Complainant,v.Robert McDonald, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

Sep 10, 2015

01-2013-3158-0500 (E.E.O.C. Sep. 10, 2015)

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

,
Complainant,

v.

Robert McDonald,
Secretary,
Department of Veterans Affairs,
Agency.

Appeal No. 0120133158

Hearing No. 541-2011-00213X

Agency No. 200P-0554-2010104612

DECISION

On August 19, 2013, Complainant filed an appeal from the Agency’s July 24, 2013, final
order 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. and the Age Discrimination in Employment Act of 1967 (ADEA),
as amended, 29 U.S.C. § 621 et seq. For the following reasons, the Commission MODIFIES
the Agency’s final order on remedies on a finding of discrimination.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a nurse paid on a
fee-basis calculated based on the time she worked at the Agency’s Pueblo Community Living
Center located in Pueblo, Colorado. The Agency’s Eastern Colorado Health Care System
(ECHCS) encompassed the Agency’s Pueblo facility.

In 2009, the Agency’s Office of Inspector General (OIG) issued a report concluding that the
Portland, Oregon VA Medical Center (PVAMC) had mismanaged fee-based appointments of
nurses. The mismanagement included the fact that fee-based appointees were being paid on a
time basis rather than on the task or service basis for which fee-basis appointees were supposed
to be paid under law. The OIG recommended that the PVAMC discontinue fee-basis
appointments immediately.

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Following the release of the OIG report, the ECHCS audited its fee-basis appointments. After
the audit, the ECHCS concluded it needed to convert fee-based appointees who were being
paid on a time basis, rather than on a task or service basis, to an employment status of full-
time, part-time, or intermittent.

Complainant had been working for the Agency as a nurse paid on a fee-basis calculated based
on time worked. Therefore, her appointment had to be changed. Complainant was converted
to the status of intermittent employee because the Agency did not have an opening for a
registered nurse at the Pueblo facility where Complainant worked.

Fee-basis appointees are not employees. In order to be changed to an employment status,
Complainant’s qualifications had to be assessed by the Agency’s Nurse Professional Standards
Board (NPSB) to determine her nurse grade and step, a process known as “boarding.” As a
result of the grade and step at which she was boarded, Complainant’s pay decreased by
approximately $7.13 to $7.19 per hour, from $30 per hour to a figure between $22 and $23
per hour.

On November 28, 2012, Complainant filed an EEO complaint alleging that the Agency
discriminated against her on the bases of sex (female) and age (over 40) when:

Complainant was treated in a disparate manner when, beginning March 2010 to the
present, Complainant continuously receives lesser pay due to the mandatory change in
her appointment from fee-basis to intermittent status.

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 timely requested a hearing.

The AJ determined the investigative record in the case was insufficiently developed. The AJ
issued an Order on October 3, 2012, ordering the Agency to correct those deficiencies. The
Agency did not respond within the time allotted. Thereafter, the AJ issued an Order to Show
Cause, requiring the Agency to show cause why it should not be sanctioned both for failure to
develop the administrative record sufficiently, and for failure to comply with the AJ’s October
3, 2012 Order.

On November 7, 2012, the AJ issued another Order requiring the Agency to produce the
documents it had been ordered to provide in October. On November 8, 2012, the Agency
provided additional documentation to the AJ. On November 9, 2012, the Agency responded to
the AJ’s Order to Show Cause.

On March 13, 2013, the AJ issued an Order Sanctioning Agency With Default Judgment. The
AJ noted the Agency did not establish good cause for its failure to adequately investigate the
complaint. The AJ noted that although the Agency did provide additional information, this
was done in response to the AJ’s November 7, 2012 Order. The AJ noted the November 7,
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2012 Order was issued because the documents were necessary in determining the appropriate
remedy. Moreover, the AJ found even with the additional information, the Agency was still
not in compliance with her October 3, 2012 Order for documents. Thus, the AJ issued the
sanction of default judgment.

Thereafter, the AJ held a hearing for the limited purpose of taking testimony and receiving
documents about whether Complainant could establish a prima facie case of discrimination,
and the nature and extent of damages.

The AJ issued a decision on July 12, 2013. The AJ found Complainant did not establish a
prima facie case of sex or age discrimination and thus, ordered no remedies for her complaint.

The Agency subsequently issued a final order on July 24, 2013. The Agency’s final order
fully implemented the AJ’s decision sanctioning the Agency with a default judgment. The
Agency also accepted the AJ's decision that Complainant was not entitled to remedies in
association with the default judgment.

On appeal, Complainant argues that the AJ found the Agency engaged in discrimination and
that due to the Agency’s actions she lost wages in the amount of $41,585.60. Complainant
notes she is still an intermittent employee and by not being converted to a career employee she
has lost out on sick leave, annual leave, medical benefits, and dental benefits.

In response, the Agency argues that contrary to Complainant's claim in her appeal statement,
the AJ did not find that the Agency had engaged in discriminatory conduct. Rather, the
Agency argues that the AJ found that Complainant failed to meet her burden of proof, and that
the procedural irregularities in communication and document-gathering were mostly the
outcome of the Agency having to undertake a task with which it was unfamiliar, namely
converting nurses from fee-basis status to an appointment as an employee.

ANALYSIS AND FINDINGS

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.

An AJ’s credibility determination based on the demeanor of a witness or on the tone of voice
of a witness will be accepted unless documents or other objective evidence so contradicts the
testimony or the testimony so lacks in credibility that a reasonable fact finder would not credit
it. See EEOC Management Directive 110, Chapter 9, at § VI.B. (Aug. 5, 2015).

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Upon review, we find that providing Complainant backpay is not appropriate in this case
because she failed to establish a prima facie case of discrimination. In order to establish a
prima facie case, Complainant must demonstrate that: (1) she is a member of a protected class,
(2) she was subjected to adverse treatment, and (3) she was treated differently than otherwise
similarly situated employees outside of her protected class. Walker v. U.S. Postal Serv.,
EEOC Appeal No. 01A14419 (Mar 13, 2003); Ornelas v. Dep’t of Justice, EEOC Appeal No.
01995301 (Sept. 26, 2002). It is not necessary, however, for her to rely strictly on
comparative evidence in order to establish an inference that the Agency was motivated by
unlawful discrimination. Soriano v. U.S. Postal Serv., EEOC Appeal No. 01A14814 (Feb.
21, 2004). Although Complainant is a member of a protected class and was subjected to an
adverse action, she neither identified any similarly situated individuals outside of her protected
class that were treated more favorably nor submitted evidence establishing an inference of sex
or age discrimination. Thus, we agree with the AJ that Complainant’s failure to establish a
prima facie case precludes her entitlement to back pay as a remedy.

The Commission has held that failure to establish a prima facie case of discrimination does not
prevent Complainant from being awarded other remedies. The Commission has held that by
issuing a default judgment against the Agency as a sanction for its noncompliance and untimely
investigation, we are finding in Complainant’s favor on her complaint of discrimination, and
she may be entitled to an award of compensatory damages. Montes-Rodriguez v. Dep’t of
Agriculture, EEOC Appeal No. 0120080282 (January 12, 2012), request for reconsideration
denied, EEOC Request No. 0520120295 (December 20, 2012).

In the present case, Complainant was given the opportunity at the hearing to present evidence
of both a prima facie case and her entitlement to damages. Complainant testified that even
though she was working comparable hours with the Agency after her conversion to an
intermittent employee, the pay was less and as a result, she had to get another full-time job.
Complainant stated she “worked pretty much nonstop for a lot of months to make up the
money difference.” Complainant testified she was frustrated, tired, and suffered from stress as
a result of the Agency’s actions. Upon review, we conclude that an award of $2,500 in
nonpecuniary compensatory damages will adequately compensate Complainant for the harm
she suffered as a result of the Agency's actions. We further add the remedies of posting a
notice of the finding of discrimination, consideration of discipline for responsible agency
officials regarding case processing, and EEO training for responsible agency officials
regarding case processing.

CONCLUSION

Accordingly, the Agency’s finding of discrimination is AFFIRMED. The Commission
MODIFIES the relief in accordance with this decision and the Order herein.

ORDER

The Agency shall take the following actions:
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1. Within 60 days of the date this decision becomes final, pay Complainant $2,500 in
nonpecuniary, compensatory damages.
2. Within 60 days of the date this decision becomes final, the Agency shall provide EEO
training to responsible management officials regarding case processing.
3. Within 60 days of the date this decision becomes final, the Agency shall consider taking
appropriate disciplinary action against responsible management officials. The
Commission does not consider training to be disciplinary action. The Agency shall
report its decision to the Compliance Officer. 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. If any responsible management officials have left the Agency’s employ, the
Agency shall furnish documentation of their departure date(s).

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 evidence
that all corrective action has been implemented.

POSTING ORDER (G0914)

The Agency is ordered to post at its Pueblo facility copies of the attached notice. Copies of the
notice, after being signed by the Agency's duly authorized representative, shall be posted both
in hard copy and electronic format by the Agency within 30 calendar days of the date this
decision becomes final, and shall remain posted for 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 10 calendar days of the expiration of the posting period.

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
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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 (M0815)

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, 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 (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,
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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 Complainants Right to File
a Civil Action for the specific time limits).

FOR THE COMMISSION:

______________________________
Carlton M. Hadden, Director
Office of Federal Operations

September 10, 2015
Date