Celinda L.,1 Petitioner,v.Dr. Mark T. Esper, Secretary, Department of the Army, Agency.

Equal Employment Opportunity Commission

Nov 30, 2018

0420180007 (E.E.O.C. Nov. 30, 2018)

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

Celinda L.,1
Petitioner,

v.

Dr. Mark T. Esper,
Secretary,
Department of the Army,
Agency.

Petition No. 0420180007
Appeal No. 0120143011
Hearing No. 570-2010-00606X
Agency No. ARUSASAC09JUN02714

DECISION ON A PETITION FOR ENFORCEMENT

On December 13, 2017, the Equal Employment Opportunity Commission (EEOC or Commission)
docketed a petition for enforcement to examine the enforcement of an Order set forth in EEOC
Appeal No. 0120143011 (December 7, 2016). The Commission accepts this petition for
enforcement pursuant to 29 C.F.R. § 1614.503. Petitioner alleged that the Agency failed to fully
comply with the Commission’s order in EEOC Appeal No. 0120143011. For the following
reasons the petition is DENIED,

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). Petitioner applied for the
position. Petitioner’s name appeared on the Web Based Referral List. Petitioner 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, Riyadh,
Saudi Arabia. The position was covered by NSPS. Petitioner applied for the position.

1 This case has been randomly assigned a pseudonym which will replace Petitioner’s name when
the decision is published to non-parties and the Commission’s website.
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2
Petitioner’s name appeared on the Web Based Referral List. Petitioner was not selected for the
position. Selectee 2 was selected for the position, effective June 30, 2009.

On September 14, 2009, Petitioner 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 Petitioner 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). Petitioner 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
Petitioner 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 Petitioner. The AJ ordered the Agency to provide Petitioner 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 Petitioner $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 Petitioner was not selected were 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 offered
Complainant a position under the GS system.
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On April 9, 2014, the Agency provided Petitioner 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 Petitioner 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 Petitioner 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 Petitioner in the Contract Specialist position, GS-1102-9 trainee to GS-11, it learned from
Petitioner that she was not eligible for this position because she did not have a valid work visa.
Further, the Agency determined Petitioner 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 Petitioner 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 Petitioner would start.

On June 9, 2014, Petitioner accepted the position but advised the Agency there were multiple
aspects of the offer that still remained to be clarified. Petitioner 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 Petitioner stated she believed a step 5 may be appropriate based on time-in-grade).

In a July 7, 2014 Job Offer memorandum the Agency stated it was appointing Petitioner to a
Contract Specialist position, GS-1102-11, Step 4.

Petitioner filed an appeal with the Commission on August 27, 2014. Petitioner requested 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. Petitioner claimed the Agency
failed to provide a clear statement as to the grade level of the position to which it is restoring her.
Petitioner noted the Agency agreed to hire her, effective January 1, 2009, into a GS-1102 Grade
9/11 career ladder Contract Specialist position, which she agreed was the correct position.
However, Petitioner claimed the Agency to date has failed to clarify what grade level it intends to
place her in upon reinstatement.2

2 We noted that Petitioner did not argue that the Agency failed to comply with other remedial
provisions of the AJ’s decision and we therefore did not address such provisions in the appeal.
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In EEOC Appeal No. 0120143011, the Commission found the record was inadequately developed
to make a determination on whether the Agency complied with the EEOC AJ’s order regarding
placing Petitioner into a substantially equivalent position, retroactive to January 2009. Thus, we
remanded the matter for further processing. The Agency was ordered take the following actions:
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; clearly
identify the starting GS Grade and step level for Petitioner’s placement in the Contract Specialist
position in January 2009 and provide evidence indicating the information it used to make this
determination; provide evidence identifying how subsequent step and grade increases after January
2009, were determined for Petitioner, including the date and level of pay for those increases;
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 during the relevant time; and clearly identify the starting grade and step
for Petitioner’s appointment to the Agency as a result of the June 2014 job offer or any new offer.
The Agency was instructed that if it determined Petitioner’s placement into the Contract Specialist
position was at a higher GS grade or step level, then the Agency should offer her the higher grade
or step, and pay her any corresponding increased pay due. The Agency was also instructed to
recalculate the back pay and interest owed to Petitioner in accordance with 29 C.F.R. § 1614.501.
Petitioner was ordered to cooperate in the Agency’s efforts to compute the amount of back pay
and benefits due, and provide all relevant information requested by the Agency.

On August 30, 2017, Petitioner submitted the petition for enforcement at issue. Petitioner claimed
that the Agency failed to correctly assess her grade upon reinstatement and improperly concluded
on July 31, 2017 that she was not entitled to placement at the GS-12 level. Petitioner also argued
that the Agency was non-compliant regarding back pay. Specifically, Petitioner noted the Agency
failed to make any retroactive withholdings or deductions as required under the Back Pay Act.

Regarding back pay, the record reveals that following the filing of her petition for enforcement,
the parties continued corresponding about Petitioner’s claims that the Agency incorrectly
calculated her back pay. In an April 4, 2018 letter from Petitioner’s attorney, the attorney stated
that as a result of her efforts, Petitioner’s benefits were restored as of March 2018. The attorney
submitted a petition for attorney’s fees and costs for her work in securing back pay, which the
Agency paid in full. The attorney noted that her petition for attorney’s fees did not cover fees for
time spent in relation to the portion of Petitioner’s pending petition for enforcement relating to
whether Petitioner should have been paid at the GS-12 level. The attorney noted that “If the
Commission grants the Complainant’s Petition for Enforcement on the remaining argument, i.e.,
back pay at GS-12, Complainant reserves the right to submit supplemental fee petition(s)
addressing, as necessary and appropriate, for fees incurred in relation to his basis.” Thus, we find
the only pending matter in the instant Petition for Enforcement is whether the Agency correctly
determined that Petitioner was not entitled to placement at the GS-12 level.

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The record contains an email dated July 31, 2017, from the EEO Officer to Petitioner’s attorney.
The email stated the Agency determined that hiring Petitioner at the GS-11, step 5 position was
correct concerning the information they had at the time. The email further stated that “it appears
that the [A]gency might have erred in offering the developmental position of a GS 9/11 since the
original position . . . highest grade was a GS-9. Even though the [A]gency recognizes at this time
that this error occurred, the [A]gency would not be taking any corrective steps.” The Agency
noted the original position to which Petitioner applied was a GS-9 prior to and after conversion to
NSPS. The Agency stated that the claim that in February 2012, Petitioner would have been
promoted to the GS-12 level since she would have been a GS-11 was not correct because if the
Agency would have originally calculated it based on the correct position, she would have still been
a GS-1102-09 and therefore her duties would have been accreted to the GS-1102-11 level and not
the GS-1102-12 level. The Agency also stated there is no way of knowing if Petitioner would
have been selected for the GS-12 position when it became available in late 2013; however, based
on the data they know she would have been promoted to the GS-1102-11 position in February
2012.

Petitioner argues that in its July 31, 2017 determination, the Agency asserts, for the first time, that
it erred in offering her a GS-9 developmental position since the original position’s highest grade
was a GS-9. Petitioner states that prior to the Agency’s unsupported change in argument, it
consistently and correctly determined that the position to which she was entitled was a career
ladder, GS-9/11. Petitioner notes that the Agency’s original communications in July 2014, stated
that the GS-9 position into which she was entitled to be placed had full promotion potential to the
GS-11 level. Petitioner also notes that it is undisputed that the Agency retroactively restored her
to a GS 9/11 Contract Specialist position. She argues the Agency cannot now claim that it is
exempt from making correct adjustment to her pay because it changed its mind.

Petitioner notes the position to which she originally applied was a YA-1102-02 Contract Specialist
position. Petitioner argues it is improper for the Agency to compare her to Selectee 1’s career
progression who never advanced to a GS-11 as: (1) Selectee 1 separated in July 2012; and (2)
Selectee 1 was employed under the TSW pay system (which maxes out at grade 9), as a non-U.S.
Citizen, rather than under the NSPS or GS systems. Rather, Petitioner contends the relevant
comparatives are those individual occupying nonsupervisory YA-02 and GS-11 Contracting
Specialist positions in February 2009 – 2011. Petitioner argues that evidence indicates that she
would have been eligible for conversion to Grade 12 in February 2012, as was the GS-11
incumbent at the time.

ANALYSIS AND FINDINGS

The record reveals that Petitioner applied and was not selected for the position of YA-1102-02
Contract Specialist, Vacancy Announcement EUFH08109749. The record contains a Request for
Personnel Action from October/November 2008 for the YA-1102-02 Contract Specialist position
noting that the position was formerly a GS-9. The Job Announcement for EUFH08109749 lists
the position as Contract Specialist, YA-1102-2 and does not indicate there is any promotion
potential for the position.
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The NSPS Pay Band/GS Grade Equivalency Chart reveals that NSPS Pay Band YA-1 covered
GS-5 through GS-11 positions and that NSPS Pay Band YA-2 covered GS-9 through GS-13
positions. According to the NSPS Conversion Tables, GS-9 and GS-11 positions without
promotion potential were converted to pay band 2. GS-9 and GS-11 positions with promotion
potential were considered “developmental” and were converted to pay band 1.

Upon review of the record, we find Complainant has not shown she should have been promoted to
the GS-12 in February 2012. Neither party disputes that had Petitioner been hired in January 2009,
this would have been the equivalent of a GS-9 position. We find the record reveals that the position
of YA-1102-02 Contract Specialist, Vacancy Announcement EUFH08109749, was the equivalent
of a GS-9 position with no promotion potential. As noted in the NSPS Pay Band/GS Grade
Equivalency Chart, GS-9 positions with no promotion potential were listed in Pay Band YA-2.
Petitioner’s argument that she was eligible for conversion to Grade 12 in February 2012 is without
merit, as she compares herself to the GS-11 incumbent at that time. While we recognize that the
Agency placed Complainant into a career ladder GS-9/11 position, this appears to have been in
error. Since Petitioner would have only occupied a GS-1102-09 equivalent position in February
2012, she cannot compare herself to a GS-11 incumbent who at that time received a promotion to
a GS-12 level. We do not address the appropriateness of the Agency’s back pay calculations or
its actions in reinstating Complainant to a GS-9/11 trainee position as those matters are not
currently before the Commission.

CONCLUSION

Based upon a review of the record and the Petitioner’s petition, the Commission has determined
that the Agency has complied with its Order in EEOC Appeal No. 0120143011 (December 7,
2016). Thus, Petitioner’s petition for enforcement is DENIED.

COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (S0610)
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. 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.

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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

November 30, 2018
Date