Crysta T.,1 Complainant,v.Peter O’Rourke, Acting Secretary, Department of Veterans Affairs (Veterans Health Administration), Agency.

Equal Employment Opportunity Commission

Nov 8, 2018

0120172513 (E.E.O.C. Nov. 8, 2018)

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

Crysta T.,1
Complainant,

v.

Peter O’Rourke,
Acting Secretary,
Department of Veterans Affairs
(Veterans Health Administration),
Agency.

Appeal No. 0120172513

Hearing No. 520-2015-00284X

Agency No. 200H05232014102747

DECISION

The Equal Employment Opportunity Commission (EEOC or Commission) accepts Complainant's
appeal regarding her contention that the Agency was not in compliance with its June 15, 2018 final
order. The appeal is accepted in accordance with 29 C.F.R. § 1614.504(b).

At the time of events giving rise to this complaint, Complainant worked as a Human Resources
Specialist (HRS), GS-11, at the Agency’s Boston Veterans Affairs Healthcare System in Brockton,
Massachusetts. On August 4, 2014, Complainant filed a formal EEO complaint alleging that the
Agency discriminated against her on the basis of age when, on March 31, 2014, she became aware
that the Recruitment and Placement Chief had non-competitively promoted other human resources
specialists to the GS-12 level, but had not promoted Complainant. In October 2014, Complainant
left the Brockton VA facility and began working at the Agency’s VA Medical Center in
Manchester, Massachusetts.

Following a hearing, an EEOC Administrative Judge (AJ) issued a decision finding that
Complainant had been subjected to discrimination.

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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To remedy the discrimination, the AJ ordered the Agency to, among other things, provide
Complainant with an offer of reinstatement and promotion to the position of Human Resource
Specialist (HRS) GS-12, within her geographical area and to provide back pay with interest;
provide training to the supervisors and managers in the Human Resources Division at the Boston
Veterans Affairs Healthcare System in Brockton, Massachusetts; consider disciplining the
responsible management officials; and to post a notice of discrimination at the facility. The
Agency subsequently issued a final order fully implementing the AJ’s decision and the relief
ordered. On April 25, 2017, the Agency offered Complainant a GS-12 Human Resources
Specialist position at the Agency’s Brockton Campus.

Complainant contends that the Agency has failed to comply with its final order because the
position offered was not in her geographical location. The record shows that after filing her EEO
complaint, Complainant left the Brockton, Massachusetts facility, moved to a different part of the
state, and took a position at a different Agency facility in Manchester, Massachusetts. Instead of
offering Complainant a GS-12 HRS position within her current geographical proximity, the
Agency’s offer of promotion was within the Brockton, Massachusetts geographical area.
Complainant notes that the position offered is four hours away from her current geographic area.

We agree with Complainant that such an offer of reinstatement and promotion does not comply
with either the AJ’s or Agency’s orders. The AJ’s order (which the Agency fully implemented in
its final order) required the Agency to present Complainant an offer of promotion and
reinstatement in “her geographical location [emphasis added].” The AJ further clarified her intent
by acknowledging in her order that Complainant had moved to a different geographical area in
October 2014. Therefore, we find that it was clear the AJ intended for Complainant to receive an
offer of reinstatement in her current location rather than the Brockton, Massachusetts geographical
area.

The Agency argues that there is no GS-12 HRS position in Complainant’s current geographical
location. Pursuant to 29 C.F.R. § 1614.501(b)(1)(i), the Agency is required to offer Complainant
“the position [she] would have occupied but for the discrimination suffered by [her], or a
substantially equivalent position [emphasis added].” Complainant v. Dep’t of Veteran Affairs,
EEOC Appeal No. 120114011 (Sept. 12, 2014). A substantially equivalent position is one that is
similar in duties, responsibilities, and location. See Patterson v. Dep't. of Agric., EEOC Request
No. 05940079 (Oct. 21, 1994). The burden to prove substantial equivalency rests with the agency.
Shaw v. Dep't. of the Air Force, EEOC Request No. 05930370 (Jul. 15, 1994). The measure of
“substantial equivalence” should be based on the position that was the subject of the original
complaint as it originally existed. See Hafiz v. Dep't. of Def., EEOC Petition No. 049600021 (July
11, 1997); and Geraldine G. v. U.S. Postal Serv., EEOC Petition No. 0420170001 (May 4, 2017).
The Agency has not met its burden.

Accordingly, we find that the Agency has failed to fully comply with the final order, and we
therefore, REMAND this matter to the Agency to take corrective action in accordance with this
decision and the Order below.

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ORDER

Within 30 calendar days from the date this decision is issued, the Agency shall extend to
Complainant a written offer of reinstatement and promotion within her geographical area to a GS-
12 Human Resources Specialist position, retroactive to January 1, 2013. Complainant shall be
provided 15 calendar days from receipt of this offer to decide whether to accept or reject it. Failure
to respond within 15 days will be construed as rejection of the offer. If Complainant accepts the
offer, she shall be retroactively promoted to the GS-12 position, effective January 1, 2013, and
awarded back pay as prescribed in 5 C.F.R. § 550.805. Back pay shall be computed from January
1, 2013 until the date she begins her GS-12 position. Back pay shall be calculated as the pay that
would have been accrued had Complainant been promoted on January 1, 2013 (less interim
earnings), interest where sovereign immunity has been waived, and all benefits and training that
she would have earned but for the discriminatory act. Where applicable, back pay specifically
includes retroactive tax-deferred contributions to Complainant's TSP account and any earnings
which would have accrued during the relevant period. If Complainant rejects this offer, she shall
be awarded back pay from January 1, 2013, through the date she rejects the offer. Complainant
has a duty to mitigate her damages.

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). 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.

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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.
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.
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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

November 8, 2018
Date