0720070063
12-15-2009
Bradley J. Gervais, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Bradley J. Gervais,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0720070063
Hearing No. 440-2007-00026X
Agency No. 200J-0537-2006101036
DECISION
In its June 21, 2007 final order, the agency rejected the decision of the
Administrative Judge (AJ), dated May 24, 2007, finding that the agency
discriminated against complainant in violation of Title VII of the Civil
Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq.,
and accepted the decision of the AJ finding that the agency discriminated
against complainant in violation of the Equal Pay Act of 1963, as amended,
29 U.S.C. � 206(d) et seq. On June 21, 2007, the agency filed a timely
appeal with the Commission in regard to its rejection, in part, of the
AJ's decision and remedy. The Commission accepts the agency's appeal
pursuant to 29 C.F.R. � 1614.405(a). For the reasons that follow, the
Commission reverses the agency's final order, in part, and affirms the
decision of the AJ.
Since 1988, complainant worked as a Kinesiotherapist at the agency's
Adam Benjamin, Jr. Outpatient Clinic (ABJ) in Crown Point, Indiana.
At the time of his transfer from the main facility, the agency required
him to accept a downgrade from GS-11 to GS-9, which he agreed to do
for reasons of personal convenience; in 1995, he was promoted to GS-10.
On October 4, 2004, a female Kinesiotherapist (FK), GS-11, transferred to
ABJ, performing the same work as complainant, and retained her grade of
GS-11 upon transfer; she became permanent at ABJ in the Spring of 2005.
Complainant sought a promotion informally from his superiors and, although
many promises were made, the agency took no formal action. On February
24, 2006, complainant filed an EEO complaint claiming discrimination in
pay on the basis of sex (male). After the investigation, complainant
requested a hearing. An EEOC Administrative Judge (AJ) conducted
a hearing on March 20, 2007, and issued a decision on May 24, 2007,
finding that the agency discriminated against complainant based on sex
under the EPA and Title VII, and noted that the agency "refused to place
him at equal pay or grade" to FK and that it "affirmatively acted to
block any attempt" to correct the situation. AJ, p. 1. Specifically,
the AJ found that the agency did not present evidence that the difference
in pay was due to "other factors other than sex," nor did it offer a
legitimate, nondiscriminatory reason for paying complainant less than FK.
The AJ found that FK was treated more favorably in violation of the EPA
and Title VII and ordered relief for complainant.1
The agency agreed to implement the AJ's finding under the EPA but rejected
the AJ's finding that it had violated Title VII. In its brief in support,
the agency argued that a claim of disparate treatment (Title VII) was
not made by the complainant nor accepted or investigated by the agency.2
In addition, the agency contended the complainant's claim was untimely,
citing Ledbetter v. Goodyear, 550 U.S. 618 (2007).3
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by
an AJ will be upheld if supported by substantial evidence in the record.
Substantial evidence is defined as "such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion." Universal
Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951)
(citation omitted). A finding regarding whether or not discriminatory
intent existed is a factual finding. See Pullman-Standard Co. v. Swint,
456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a
de novo standard of review, whether or not a hearing was held.
After a review of the record in its entirety, including consideration of
all statements submitted on appeal, even if not specifically addressed
herein, it is the decision of the Commission to affirm the AJ's finding
that the agency discriminated against complainant based on sex in
violation of the EPA and Title VII. See 29 C.F.R. � 1620.27. We find
that the AJ accurately stated the facts of this matter and correctly
applied the pertinent principles of law and that her decision is supported
by substantial evidence in the record. Further, the Commission finds
that the agency's failure to promote complainant, despite its numerous
promises to do so, was a willful violation of the EPA. See Telford
v. Department of the Army, EEOC Appeal No. 01973892 (November 2, 1999),
RTR aff'd., EEOC Request 05A00233 (June 11, 2002).
Remedy
Complainant is entitled to back pay under the EPA and Title VII,
but not both; he is entitled to the "highest benefit" which either
statute provides. 29 C.F.R. � 1620.27(b). Under Title VII, back pay
is usually awarded from the date of the violation, while under the EPA,
a complainant is generally entitled to back pay from two years previous
to the date of the complaint. In this case, moreover, because we have
found that the agency's actions constituted a willful violation of the
EPA, complainant is entitled to back pay from three years prior to the
date he filed his complaint, or February 24, 2003, and an equal amount
in liquidated damages.4 Finally, complainant is also entitled to all
other remedies under the EPA and Title VII.
CONCLUSION
Accordingly, the agency's decision is affirmed, in part, and reversed,
in part. The agency is directed to comply with the Order below.
ORDER (D0900)
The agency is ordered to take the following remedial action:
A. Within thirty (30) days of the date this decision becomes final,
the agency shall promote complainant to the position of Kinesiotherapist,
GS-11, with seniority one day greater than FK;
B. Within sixty (60) calendar days of the date this decision
becomes final, the agency is directed to award complainant back pay,
with interest, for the difference between the salary he received and the
GS-11 salary he should have received, retroactive to February 24, 2003
(three years prior to the date on which the complaint in this matter was
filed) and continuing to his promotion to GS-11, pursuant to Paragraph A.
The agency shall determine the appropriate amount of back pay, interest
and other benefits due complainant, pursuant to 29 C.F.R. 1614.501.5
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."
C. Within sixty days of the date this decision becomes final the
agency shall award complainant liquidated damages totaling an amount
equal to the back pay calculated in Paragraph B, with interest.
D. Within thirty (30) days of the date this decision becomes final,
the agency shall send complainant a notice of his right to submit
objective evidence in support of a claim for compensatory damages.6
Complainant shall submit his claim within ninety (90) days of the receipt
of the agency's notice. Within thirty (30) calendar days of the date
the agency receives complainant's claim for compensatory damages, it
shall a final decision in regard to complainant's claim pursuant to 29
C.F.R. � 1614.110(b) and notify complainant of his right of appeal.
E. Within ninety (90) days of the date this decision becomes final,
the agency shall provide training to relevant managerial officials of the
ABJ facility and its superior facilities7 referred to in the AJ's decision
and by complainant in regard to their obligations and responsibilities
under Title VII and EPA and to eliminate sex discrimination in the
Federal workplace. The Commission does not consider that training is
a disciplinary action.
F. The agency shall consider appropriate disciplinary action against
the relevant agency officials and report its decision. 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. The Commission
does not consider training to be a disciplinary action.
G. 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 calculations of back pay and other benefits due complainant,
including evidence that the corrective action has been implemented.
In addition, the agency's report shall include a statement from the
manager of the ABJ Clinic, along with a picture(s), certifying that an
EEO information poster is available to employees.
POSTING ORDER (G0900)
The agency is ordered to post at its Jesse Brown VAMC facilities copies
of the attached notice. Copies of the notice, after being signed by the
agency's duly authorized representative, shall be posted by the agency
within thirty (30) calendar days of the date this decision becomes final,
and shall remain posted for sixty (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.
The original signed notice is to be submitted to the Compliance Officer
at the address cited in the paragraph entitled "Implementation of the
Commission's Decision," within ten (10) calendar days of the expiration
of the posting period.
ATTORNEY'S FEES (H0900)
If complainant has been represented by an attorney (as defined by
29 C.F.R. � 1614.501(e)(1)(iii), he/she is entitled to an award of
reasonable attorney's fees incurred in the processing of the complaint.
29 C.F.R. ' 1614.501(e). The award of attorney's fees shall be paid
by the agency. The attorney shall submit a verified statement of fees
to the agency -- not to the Equal Employment Opportunity Commission,
Office of Federal Operations -- within thirty (30) calendar days of this
decision becoming final. The agency shall then process the claim for
attorney's fees in accordance with 29 C.F.R. � 1614.501.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K1208)
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 (M1208)
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), 9-18 (November 9, 1999). All requests
and arguments must be submitted to the Director, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 77960,
Washington, DC 20013. 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 (T0408)
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 (Z1008)
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
December 15, 2009
Date
1 The AJ cited to the Commission's regulation that states that any
violation of the EPA is also a violation of Title VII. 29 C.F.R. �
1620.27; also see 29 C.F.R. � 1604.8.
2 The Commission's regulations afford AJs wide latitude over the conduct
of hearings. See 29 C.F.R. � 1614.109(e); Equal Employment Opportunity
Management Directive for 29 C.F.R. Part 1614 (EEO- MD-110) at 7-8 to 7-14
(revised November 9, 1999).
3 Specifically, the agency stated that it filed the appeal herein over
"concern for the Agency's ability to defend future disparate treatment
cases involving timeliness issues." We note, however, that in its April
12, 2006 Notice of Acceptance, the agency specifically discussed the
question of whether complainant's contact with the EEO Counselor had been
timely, deemed it so, and accepted the complaint for further processing.
Accordingly, we find that the agency has waived the question of timeliness
in this case. Contrary to the agency's assertion, a determination of
timeliness in this case does not affect the agency's ability to defend
future cases involving timeliness issues.
4 While it appears that back pay relief under the EPA will be the "highest
benefit," the agency must calculate back pay under both statutes to
determine which one is more favorable to complainant.
5 The agency is reminded that benefits include, but are not limited
to, retroactive contributions to complainant's TSP account and accrued
earnings as well as his retirement benefits during the back pay period,
as appropriate.
6 Guidance on claims for compensatory damages is available in the
Commission's Enforcement Guidance: Compensatory and Punitive Damages
Available under � 102 of the Civil Rights Act of 1991, No. N 915-002
(July 14, 1992); see Carle v. Department of the Navy, EEOC Appeal
No. 01922369 (January 5, 1993). Additional information is available on
the Commission's website: www.eeoc.gov.
7 According to complainant, a merger of Chicago area VAMCs occurred in
2002-2003, and the combined facilities became the Jesse Brown VAMC.
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0720070063
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 77960
Washington, D.C. 20013
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