Joey B.v.Dep't of Veterans Affairs

Equal Employment Opportunity Commission

Dec 21, 2016

EEOC Appeal No. 0720160023 (E.E.O.C. Dec. 21, 2016)

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

Joey B.,1
Complainant,

v.

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

Appeal No. 0720160023

Hearing No. 470-2014-00097X

Agency No. 200J-0583-2013102172

DECISION

The Commission accepts the Agency’s timely appeal following its August 18, 2016 final order.
On appeal, the Agency requests that the Commission affirm its rejection of part of an Equal
Employment Opportunity Commission Administrative Judge’s (AJ) determination of relief
following a finding of discrimination in violation of Title VII of the Civil Rights Act of 1964
(Title VII), as amended, 42 U.S.C. § 2000e et seq.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Nurse Aid, Escort
II, GS-05, at the Agency’s Richard L. Roudebush VA Medical Center in Indianapolis, Indiana.
On May 11, 2013, Complainant filed a formal complaint alleging that the Agency
discriminated against him and subjected him to a hostile work environment on the bases of race
(African-American) and in reprisal for prior protected EEO activity when:

1. On or about February 1, 2013, Complainant’s supervisor changed his tour of duty
from the evening shift to the day shift;

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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2. In February 2013, S1 asked the Complainant, “Who is going to hire a black man as
a nurse?”

3. Complainant was not paid his overtime pay in a timely manner from January 2013
through March 2013; and

4. On or about March 13, 2013, the Agency terminated his employment during his
probationary period.

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 Equal Employment
Opportunity Commission Administrative Judge (AJ). Complainant timely requested a hearing.
The AJ held a hearing on March 17 and 27, 2015, and issued a decision on July 12, 2016.

In her decision, the AJ found that the evidence showed that the Agency discriminated against
Complainant and subjected him to a hostile work environment on the basis of race, as
evidenced by his supervisor’s racially-charged comment and his supervisor’s failure to timely
process Complainant’s overtime. In addition, the AJ found that the Agency retaliated against
Complainant by terminating him on or about March 13, 2013. The AJ determined that
Complainant failed to show that the change in his tour of duty was based on discrimination or
reprisal. To remedy the discrimination, the AJ ordered the Agency to reinstate Complainant to
the Nurse Aid, Escort II, GS-5 position or another position acceptable to both parties; pay
Complainant back pay and $10,000 in compensatory damages; provide training to the
responsible management officials and all other employees at the facility; and to post a notice.

On August 18, 2016, the Agency issued a final order. In the final order, the Agency accepted
the AJ’s finding that Complainant proved that the Agency subjected him to discrimination,
reprisal, and a hostile work environment. The Agency agreed to implement the AJ’s award of
reinstatement; back pay and benefits; and compensatory damages. The Agency, however, did
not agree to implement the AJ’s order with respect to training. The Agency simultaneously
filed the instant appeal.

CONTENTIONS ON APPEAL

In its appeal, the Agency contends that the AJ’s order for facility-wide EEO training for all
employees was overly broad. The Agency argues that the record did not establish the
existence of widespread discrimination at the facility; rather, the discrimination was isolated to
one supervisor. The Agency noted that the discriminating official in this case was not in a
position of authority or influence in his regular position and was not in a position to set a
leadership tone. Instead, the evidence of record established that the discriminating individual
in the instant case was placed in a position of advantage over Complainant after working
directly with Complainant as Complainant’s peer, and that he used his new position to
discriminate against Complainant. Accordingly, the Agency requests that the Commission
affirm its final order.
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Complainant did not respond to the Agency’s appeal.

STANDARD OF REVIEW

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. Nat’l Labor Relations Bd., 340 U.S. 474, 477 (1951) (citation
omitted). A finding regarding whether 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. See 29 C.F.R.
§ 1614.405(a).

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 for 29 C.F.R. Part 1614 (EEO MD-110), Chap. 9, at
§ VI.B. (Aug. 5, 2015).

ANALYSIS AND FINDINGS

At the outset, the Commission notes that on appeal, neither party challenges the finding of
discrimination, or remedies other than the AJ’s order of facility-wide EEO training. The
Commission has the discretion to review only those issues specifically raised in an appeal.
EEO MD-110 at 9-10. As such, this decision will only address the issue regarding the training
order.

Pursuant to 29 C.F.R. § 1614.501(a)(2), to remedy a finding of discrimination, the
Commission may order the Agency to provide full relief, to include corrective, curative or
preventive actions to ensure that violations of the law similar to those found will not recur.
Based on this regulatory authority, it is well-established that the Commission may properly
order an Agency to provide relevant EEO training to employees as a measure to prevent future
occurrences of discrimination. See Wild v. Dep’t of Def., EEOC Request No. 05A10058
(Mar. 16, 2002). However, the purpose of such training should not be to punish individuals
for past discriminatory conduct, but rather, to educate employees concerning the requirements
of the law in order to avoid future violations. Textor v. Dep’t of Veterans Affairs, Appeal No.
0720060047 (May 15, 2008).

The AJ ordered the Agency to implement appropriate preventive measures to ensure that
similar unlawful discrimination would be unlikely to recur. As part of that order, the AJ
directed the Agency to provide training regarding Title VII to Complainant’s Supervisor, the
Human Resources Specialist, and “all employees at the Richard L. Roudebush VA Medical
Center in Indianapolis, Indiana.” The Commission agrees with the Agency and concludes that
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the AJ’s training remedy is overly broad. There is no evidence in this case of a facility-wide
culture of discrimination. The Commission finds that it is sufficient under the circumstances
present to require eight hours of training to the management officials in Complainant’s chain-
of-command and to the Human Resources Specialist regarding the obligations and
responsibilities under Title VII.

CONCLUSION

Therefore, after a careful review of the record, including arguments and evidence not
specifically discussed in this decision, the Commission AFFIRMS the Agency’s final order and
REMANDS the matter to the Agency to take corrective action in accordance with this decision
and the Order below.

ORDER

Within sixty (60) calendar days of the date this decision is issued, the Agency is ordered to
take the following remedial action to the extent that it has not already done so:

1. Offer Complainant reinstatement to the position of Nurse Aid, Escort II, GS-05, at
the Richard L. Roudebush VA Medical Center in Indianapolis, Indiana, retroactive
to the date of termination, or in the alternative offer to hire Complainant to another
position acceptable to both parties. The Agency shall allow Complainant not less
than fifteen (15) business days to determine whether to accept the offer of
reinstatement.

2. Pay Complainant $10,000 in non-pecuniary compensatory damages.

3. Determine the appropriate amount of back pay, with interest, and other benefits due
Complainant, pursuant to 29 C.F.R. § 1614.501, no later than sixty (60) calendar
days after the date of this decision. 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 the
Complainant for the undisputed amount within sixty (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 the
address referenced in the statement entitled “Implementation of the Commission's
Decision.”

4. The Agency shall pay Complainant for any increased tax burden incurred because
of the back pay award, within sixty (60) calendar days of receipt of Complainant's
documentation proving the increased burden. To obtain payment for the increased
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income tax burden, Complainant shall provide to the Agency detailed
documentation establishing the increased income tax burden no later than sixty (60)
calendar days after receipt of the Agency's documentation on back pay and interest.

5. Provide EEO training to the management officials in Complainant’s chain-of-
command and the Human Resources Specialist at the Richard L. Roudebush VA
Medical Center in Indianapolis, Indiana. Such training shall focus on their
responsibilities and obligations under Title VII.

6. Consider taking appropriate disciplinary action against all responsible management
officials still employed by the Agency. 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 of the responsible
management officials have left the Agency's employ, the Agency shall furnish
documentation of their departure date(s).

7. Post a notice in accordance with the paragraph below.

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 (G0914)

The Agency is ordered to post at its Richard L. Roudebush VA Medical Center in
Indianapolis, Indiana 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 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
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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 (M0416)

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. The requests 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 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).

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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,
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 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 21, 2016
Date