. ORDER To the extent it has not already done so, the Agency shall take the following actions: 1. Within 60 days from the date this decision is issued, the Agency shall reinstate Complainant to her former position as a Staff Physician in the Richmond VAMC or a substantially equivalent position. Should Complainant decline the position, then the date she declines shall be the end date for any backpay due to Complainant. 2. Within 60 days from the date this decision is issued, the Agency shall award Complainant backpay, with interest, for the period beginning on December 3, 2022004674 4 2017, through the date the Agency reinstates Complainant to the position she held at the Richmond VAMC or a substantially equivalent position. The backpay shall be computed in the manner prescribed by 5 C.F.R. § 550.805. The Agency shall also award and restore all other fringe benefits (i.e., sick and annual leave, health and life insurance) that Complainant would have earned during the backpay period. If Complainant opts to have her health benefits coverage restored pursuant to 5 U.S.C. § 8908(a), then the Agency shall ensure the payments Complainant made for health benefits that were available to her under the Consolidated Omnibus Budget Reconciliation Act (COBRA) are refunded to her. The Complainant shall cooperate in the Agency’s efforts to compute the amount of backpay and benefits due, and shall provide all relevant information requested by the Agency. If there is a dispute regarding the exact amount of backpay and/or benefits, the Agency shall issue a check to Complainant for the undisputed amount within 60 days of the date the Agency determines the amount it believes to be due. 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." 3. The Agency shall reimburse Complainant for any tax penalties she incurs as a result of the one-time, lump sum remuneration of her backpay. Complainant is also entitled to any fees incurred to obtain such calculation, such as an accountant’s or tax preparer’s fees. Within 90 days of the end of the tax year in which the Agency completes its payment of the backpay due to Complainant, Complainant shall provide the Agency with her calculation of the additional taxes and fees she incurs as a result of the one-time lump sum backpay award. Within 90 days of receiving such information from Complainant, the Agency shall compensate her for the established adverse tax consequences of her lump sum backpay award. 4. Within 60 days from the date this decision is issued, the Agency shall commit to Complainant in writing the following: It will cease from engaging in the unlawful employment practice found in this case, namely, discrimination based on disability; it will not engage in similar unlawful employment practices; it will provide her with a workplace that effectively accommodates her disability, free from hostility, offensive conduct or abuse; and no reprisal will be taken against her for filing and pursuing this or any other complaint under federal EEO law. 5. Within 60 days from the date this decision is issued, the Agency shall void the report concerning Complainant that it sent to the National Practitioner Data Bank on or about December 13, 2018, and shall also remove from Complainant’s employment records the proposal to remove Complainant from her employment with the Agency issued on November 3, 2017; the decision to terminate her employment, issued November 28, 2017; any documents indicating that her clinical privileges were suspended or revoked; and all FPPE, Ongoing 2022004674 5 Professional Practice Evaluations (OPPE), and Proficiency Reports that indicate Complainant’s performance at any time from June 29, 2014, through December 3, 2017, was less than satisfactory. 6. Within 60 days from the date this decision is issued, the Agency shall pay Complainant $1,937.86 in pecuniary compensatory damages and $62,750.00 in nonpecuniary compensatory damages. 7. Within 60 days from the date this decision is issued, the Agency shall pay Complainant $450,882.80 in attorney’s fees, $2,526.00 in expert witness fees, and $2,646.50 in costs. 8. Within 90 days from the date this decision is issued, the Agency shall provide at least eight hours of EEO training to Supervisor. The training shall place special emphasis on disability discrimination. The Agency shall also provide four hours of EEO training with a focus on disability discrimination to former Richmond VAMC Director, Richmond VAMC Chief of Staff, and any other individuals who were members of the Medical Practice Standards Board (MPSB) at any of the following times: (1) when the MPSB recommended suspension of Complainant’s clinical privileges that went into effect on November 18, 2015; (2) when the MPSB recommended the suspension of Complainant’s clinical privileges that went into effect on September 13, 2017; and (3) when the MPSB recommended the removal of Complainant from her employment with the Agency. If these officials are no longer employed, the Agency shall provide documentation of their departure dates. 9. Within 60 days from the date the decision is issued, the Agency shall consider disciplining Supervisor. The Commission does not consider training to be disciplinary action. The Agency shall report its decision to the Compliance Officer. If the Agency decides to take disciplinary action, it shall identify the action taken. If the Agency decides not to take disciplinary action, it shall set forth the reason(s) for its decision not to impose discipline. POSTING ORDER (G0617) The Agency is ordered to post at its Richmond VAMC facility (also known as Hunter Holmes McGuire Hospital) 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 was issued, 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. 2022004674 6 The original signed notice is to be submitted to the Compliance Officer as directed in the paragraph entitled "Implementation of the Commission's Decision," within 10 calendar days of the expiration of the posting period. The report must be in digital format, and must be submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). 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. 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 C.F.R. § 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. 2022004674 7 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 February 23, 2023 Date