0120161549
02-02-2017
Sanjuanita A.,1 Complainant, v. Robert McDonald, Secretary, Department of Veterans Affairs (Veterans Health Administration), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Sanjuanita A.,1
Complainant,
v.
Robert McDonald,
Secretary,
Department of Veterans Affairs
(Veterans Health Administration),
Agency.
Appeal No. 0120161549
Agency No. 200H-0595-2016101131
DECISION
On March 17, 2016, Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from a final Agency decision (FAD) dated February 19, 2016, dismissing her complaint of unlawful employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Licensed Practical Nurse, GS-6 at the Agency's Veterans Affairs Medical Center (VAMC) in Lebanon, Pennsylvania.
On or about December 30, 2013, Complainant was indicted on felony and misdemeanor charges by the state of Pennsylvania. The Agency determined that since Complainant waived her right to a preliminary hearing, there was reasonable cause to believe that she committed a criminal offense for which the penalty of imprisonment may be imposed. Effective March 31, 2014, the Agency suspended Complainant indefinitely for this reason.
On April 21, 2014, Complainant filed a step 3 grievance challenging her indefinite suspension in a negotiated grievance process which permits claims of discrimination. On May 5, 2014, the Director of the Lebanon VAMC denied the grievance, and the indefinite suspension continued.
On or about March 30, 2015, all but one of the criminal charges against Complainant were withdrawn, and the remaining misdemeanor count was resolved via an Accelerated Rehabilitation Disposition (ARD) (which will purportedly result in expungement).2
After the above occurred, the Agency, effective April 19, 2015, ceased the indefinite suspension and Complainant returned to work. Effective the same day, the Agency issued a notification of personnel action that Complainant's eligibility for a within grade increase was adjusted to March 12, 2016, to reflect her time in non-pay status.
On May 13, 2015, while represented by counsel, Complainant initiated equal employment opportunity (EEO) counseling alleging, in relevant part, that she was discriminated against based on her disability when she learned on April 30, 2015, that her step increase was withheld (informal EEO case). The EEO counselor interviewed Complainant the next day, and later generated a counselor's report with a case number.
On May 27, 2015, Complainant, through counsel, requested the Agency to provide her retroactive pay with benefits, including step increase(s) from March 31, 2014 through the date of her reinstatement (April 19, 2015) - the indefinite suspension period. She contended that the Agency had the discretion to make her whole.
On June 10, 2015, Complainant withdrew in writing the above informal EEO case. She later explained that she did so because she prematurely initiated EEO counseling - at that time she had not asked the Agency to pay her back pay and other benefits.
On June 18, 2015, the Director of the Lebanon VAMC denied Complainant's request for back pay with benefits. He reasoned that the indefinite suspension was properly imposed.
On or about July 17, 2015, Complainant, represented by counsel, filed an appeal with the MSPB. On November 19, 2015, the MSPB issued an initial decision characterizing Complainant's appeal as alleging that the Agency erred in failing to give her back pay and benefits for the indefinite suspension period and refusing to expunge the indefinite suspension.
In its initial decision, the MSPB wrote that a complainant can challenge an agency's imposition of an indefinite suspension at two points - when it is initially imposed and if the agency subsequently fails to terminate the indefinite suspension after the condition subsequent occurs. It wrote that in the case of a criminal proceeding, an agency is required to reinstate the complainant within a reasonable time after her acquittal or the dismissal of all charges.
The MSPB found that it did not have jurisdiction over the original indefinite suspension because Complainant elected to challenge it through the negotiated grievance procedure. It further found that since Complainant has not asserted that the Agency failed to reinstate her in a reasonable amount of time, there appeared to be no cognizable claim on her reinstatement. The MSPB found that since it could not consider the original suspension or the reinstatement, it had no jurisdiction over the back pay and benefits claim during the indefinite suspension period. While noting that Federal Circuit case law was not "seemless," it cited such precedent for the proposition that a lawfully suspended employee has no entitlement to back pay. The MSPB dismissed Complainant's appeal for lack of jurisdiction.
On December 9, 2015, Complainant filed a formal complaint alleging that the Agency discriminated against her based on disability when on June 18, 2015, the Director of the Lebanon VAMC denied her request for retroactive back pay for the indefinite suspension period.
In dismissing the complaint the Agency reasoned that Complainant's claim for back pay with benefits and her denied step increase were dependent on the indefinite suspension, which she elected to grieve in the negotiated grievance process. 29 C.F.R. � 1614.107(a)(4). The Agency also found that Complainant previously raised the denial of her within grade increase in her prior May 13, 2015, informal EEO case, which she withdrew, and this was binding. It also cited to the findings in the MSPB's decision.
ANALYSIS AND FINDINGS
As an initial matter, we find that the Agency properly dismissed the portion of Complainant's complaint regarding the delay of her eligibility for a step increase. Complainant raised this matter in her May 13, 2015, informal EEO case, which she withdrew. Unless a withdrawal is pursuant to a settlement agreement, once a complainant has withdrawn an informal complaint, absent a showing of coercion, a complainant may not reactivate the EEO process by filing a formal complaint on the same issue. Allen v. Department of Defense, EEOC Appeal No. 01932770 (May 25, 1995).
On appeal, Complainant argues that the decision by federal agencies on whether to grant back pay and benefits retroactive for the period of an employee's indefinite suspension following the resolution of criminal charges is discretionary.
She cites Richardson v. U.S. Customs Service, 47 F.3d 415, 421 (Fed. Cir. 1995), where the Court found:
[W]hen an employee who has been suspended under the summary suspension provision is acquitted and subsequently reinstated, the agency is neither required to nor precluded from making the reinstatement with back pay retroactive to the date of the suspension. That decision is a matter for the agency, in the first instance, to make, based on all the facts and circumstances.
Complainant argues that discretion may not be exercised to further discriminatory intent. We find this argument persuasive.
While it is true that but for indefinite suspension Complainant would have continued to be paid wages with benefits, in these unique circumstances the Agency had discretion on whether to award Complainant back pay with benefits after the indefinite suspension ceased and she returned to work. Richardson.3
Accordingly, the FAD is MODIFIED.
ORDER
The Agency is ordered to process the remanded claims (back pay with benefits and interest, but not the delaying Complainant's eligibility for a step increase to March 12, 2016) in accordance with 29 C.F.R. � 1614.108. The Agency shall acknowledge to the Complainant that it has received the remanded claims within thirty (30) calendar days of the date this decision was issued. The Agency shall issue to Complainant a copy of the investigative file and also shall notify Complainant of the appropriate rights within one hundred fifty (150) calendar days of the date this decision was issued, unless the matter is otherwise resolved prior to that time. If the Complainant requests a final decision without a hearing, the Agency shall issue a final decision within sixty (60) days of receipt of Complainant's request.
A copy of the Agency's letter of acknowledgment to Complainant and a copy of the notice that transmits the investigative file and notice of rights must be sent to the Compliance Officer as referenced below.
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 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 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 (T0610)
This decision affirms the Agency's final decision/action in part, but it also requires the Agency to continue its administrative processing of a portion of your complaint. 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 on both that portion of your complaint which the Commission has affirmed and that portion of the complaint which has been remanded for continued administrative processing. 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 your appeal with the Commission, until such time as the Agency issues its final decision on your complaint. 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 (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 2, 2017
__________________
Date
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.
2 This was gleaned from an initial decision of the Merit System Protection Board (MSPB).
3 In finding Complainant had no entitlement to back pay, one case the MSPB cited was issued prior to Richardson, and the other regarded an indefinite suspension for revocation of a security clearance, a different situation than here. In any event, the terms "discretion" and "no entitlement" are not inconsistent, and an initial decision by the MSPB is not precedential.
---------------
------------------------------------------------------------
---------------
------------------------------------------------------------
2
0120161549
2
0120161549