Anastacia D.,1 Complainant,v.Peter O’Rourke, Acting Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

Oct 23, 2018

0120170097 (E.E.O.C. Oct. 23, 2018)

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

Anastacia D.,1
Complainant,

v.

Peter O’Rourke,
Acting Secretary,
Department of Veterans Affairs,
Agency.

Appeal No. 0120170097

Hearing Nos. 480-2011-00524X, 480-2012-00098X, 480-2014-00142X, 480-2014-00476X

Agency Nos. 200P-0691-2010104781/2011102689/2013102048/2014199923

DECISION

Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or
Commission), pursuant to 29 C.F.R. § 1614.403(a), in which she raises the issue of noncompliance
with the Agency’s final order dated June 20, 2016. In that order, the Agency fully implemented
the decision of an EEOC Administrative Judge finding that the Agency had violated Title VII of
the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq. and the Age
Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq.

Complainant had filed the four EEO complaints referenced above between December 2010 and
October 28, 2013. The complaints were investigated and referred to an Equal Employment
Opportunity Commission Administrative Judge (AJ), who held a hearing and issued a decision
finding in the Complainant’s favor. In its June 20, 2016 final order, the Agency ordered the
following remedies:

1. Promote Complainant to the position of Program Support Assistant (PSA), GS-06 Step
10, retroactive from November 1, 2008 to August 8, 2010.

2. Promote Complainant to the position of PSA, GS-07, Step 10, retroactive from August
8, 2010 to the present.

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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3. Award Complainant back pay less interim earnings, interest, retroactive tax-deferred
contributions to Complainant’s Thrift Savings Plan (TSP) account together with any
earnings that would have accrued during the relevant period, and all benefits and
training that she would have otherwise earned or received but for the prohibited
discrimination,

4. Pay Complainant for time marked as absent without leave from August 16, 2013
through August 26, 2013 totaling 5.5 days.

5. Restore to Complainant 519.50 hours of leave taken as a result of the discriminatory
action and/or payment for any leave that takes Complainant’s cumulative annual leave
to over 240 hours.

6. Award Complainant prejudgment interest on lost back-pay and benefits at the annual
percentage rate or rates established by the Secretary of the Treasury.

7. Commit to Complainant in writing that the Agency will cease from engaging in the
unlawful employment practice found in the case.

8. Award Complainant $75,000 in non-pecuniary compensatory damages for the harms
found to have been caused by the Agency’s discriminatory conduct.

9. Award Complainant $177,859 in attorney’s fees and $1,765.40 in costs.

10. Take whatever corrective, curative, and preventative actions and will adopt whatever
measures are necessary to ensure that violations of federal EEO law similar to those
found in this case do not recur.

11. Provide three hours of EEO training on race, color, age, and reprisal discrimination to
the individuals found to have discriminated against Complainant.

12. Consider taking appropriate disciplinary action against the individuals responsible for
the acts of discrimination in this case.

13. Post at the facility where the violation occurred notice regarding unlawful
discrimination.

In a memorandum dated August 26, 2016 and addressed to Complainant’s representative at the
time, the EEO Program Manager stated that as of the date of the memorandum, the Agency had
completed items (5), (7), (8), (9), (11), (12), and (13). The EEO Program Manager also stated that
by the following week, September 3, 2016 or thereabout, the Agency would complete items (1),
(2), (3), (4), and (6).
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In a follow-up email to Complainant and her representative dated September 9, 2016, the EEO
Program Manager stated that the Chief Financial Officer was providing assistance in completing
item (3). In her appeal, Complainant states that as of October 27, 2016, the Agency still had not
completed items (1), (2), (3), (4), (5), and (6).

The Commission’s regulations provide that final action that has not been the subject of an appeal
or civil action shall be binding on the Agency. 29 C.F.R. § 1614.504(a). If Complainant believes
that the Agency has failed to comply with the terms of a decision, she shall notify the EEO
Director, in writing, of the alleged noncompliance within 30 days of when Complainant knew or
should have known of the alleged noncompliance. Id. The Agency shall resolve the matter and
respond to the Complainant, in writing. 29 C.F.R. § 1614.504(b). If Complainant is not satisfied
with the Agency's attempt to resolve the matter, the Complainant may appeal to the Commission
for a determination as to whether the Agency has complied with its decision. Id. Complainant
may file such an appeal 35 days after he or she has served the Agency with the allegations of
noncompliance, but must file an appeal within 30 days of his or her receipt of an Agency's
determination. Id. If the Commission determines that the Agency is not in compliance with its
decision, and the noncompliance is not attributable to acts or conduct of Complainant, it may order
such compliance with the decision. 29 C.F.R. § 1614.504(c).

In this case, there is no evidence that Complainant properly notified the Agency of her allegations
of non-compliance. Consequently, Complainant’s direct appeal of non-compliance allegations
was premature. However, the Commission notified the Agency of Complainant’s appeal, which
provided the Agency with constructive notice of Complainant's non-compliance allegations.
Nevertheless, the Agency has not submitted any arguments addressing Complainant’s non-
compliance allegations.

In the interest of ensuring compliance with Commission orders and the efficient processing of
these allegations, we remand this matter to the Agency so that it can demonstrate its compliance
with the final order.

CONCLUSION

Accordingly, we REMAND this matter to the Agency so that it can take further actions consistent
with this decision and the ORDER set forth below.

ORDER (D0617)
To the extent that it has not already done so, the Agency shall take the following remedial action
within 60 calendar days of the date this decision is issued:
1. Promote Complainant to the position of Program Support Assistant (PSA), GS-06 Step
10, retroactive from November 1, 2008 to August 8, 2010.

2. Promote Complainant to the position of PSA, GS-07, Step 10, retroactive from August
8, 2010 to the present.
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3. Award Complainant back pay less interim earnings, interest, retroactive tax-deferred
contributions to Complainant’s Thrift Savings Plan (TSP) account together with any
earnings that would have accrued during the relevant period, and all benefits and
training that she would have otherwise earned or received but for the prohibited
discrimination,

4. Pay Complainant for time marked as absent without leave from August 16, 2013
through August 26, 2013 totaling 5.5 days.

5. Restore to Complainant 519.50 hours of leave taken as a result of the discriminatory
action and/or payment for any leave that takes Complainant’s cumulative annual leave
to over 240 hours.

6. Award Complainant prejudgment interest on lost back-pay and benefits at the annual
percentage rate or rates established by the Secretary of the Treasury.

The Agency shall determine the appropriate amount of back pay, with interest, leave, and other
benefits due the 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 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 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 in digital format as provided in
the statement entitled "Implementation of the Commission's Decision." The report shall be
submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Further,
the report must include supporting documentation of the Agency's calculation of back pay and
other benefits due Complainant, including evidence that the corrective action has been
implemented.
IMPLEMENTATION OF THE COMMISSION’S DECISION (K0618)
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).
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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.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
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. A party shall have
twenty (20) calendar days of receipt of another party’s timely request for reconsideration in
which to submit a brief or statement in opposition. 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. Complainant’s request 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 Agency’s request must be
submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R.
§ 1614.403(g). The request or opposition must also include proof of service on the other party.
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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 (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

October 23, 2018____
Date