Celinda L.,1 Complainant,v.Eric K. Fanning, Secretary, Department of the Army, Agency.

Equal Employment Opportunity Commission

Dec 7, 2016

0120143011 (E.E.O.C. Dec. 7, 2016)

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

Celinda L.,1
Complainant,

v.

Eric K. Fanning,
Secretary,
Department of the Army,
Agency.

Appeal No. 0120143011

Hearing No. 570-2010-00606X

Agency No. ARUSASAC09JUN02714

DECISION

Complainant filed an appeal concerning her equal employment opportunity (EEO) complaint
alleging employment discrimination in violation of Title VII of the Civil Rights Act of 1964
(Title VII), as amended, 42 U.S.C. § 2000e et seq. For the following reasons, the
Commission VACATES the Agency’s decision that it has complied with the Agency’s final
action.

BACKGROUND

On November 19, 2008, pursuant to Vacancy Announcement (VA) EUFH08109749, the
Agency advertised for a Contract Specialist, YA-1102-2, in its U.S. Military Training Mission
(USMTM), Support Group, Directorate of Contracting, in Eskan Village, Riyadh, Saudi
Arabia. The position was covered by the National Security Personnel System (NSPS).
Complainant applied for the position. Complainant’s name appeared on the Web Based
Referral List. Complainant was not selected. Selectee 1 was selected for the position,
effective January 4, 2009.

On November 18, 2008, pursuant to VA EUFH08003831, the Agency advertised for a
Management Technician, YB-0344-01/02, in its OPM-SANG, Technical Affairs Division,

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.
0120143011

2
Riyadh, Saudi Arabia. The position was covered by NSPS. Complainant applied for the
position. Complainant’s name appeared on the Web Based Referral List. Complainant was
not selected for the position. Selectee 2 was selected for the position, effective June 30, 2009.

On September 14, 2009, Complainant filed an EEO complaint alleging that the Agency
discriminated against her on the bases of race (African-American), national origin (American),
sex (female), and in reprisal for protected EEO activity when on May 31, 2009, she learned:

1. She was not selected for the position of YA-1102-02 Contract Specialist, Vacancy
Announcement EUFH08109749 at United States Army Central, United States
Military Training Mission (USMTM), Directorate of Contracting, Riyadh, Saudi
Arabia; and
2. She was not selected for the position of YB-0344-01/02 Management Technician
(Office Automation), Vacancy Announcement EUFH08003831 at the Office of the
Program Manager, Saudi Arabian National Guard Modernization Program (OPM-
SANG) Technical Affairs Division, Riyadh, Saudi Arabia.

At the conclusion of the investigation, the Agency provided Complainant with a copy of the
report of investigation and notice of her right to request a hearing before an Equal Employment
Opportunity Commission Administrative Judge (AJ). Complainant requested a hearing. On
February 22, 2011, the AJ issued an Order Entering Default Judgment against the Agency and
on June 3, 2013, issued a Decision on Liability and Relief. On January 13, 2014, the AJ
issued a Decision on Liability and Relief, Including Attorney’s Fees and Costs. As relief, the
AJ ordered the Agency to offer Complainant placement into a Contract Specialist, YA-1102-2,
position in the Agency’s USMTM, Support Group, Directorate of Contracting, in Eskan
Village, Riyadh, Saudi Arabia, or a Management Technician position, YB-0344-01/02, in its
OPM-SANG, Technical Affairs Division, Riyadh, Saudi Arabia, or to a substantially
equivalent position, retroactive to the date of the first selection. The AJ ordered the Agency to
determine the appropriate pay band/grade level for Complainant. The AJ ordered the Agency
to provide Complainant back pay, plus applicable interest and other benefits, from the effective
date of the first selection until the date she begins working for the Agency, or the date she
declines the Agency’s offer of a position, whichever occurs first. The AJ ordered the Agency
to pay Complainant $10,380.59 in past pecuniary, compensatory damages; $80,000.00 in
nonpecuniary, compensatory damages; and $53,937.60 in attorney’s fees. The AJ also ordered
the Agency to provide at least eight hours of training to management and Human Resources
personnel at both USMTS, Support Group, Directorate of Contracting in Eskan Village,
Riyadh, Saudi Arabia and OPM-SANG, Technical Affairs Division, Riyadh, Saudi Arabia.

The Agency subsequently issued a final action on February 21, 2014. The Agency fully
implemented the AJ’s decision and ordered relief.

Both positions for which Complainant was not selected are no longer existent, as they were
under the NSPS. The NSPS is no longer used by the Agency. The Agency converted the
Contract Specialist position under the NSPS to one under the General Schedule (GS) and
0120143011

3
offered Complainant a position under the GS system. On April 9, 2014, the Agency provided
Complainant with a job offer for placement into a Contract Specialist, GS-1102-09 trainee to
GS-11, with USMTM located in Riyadh, Saudi Arabia. The Agency letter offered to start
Complainant at the GS-1102-09, Step 5 level, with a base salary of $47,575.00 and eligibility
for Post Allowance (PA), Danger Pay (DP), and Sunday Premium Pay. The letter included
position descriptions for the GS-9 and GS-11 level positions indicating that the position was a
career-ladder GS-9/11 position.

Both positions for which Complainant was not selected were “local hire” positions, which
require an Iqama (work visa), from the Government of Saudi Arabia. After the Agency made
the offer to place Complainant in the Contract Specialist position, GS-1102-9 trainee to GS-11,
it learned from Complainant that she was not eligible for this position because she did not have
a valid work visa. Further, the Agency determined Complainant could not obtain the status
required by Saudi Arabian law for a local hire. The Government of Saudi Arabia had
expressly directed USMTM to refrain from hiring American employees without a valid work
visa.

On June 6, 2014, the Agency issued a revised offer letter stating that it was changing the grade
level to the GS-1102, Grade 11 level, and that the same position description identified in the
initial offer letter would still apply. The position was offered in the form of a transportation
agreement, which offered Complainant additional benefits not available to local hires, but
which had certain supplemental requirements that must be met as part of the hiring process.
The June 6, 2014 letter did not specify at which step level Complainant would start.

On June 9, 2014, Complainant accepted the position but advised the Agency there were
multiple aspects of the offer that still remained to be clarified. Complainant stated she
understood the Agency’s offer of a position will place her retroactively to 2009 and have her
starting at a GS-11, step 4 (although Complainant stated she believed a step 5 may be
appropriate based on time-in-grade).

The record contains a July 7, 2014 Job Offer memorandum stating it was appointing
Complainant to a Contract Specialist position, GS-1102-11, Step 4.

Complainant filed the present appeal with the Commission on August 27, 2014. Complainant
requests that the Commission order the Agency to amend its offer of employment and place her
in an appropriately-graded position and pay her back pay, with interest, and benefits.
Complainant claims the Agency failed to provide a clear statement as to the grade level of the
position to which it is restoring her. Complainant notes the Agency agreed to hire her,
effective January 1, 2009, into a GS-1102 Grade 9/11 career ladder Contract Specialist
0120143011

4
position, which she agrees is the correct position. However, Complainant claims the Agency
to date has failed to clarify what grade level it intends to place her in upon reinstatement.2

The Agency states that based on Complainant’s resume and her prior Federal employment
history, the civilian personnel representatives determined that Complainant’s qualifications
placed her at the pay grade of GS-09, Step 1. The Agency states it has consistently maintained
that Complainant would have been promoted to a grade, GS-11, Step 5 (had she not been
discriminatorily nonselected) and asserts that once she begins working at the Agency she will
be placed into a GS-11, Step 5 Contract Specialist position.

The Agency contends that the payment of back pay and interest is now being processed. The
Agency states it was unable to process Complainant’s back pay until it received certain
necessary documents, including direct deposit forms and bank information from Complainant.
Additionally, the Agency notes that the Internal Revenue Service W-4 form, first requested by
the EEO Officer in May 2014, was received only on September 15, 2014 (when the Agency
was submitting its instant brief). The Agency states it has been diligently cooperating with
Complainant to timely process the payments and notes that interim calculations have been
provided to her. The Agency contends that payment of back pay plus interest, through
September 20, 2014, is expected to be processed on September 30, 2014. The Agency notes
its obligation for back pay continues until Complainant starts her employment and
acknowledges that the September 2014 payment will not constitute final payment. The Agency
argues an award of attorney’s fees is not appropriate.

ANALYSIS AND FINDINGS

EEOC Regulation 29 C.F.R. § 1614.504(a) provides that a final agency action that has not
been the subject of an appeal or a civil action shall be binding on the agency. The regulation
provides further that if a complainant believes that the agency has not complied with the terms
of the final decision, that the complainant shall notify the Agency EEO Director, in writing,
within thirty days of the date on which the complainant knew or should have known of the
noncompliance. 29 C.F.R. § 1614.504. If Complainant does not receive a response or is not
satisfied with said response, a complainant may appeal to the Commission for a determination
as to whether the agency is in compliance. 29 C.F.R. § 1614.504(b).

Upon review, the Commission finds that the record is inadequately developed for us to make a
determination on whether the Agency complied with the EEOC AJ’s order regarding placing
Complainant into a substantially equivalent position, retroactive to January 2009. We note that
both Complainant and the Agency contend that the Contract Specialist position is the
appropriate position into which Complainant should be placed. However, we find the record
does not contain sufficient information to determine whether the Agency offered to place

2 We note that Complainant is not arguing that the Agency failed to comply with other remedial
provisions of the AJ’s decision and we shall therefore not address such provisions in this
appeal.
0120143011

5
Complainant into the Contract Specialist position at the appropriate GS grade and step level.
The record indicates that the initial Contract Specialist, YA-1102-2, position from which
Complainant was not selected in 2009, no longer exists as it fell under the NSPS, which is no
longer used by the Agency. The record reveals that the Contract Specialist positions under the
NSPS were converted into corresponding GS Contract Specialist positions. However, other
than emails from the Agency’s EEO Officer and unsupported statements made in the Agency’s
appellate brief, we find the record does not contain sufficient information on the conversion
process for Contract Specialist positions from NSPS to the GS system. Specifically, we note
that there are no affidavits from a Human Resource Specialist or a member of the Agency’s
Civilian Personnel Advisory Center and no other documentation detailing the process by which
Contact Specialists under NSPS were converted to the GS system during the relevant time.
Although the Agency states in its brief that based on Complainant’s resume and her prior
federal employment history, the civilian personnel representatives determined that
Complainant’s qualifications placed her at the pay grade of GS-09, Step 1, we note the record
does not contain persuasive evidence to support how this determination was made.

In its appellate brief, the Agency states that Selectee 1 was “hired in January 2009, as a GS-
09, step 4, and left the position in July 2012, as a GS-9, Step 6. (Information provided
telephonically by civilian personnel and USMTM to the undersigned.)” However, we note the
record contains an SF-50 showing Selectee 1 was hired effective January 4, 2009, as a
Contract Specialist, TSW-1102-09, step 4 and thus, was not hired under the GS system.
Additionally, we note the record does not contain other SF-50s showing the subsequent step
and/or grade increases for Selectee 1. Nor does the record contain documentation showing the
conversion process from NSPS to the GS system for Selectee 1. Moreover, we find the
statement by Agency counsel that such information was “provided telephonically by civilian
personnel and USMTM” to her does not constitute persuasive evidence in support of the
Agency’s assertion. Further, even if Selectee 1’s Contract Specialist position under the NSPS
converted to a GS-9, step 4 in the GS system, the Agency does not address why Selectee 1
started at the GS-9, step 4 level, while it determined Complainant would have started at the
GS-9, step 1 level in January 2009.

Additionally, we note the record contains the modified June 6, 2014 revised offer letter stating
that the Agency was changing the grade level to the GS-1102, Grade 11 level. However, that
offer did not specify which step Complainant was being given. We note the record does
contain a July 7, 2014 Job Offer memorandum stating it was appointing Complainant to a
Contract Specialist position, GS-1102-11, step 4. However, we also note that in its appellate
brief, the Agency maintained that the GS-11, step 5 is the correct level to place Complainant.
Thus, we find it is not clear which grade and step level the Agency determined Complainant
should start at in 2014.

Based on the lack of persuasive evidence in the record, the Commission is unable to determine
whether Complainant was placed in an appropriate position as specified in the AJ’s decision.
Thus, we find that on remand, the Agency should provide evidence documenting its overall
process for converting Contract Specialists from the NSPS into the GS system during the
0120143011

6
relevant time. The Agency should also provide specific evidence showing how Selectee 1’s
(and any other relevant comparatives) Contract Specialist position was handled under the
conversion process and provide documentation of subsequent within grade step increases
and/or promotions that Selectee 1 (and any other comparatives) received. The Agency should
also provide evidence on how it determined the appropriate GS grade and step level into which
Complainant would be placed effective January 2009. In addition, the Agency should provide
evidence identifying how subsequent step and grade increases were determined for
Complainant, including the date and level of pay for those increases. The Agency should also
clearly identify the starting GS grade and step for Complainant’s appointment to the Agency as
a result of the June 2014 job offer or any new offer.

Since the Commission cannot determine whether Complainant was offered the appropriate
position, we cannot make a determination on back pay or attorney’s fees at this time.
However, we note at the time of Complainant’s appeal, the Agency had only provided
Complainant with interim back pay calculations, which did not include an interest calculation.
Thus, on remand we find the Agency should provide Complainant with final back pay
determinations, including interest calculations.

CONCLUSION

Accordingly, the Agency’s final decision finding that it was in compliance with its final order
is VACATED and the matter is REMANDED to the Agency for further action in accordance
with the Order herein.

ORDER

Within 60 calendar days of the date this decision is issued, the Agency shall take the following
actions:

1. The Agency shall provide affidavits from a Human Resource Specialist or a member
of the Agency’s Civilian Personnel Advisory Center and any other relevant
documentation detailing the process by which Contact Specialists under NSPS were
converted to the GS system during the relevant time.
2. The Agency shall clearly identify the starting GS Grade and step level for
Complainant’s placement in the Contract Specialist position in January 2009.
Specifically, the Agency shall provide evidence indicating the information it used to
make this determination.
3. The Agency shall provide evidence identifying how subsequent step and grade
increases after January 2009, were determined for Complainant, including the date
and level of pay for those increases.
4. The Agency shall provide specific evidence showing how Selectee 1’s (and any
other relevant comparatives’) Contract Specialist position was handled under the
conversion process and provide documentation of subsequent within grade step
0120143011

7
increases and or promotions that Selectee 1 (and any other comparatives) received
during the relevant time.
5. The Agency should also clearly identify the starting grade and step for
Complainant’s appointment to the Agency as a result of the June 2014 job offer or
any new offer.
6. If the Agency determines Complainant’s placement into the Contract Specialist
position was at a higher GS grade or step level, then the Agency should offer
Complainant the higher grade or step, and pay her any corresponding increased pay
due.
7. The Agency shall recalculate the back pay and interest owed to Complainant in
accordance with 29 C.F.R. § 1614.501. The Agency shall provide Complainant
with a detailed statement clarifying how her 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 Complainant for the
undisputed amount.
8. 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. 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.”

ATTORNEY'S FEES (H0610)

If Complainant has been represented by an attorney (as defined by 29 C.F.R.
§1614.501(e)(1)(iii)), 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 (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
0120143011

8
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).

0120143011

9
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

December 7, 2016
Date