Heidi B.,1 Complainant,v.Sylvia Mathews Burwell, Secretary, Department of Health and Human Services, Agency.

Equal Employment Opportunity Commission

Dec 15, 2016

0420160038 (E.E.O.C. Dec. 15, 2016)

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

Heidi B.,1
Complainant,

v.

Sylvia Mathews Burwell,
Secretary,
Department of Health and Human Services,
Agency.

Petition No. 0420160038

Appeal No. 0120152308

Agency No. HHS-OS-0051-2014

DECISION ON A PETITION FOR CLARIFICATION

The Equal Employment Opportunity Commission (EEOC or Commission) docketed a petition
for clarification to examine the enforcement of an Order set forth in EEOC Appeal No.
0120152308 (June 3, 2016). The Commission accepts this petition for clarification pursuant to
29 C.F.R. § 1614.503. The Agency requests clarification of the Commission’s order
regarding back pay.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Human Resources
Specialist at the Office of Secretary (OS), Assistant Secretary for Administration (ASA),
Office of Human Resources (OHR), National Capital Region (NCR), Cleveland, Ohio.
Complainant filed an EEO complaint on September 4, 2014. The Agency defined
Complainant’s complaint as alleging that the Agency discriminated against her on the bases of
race (Caucasian), national origin (Polish), sex (female),2 color (white), and in reprisal for prior
protected EEO activity when:

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.
2 The Agency noted that in her affidavit Complainant also claimed discrimination based on sex
because she was pregnant during some of the events in which she alleged discriminatory
treatment. The Agency stated its analysis would address this where appropriate.
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1. Complainant was paid less than her male coworker for substantially equal work
under equal working conditions from 2011 to present;
2. Complainant continued to be paid less than her male coworker even after a desk
audit conducted in July 2013, concluded she was performing at the GS-13 level;
3. On July 25, 2013, Complainant was informed her position qualified at the GS-13
level but management chose not to give her the accretion of duties and changed the
promotion potential back to GS-12; and
4. In retaliation on August 21, 2014, certain duties Complainant performed were
removed.

The Agency issued a final decision finding Complainant failed to prove the Agency subjected
her to discrimination as alleged. Complainant appealed the Agency’s final decision to the
Commission, and in EEOC Appeal No. 0120152308, the Commission noted that there was a
dispute between the parties regarding the definition of the four claims identified by the
Agency. The Commission found the above mentioned four claims were properly characterized
as three distinct claims. First, the Commission found Complainant raised a claim she was paid
less than a male Comparative (claims 1 and 2 combined). The Commission noted this was
both an EPA claim and a Title VII claim based on sex (female). With regard to her sex-based
pay claim, the Commission noted that although the Agency defined Complainant’s claim as
alleging that she was denied equal pay beginning in 2011, the record revealed that Complainant
was only claiming that she was denied equal pay from July 2013 forward. Second, the
Commission found Complainant alleged that she was subjected to discrimination when she was
not promoted to the GS-13 level (claim 3 above). The Commission found that Complainant
was only alleging discrimination based on race, color, sex, and national origin with regard to
her non-promotion claim. Third, the Commission found that Complainant claimed she was
subjected to retaliation when the Agency took away her duties in August 2014 (claim 4 above).

Additionally, the Commission noted Complainant contended that she was discriminated against
when the Agency did not provide her reasonable lactation room accommodations. The
Commission found the Agency’s final decision did not address Complainant’s claim that she
was denied the reasonable accommodation of a lactation room. Thus, we remanded
Complainant’s claim regarding the denial of a reasonable accommodation to the Agency for
further processing.

Upon review, the Commission concluded Complainant established a violation of the EPA. The
Commission further found a violation of Title VII with regard to Complainant’s sex-based pay
claim. The Commission found Complainant failed to establish that she was subjected to
discrimination with regard to her remaining claims.

As relief for the finding of discrimination, the Commission ordered the Agency to pay
Complainant back pay, with interest, for the difference between Complainant’s salary and that
of the Comparative retroactive to July 15, 2013 (which is one year after her promotion to a
GS-12), and other appropriate benefits that Complainant would have been entitled to but for
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the discrimination. The Order noted that back pay shall be calculated from July 15, 2013,
until the date Complainant’s classification duties were removed in August 2014. The Agency
was further directed to pay Complainant an additional amount of liquidated damages (equal to
the back pay award) for its violation of the EPA. The Agency was also instructed to provide
training to the Agency officials who subjected Complainant to unlawful discrimination and to
consider taking disciplinary action against the Agency officials responsible for discriminating
against Complainant.

On July 1, 2016, the Agency submitted the petition for clarification at issue. The Agency
sought clarification as to whether it should pay Complainant back pay at the GS-13, Step 1 or
GS-13, Step 2 level. The Agency explained that the Comparative is a GS-13, Step 2 and has
been with the Agency two years longer than Complainant. The Agency claims that if
Complainant had been promoted, she would have been a GS-13, Step 1, not a GS-13, Step 2.
Thus, the Agency requested clarification as to whether Complainant should be paid at the GS-
13, Step 1 or the GS-13, Step 2 level.

On July 19, 2016, Complainant filed a statement in opposition to the Agency’s July 1, 2016
filing. Complainant rejected the Agency’s contention that her back pay should be calculated at
the GS-13, Step 1 level. Rather, Complainant “request[ed] that the award of back pay be set,
as the Commission has already decided, as the difference between Complainant’s pay and the
pay of the Comparative, in the period set by the Commission in its decision.”

Additionally, Complainant requested that the Commission rule on the matter of compensatory
damages. Complainant argued that the Commission erroneously stated that she did not ask for
compensatory damages. Rather, Complainant stated that she sought all remedies available to
her under law which she claimed would include compensatory damages.

The Agency notes the Comparative was paid at the GS-13, Step 2 level during the relevant
time. Thus, we find Complainant’s back pay should be calculated by paying Complainant the
difference between the salary she received and the salary the Comparative received, which was
at the GS-13, Step 2 level. This is entirely consistent with our prior Order.

Moreover, we find Complainant’s claim that the Commission failed to address her claim for
compensatory damages constitutes a request for reconsideration of the Commission’s previous
decision. Thus, the Commission has docketed Complainant’s July 19, 2016 correspondence
regarding her request for compensatory damages under EEOC Request No. 0520170099.

CONCLUSION

Accordingly, the Commission clarifies the prior Order and the Agency shall comply with the
Order herein

.

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ORDER

The Agency, to the extent that it has not already done so, shall take the following remedial
actions:

1. The Agency is ordered to process Complainant’s claim that she was denied the
reasonable accommodation of a lactation room in accordance with 29 C.F.R.
§1614.108. The Agency shall acknowledge to the Complainant that it has received
the remanded claim within 30 calendar days of the date this decision is issued. The
Agency shall issue to Complainant a copy of the investigative file and also shall
notify Complainant of the appropriate rights within 150 calendar days of the date
this decision is issued, unless the matter is otherwise resolved prior to that time. If
the Complainant requests a final decision without a hearing, the Agency shall issue
a final decision within 60 days of receipt of Complainant’s request. A copy of the
Agency’s letter of acknowledgment to Complainant and a copy of the notice that
transmits the investigative file and notice of rights must be sent to the Compliance
Officer as referenced herein.

2. Within 60 days of the date this decision is issued, the Agency shall pay Complainant
back pay, with interest, for the difference between Complainant’s salary and that of
the Comparative (at the GS-13, Step 2 level) retroactive to July 15, 2013 (which is
one year after her promotion to a GS-12), and other appropriate benefits that
Complainant would have been entitled to but for the discrimination. The back pay
shall be calculated from July 15, 2013, until the date Complainant’s classifications
duties were removed in August 2014. The Agency is further directed to pay
Complainant an additional amount of liquidated damages (equal to the back pay
award) for its violation of the EPA.

3. Within 180 days of the date this decision is issued, the Agency shall provide
training to the Agency officials responsible for the alleged discrimination with
regard to the prohibitions against sex discrimination under the Equal Pay Act.

4. Within 60 days of the date this decision is issued, the Agency shall consider taking
disciplinary action against the Agency officials responsible for discriminating
against Complainant. The Agency shall report its decision to the Commission and
specify what, if any, action was taken. If the Agency decides not to take
disciplinary action, then it shall set forth the reasons for its decision not to impose
discipline.

5. The Agency is further directed to submit a report of compliance, as provided in the
statement herein entitled “Implementation of the Commission's Decision.” The
report shall include supporting documentation verifying that the corrective action
has been implemented.

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POSTING ORDER (G1016)

The Agency is ordered to post at its National Capital Region (NCR) facility in Cleveland,
Ohio, 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 was issued, 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
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.
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
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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 15, 2016
Date