0120110466
08-26-2011
Fredrick S. Leach, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Fredrick S. Leach,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120110466
Hearing No. 460-2007-00129X
Agency No. 2003-0580-2006100773
DECISION
On October 23, 2010, Complainant brought this matter before the Commission
regarding his contention that the Agency was not in compliance with its
January 25, 2010 Final Decision, which fully implemented the decision
of an EEOC Administrative Judge (AJ) who found the Agency violated
Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42
U.S.C. § 2000e et seq., when it discriminated against Complainant on
the basis of reprisal. For the following reasons, the Commission AFFIRMS
the Agency’s finding of discrimination and its determination dated
September 30, 2010, regarding its compliance with its own Final Order.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as
a Urologist at the Agency’s Michael E. DeBakey Veterans Administration
Medical Center (MEDVAMC) (herein the Medical Center or the Center)
facility in Houston, Texas. Complainant filed an EEO complaint alleging
that the Agency discriminated against him on the basis of reprisal for
prior protected EEO activity under Title VII of the Civil Rights Act of
1964 when:
1. By notice dated November 29, 2005, and effective December 25,
2005, Complainant was informed that his tour of duty was changed;
2. By notice dated November 29, 2005, and effective December 25,
2005, Complainant was informed not to have contact with Baylor College of
Medicine residents in any training, instruction, or supervisory capacity;
3. By correspondence dated May 24, 2006, Complainant was assigned
tasks with "unrealistic" timeframes;
4. On January 29, 2007, Complainant received an unfair and inaccurate
proficiency evaluation; and
5. On January 29, 2007, Complainant was terminated from his position
as a staff urologist at the Michael E. DeBakey VA Medical Center.
At the conclusion of the investigation, the Agency provided Complainant
with a copy of the report of investigation and notice of his right to
request a hearing before an EEOC Administrative Judge (AJ). Following a
hearing on January 29, 2008, and February 25, 2008, the AJ issued a
decision on December 16, 2009, finding that the Agency had violated Title
VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et
seq. when it retaliated against Complainant for his prior protected
activity, which discrimination ultimately led to his separation from
the Agency (claims (1) through (5)). The Agency subsequently issued
a Final Order adopting the AJ’s finding that Complainant proved that
the Agency subjected him to discrimination as alleged. The Agency’s
Final Order fully implemented the relief ordered by the AJ.
As relief, the AJ ordered, in pertinent part:
1. The Agency shall within 30 calendar days of the date this decision
becomes final, reinstate Complainant to the position as a staff urologist
at MEDVAMC retroactive to official date of termination. The Agency shall
retroactively promote Complainant to the next appropriate step and/or
grade, respectively, if appropriate, on the one year anniversary of his
reinstatement and then on an annual basis or according to the VA policy.
2. The Agency shall determine the appropriate amount of back pay
(with interest, if applicable) and other benefits due Complainant,
pursuant to 5 C.F.R §550.805 of the Back Pay Act from the date of
removal until March 1, 2008, no later than 60 calendar days after the
date this decision becomes final. 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 Complainant for the undisputed amount within
60 calendar days of the date the Agency determines the amount it believes
to be due. 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 Office of Federal Operations,
Equal Employment Opportunity Commission, P.O. Box 77960, Washington,
D.C. 20013.
3. The Agency shall revise Complainant's performance evaluation to
reflect an outstanding rating and issue a performance bonus to reflect
the same.
4. The Agency shall remove any and all disciplinary actions and
negative notes, log entries, etc., including the Performance Improvement
Plan and removal, from any and all personnel files for Complainant. The
Agency shall also issue a revised PS Form 50 to reflect continuous
service from date of entry to present for Complainant.
5. The Agency shall compensate Complainant $56,207.47 for pecuniary
damages within 60 calendar days of the date on which this decision
becomes final.
6. The Agency shall compensate Complainant $125,000.00 for
non-pecuniary damages within 60 calendar days of the date on which this
decision becomes final.
7. The Agency shall post written notices for 90 days in conspicuous
places at their respective agencies that discrimination has been found
on this complaint.
8. The Agency shall take immediate steps, no later than 60 days after
this decision becomes final, to provide training to all officials involved
in this case on the current state of employment discrimination law and
goals behind the law requiring equal employment opportunities for all.
By letter dated May 15, 2010, Complainant notified the Commission and
the Agency that the Agency’s calculation of his back pay was incorrect.
By letter dated August 10, 2010, Complainant notified the Commission that
the Agency did not revise official Agency records to reflect continuous
federal service from the date of his entry on duty to the present.
In a decision dated September 30, 2010, the Agency responded to
Complainant’s allegation of non-compliance described in his letter of
August 10, 2010. The Medical Center’s Human Resources Manager (H1)
stated that all documents were removed from Complainant’s Official
Personnel File (OPF) that made reference to the overturned termination and
stated that the electronic OPF reflects continuous, uninterrupted service,
which Complainant may access at anytime to verify. The Agency concluded
that it had fully complied with the Agency Final Order dated January 25,
2010. Agency’s September 30, 2010 Response to Petition for Enforcement,
at 3; Record on Appeal (ROA), at 48. The instant appeal followed.
CONTENTIONS ON APPEAL
On appeal, Complainant states that the Agency has failed to comply with
the continuous service and back pay provisions of the AJ’s order for
relief when the Agency failed to revise his personnel records to reflect
that Complainant experienced continuous federal service from the date
he was initially hired to the present. Complainant acknowledges that
the Agency did correct his employment letter to reflect reappointment
and not an initial appointment; however, Complainant argues, the Agency
did not correct Complainant's credentialing and reappointment to reflect
continuous federal service from the date of his entry on duty to the
present nor with respect to his hospital privileges.
Further, Complainant states that the Agency issued an award of back pay
based on the disparate pay scale used for the Complainant from January
2007 until his reinstatement and did not adjust Complainant's back pay to
reflect the back pay that he would otherwise have earned or received but
for the prohibited discrimination as ordered by the AJ. Complainant’s
November 20, 2010 Brief in Support of Appeal, at 1.
In response to Complainant’s appeal, the Agency states that Complainant
provides nothing to support his claim that the Agency’s calculation
of his back pay is inaccurate, other than his own statement that his pay
should be more. Further, the Agency states that by letter dated July 20,
2010, the Agency’s Medical Center explained to Complainant that due
to technical issues with the VETPRO system the Medical Center was unable
to back date his credentialing electronically to show the period of his
appointment as continuous. The Agency states that the Medical Center
took steps to confirm that Complainant's credentials and privileges were
recognized internally as continuous and that he was fully reinstated as a
licensed Urologist. Agency’s December 27, 2010 Brief on Appeal at 4;
ROA at 6.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. § 1614.504(a) provides that a complainant
may file an appeal with the Commission for enforcement of an agency's
final action through which the agency has implemented the decision of
an Administrative Judge.
In the instant case, we find the record on appeal indicates that the
Agency has complied with the AJ's order for relief with respect to
correction of Complainant’s personnel records to reflect continuous
employment from the date of his initial hire through August 31, 2012.
Specifically, we note that by letter dated July 20, 2010, the Medical
Center’s Chief of Staff explains that the credentialing system
used by the Agency (VETPRO) processed the Agency’s request to amend
Complainant’s personnel records in accordance with the AJ’s order.
The Agency explained that it had exhausted all possibilities to amend
Complainant’s records with the results being that Complainant’s
letter of appointment states that he is credentialed from April 27,
2010 to April 26, 2012. Agency’s July 20, 2010 Letter from Chief of
Staff to Complainant, (labeled) “Exhibit H” and “Exhibit K”, ROA
at 63. We further observe that “Exhibit E” of the Agency’s Brief
on Appeal reflects the issuance of a standard form 50 for Complainant with
an effective date of August 15, 2010, bearing a service computation date
of August 11, 2002, that does not indicate any break in federal service.
ROA at 50. We find the Agency has satisfied the AJ’s Order to reinstate
Complainant (provision (1)) and to issue an SF-50 to reflect continuous
service from date of entry to present (provision (4)). Therefore, in
the Order herein, we shall not reorder the Agency to comply with the
portion of the relief requiring the Agency to issue SF-50 to reflect
continuous service.
With respect to Complainant’s back pay, we find that the AJ’s
discussion of disparate pay rates between part-time urologists based on
race is not part of the remedies the AJ ordered the Agency to provide
Complainant except insofar as Complainant is to be paid “appropriate
back pay” to compensate him for the pay and other monetary benefits
that he was denied as a result of the discrimination identified in his
complaint (provision (2)). We note that Complainant’s complaint
(as amended) did not allege that Complainant was paid less than other
physicians who were not in his protected racial group. In the absence
of any finding from the AJ concerning the disparate pay rates among the
urologists, we decline to order the Agency to recalculate Complainant’s
back pay award based upon the AJ’s observations that there may be or
may have been a racially discriminatory pay system in place. Furthermore,
we find that Complainant has failed to show that the Agency miscalculated
the back pay due him.
CONCLUSION
We AFFIRM the Agency’s Final Decision of January 25, 2010, fully
implementing the AJ’s finding that the Agency discriminated against
Complainant based on reprisal. We further AFFIRM the Agency’s
determination of September 30, 2010, that it has fully complied with
the AJ’s Order for relief regarding continuous service and back pay.
We shall ORDER the Agency to implement the remaining relief articulated in
the AJ’s order, to the extent that it has not yet done so, as slightly
modified herein.
ORDER
To the extent that it has not already done so, the Agency shall take
the following remedial actions:
1. The Agency shall within 30 days of the date this decision becomes
final, reinstate Complainant to the position as a staff urologist at
MEDVAMC retroactive to official date of termination. The Agency shall
retroactively promote Complainant to the next appropriate step and/or
grade, respectively, if appropriate, on the one year anniversary of his
reinstatement and then on an annual basis or according to the VA policy.
2. The Agency shall determine the appropriate amount of back pay (with
interest, if applicable) and other benefits due Complainant, pursuant to
5 C.F.R §550.805 of the Back Pay Act from the date of removal until
March 1, 2008, no later than 60 days after the date this decision
becomes final. 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 Complainant for the undisputed amount within
60 days of the date the Agency determines the amount it believes to be
due. 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 Office of Federal Operations, Equal
Employment Opportunity Commission, P.O. Box 77960, Washington, D.C. 20013.
3. Within 30 days of the date this decision becomes final, the Agency
shall revise Complainant's performance evaluation to reflect an
outstanding rating and issue a performance bonus to reflect the same.
4. The Agency shall remove any and all disciplinary actions and negative
notes and log entries, including the Performance Improvement Plan and
removal, from all personnel files for Complainant.
5. The Agency shall compensate Complainant $56,207.47 for pecuniary
damages within 60 days of the date on which this decision becomes final.
6. The Agency shall compensate Complainant $125,000.00 for
non-pecuniary, compensatory damages within 60 days of the date on which
this decision becomes final.
7. The Agency shall take immediate steps, no later than 60 days of the
date this decision becomes final, to provide training to all responsible
management officials involved in this case on the current state of
employment discrimination law and goals behind the law requiring equal
employment opportunities for all.
8. Within 60 days of the date this decision becomes final, the
Agency shall consider taking appropriate disciplinary action against the
responsible management officials still employed by the Agency. 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
of the responsible management officials have left the Agency's employment,
then 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 supporting documentation verifying
that the corrective action has been implemented.
POSTING ORDER (G0610)
The Agency is ordered to post at its Michael E. DeBakey Veterans
Administration Medical Center (MEDVAMC) in Houston, Texas facility 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.
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
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 (M0610)
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 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 (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 (Z0610)
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
August 26, 2011
__________________
Date
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0120110466
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120110466