Joseph B.,1 Petitioner,v.Robert Wilkie, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

Jan 28, 2020

2019000989 (E.E.O.C. Jan. 28, 2020)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Joseph B.,1 Petitioner, v. Robert Wilkie, Secretary, Department of Veterans Affairs, Agency. Petition No. 2019000989 Appeal No. 0120180746 Agency No. 200P-0648-2014102633 DECISION ON A PETITION FOR ENFORCEMENT On November 27, 2018, the Equal Employment Opportunity Commission (EEOC or Commission) docketed a petition for enforcement to examine the enforcement of an Order set forth in EEOC Appeal No. 0120180746 (August 14, 2018). The Commission accepts this petition for enforcement pursuant to 29 C.F.R. § 1614.503. Petitioner alleges that the Agency failed to comply with the Commission’s order in EEOC Appeal No. 0120180746 issued on August 14, 2018. BACKGROUND During the relevant time, Petitioner worked as a Chief of Plastic Surgery at the Agency’s VA Medical Center in Portland, Oregon. In May 2014, Petitioner filed a formal complaint alleging that the Agency subjected him to a hostile work environment and reprisal for prior protected EEO activity in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. Following an investigation, Petitioner requested a hearing before an EEOC Administrative Judge (AJ). The AJ issued a summary judgment decision in Petitioner’s favor. Two days of hearing were held regarding damages. 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. 2019000989 2 On February 18, 2016, the AJ issued a decision on damages and awarded remedies that included back pay, front pay, and out-of-pocket costs. The Agency issued a final order “accepting the [AJ’s] decision in its entirety. . . .” However, while the Agency restated the remedies ordered by the AJ, the Agency also made some modifications, including the requirement that front pay was contingent upon Petitioner’s resignation. According to Petitioner, the Agency timely paid compensatory damages and attorney’s fees and costs. Petitioner was also placed in a compliant non-duty front pay status. For approximately fifteen months, Petitioner received his salary and benefits from the Agency. However, on August 5, 2017, the Agency ceased paying the ordered relief. Petitioner filed an appeal with the Commission claiming the Agency failed to comply with its final order. In our prior decision, the Commission first observed that our review was limited to the implementation and enforcement of the AJ’s order, as the Agency chose to “fully implement” the AJ’s decisions on liability and relief. See Complainant v. Dep’t of Veterans Affairs, EEOC Appeal No. 0120180746 (August 14, 2018). Because the Agency did not appeal the decisions, the Agency’s efforts to modify the AJ’s orders were improper. See id. Regarding back pay, the parties disputed the start date for such calculations. The Commission determined that the appropriate start date was January 2010, “the date the last pay panel should have been conducted,” as ordered by the AJ. See id. Petitioner acknowledged, in his February 2018 reply, that the Agency “suddenly paid the pay panel raise back to 2010.” See id. Because of Petitioner’s acceptance of the Agency’s recent payment and calculations, the back pay matter was considered resolved. See id. Regarding front pay, however, the Commission found that the Agency erred in requiring Petitioner to resign and in attempting to fulfill its front pay obligation with a lump sum. See id. Instead, the AJ’s order required the Agency to maintain Petitioner in some type of non-duty, front pay status until Petitioner reaches age 65 and retires. The Commission also noted that “[w]hile the Commission shall not dictate an administrative method to achieve compliance with the AJ’s order, such mechanisms were available and utilized by the Agency during its initial period of compliance.” See id. Regarding the back pay for call coverage, while the Agency initially provided a lump sum payment to Petitioner’s attorney’s trust account, it later objected and initiated a collection action. See id. Petitioner’s attorney objected, but returned the funds. See id. The Commission was not persuaded by the Agency’s assertion that payment of “call coverage” is purportedly prohibited by federal statute and Agency policy. The Agency was ordered to pay Petitioner call coverage in the amount of $39,838, with interest. See id. Specifically, in relevant part, the Agency was ordered: Within forty-five (45) days of the date this decision is issued: 2019000989 3 (1) The Agency shall retract any termination/resignation of Complainant’s employment and restore Complainant to a non-duty front pay status as previously conducted during the fifteen months following the AJ’s February 18, 2016 decision, in compliance with the AJ’s order to provide “front pay until he reaches the age of 65, which is the age he had anticipated retiring. Complainant shall continue to receive full benefits in front pay status, including health insurance,” as clarified in the instant appeal. In the alternative, the parties may consider a voluntary agreement to accept a lump sum payment in lieu of continued payments until Complainant reaches the age of sixty-five. The award of front pay is not subject to mitigation. (2) To the extent it has not already done so, the Agency is ordered to pay Complainant call coverage in the (gross pay) amount of $39,838, with interest. (3) The Agency shall provide documentation to this Commission, on an annual basis, regarding its compliance with its obligations under provision (1). If the parties agree to a lump sum payment of front pay, compliance shall cease upon evidence that such payment has been completed. Neither party filed a request for reconsideration on the Commission’s decision in Appeal No. 0120180746. The matter was assigned to a Compliance Officer and docketed as Compliance No. 0620180718 on August 17, 2018. Approximately two months after the issuance of our decision in Appeal No. 0120180746, Petitioner petitioned the Commission alleging that the Agency “has not provided any relief to date” and instead submitted an inaccurate compliance report “as if [it] has successfully provided all relief.” Specifically, Petitioner asserts that he has not received back pay since his termination, front back, call coverage back pay, or benefits. A call to his health insurance provider revealed that the health insurance provider has no documentation indicating Petitioner is a covered individual. Consequently, Petitioner continues to pay for Temporary Continuation of Coverage (TCC), for which he seeks reimbursement from the Agency. When Petitioner’s counsel contacted the Agency’s attorney on October 5, 2018, requesting documentation regarding compliance, the Agency simply referred him to the September 28, 2018 report submitted to the Commission. Petitioner argues that the Agency has submitted numerous SF-50 forms in an effort to decrease his front pay and back pay. Finally, Petitioner states that he recently received a check for $10,847.00 without any explanation. In its response, dated November 7, 2018, the Agency essentially contends that it has submitted the requisite “remedy tickets” to Defense Finance and Accounting Services (DFAS) to effectuate the Commission’s order. The Agency argues that, by taking such action, it is in compliance. The Agency asserts that it is simply waiting for DFAS to complete the processing, which is outside of Agency control. According to the Agency, Petitioner’s petition is premature. As noted above, on November 27, 2018, the Commission docketed the instant petition. 2019000989 4 ANALYSIS AND FINDINGS Since the docketing of this petition, the Agency has submitted approximately four compliance reports.2 Nonetheless, as recently as August 29, 2019, Petitioner maintains that the Agency has not complied with the Commission’s order issued more than one year ago. Rather, Petitioner asserts that the Agency “continues to argue and reduce damages instead of provide what the Commission ordered.” Since the Commission’s decision, Petitioner states he has received “random payments of random accounts that have all been taxed and subject to debt collection for debts which the [A]gency contrived.” The Agency has responded to requests for explanations and documentation, by simply stating it is a “complicated and time-consuming endeavor” because it does not control DFAS. According to the Agency, the process to achieve compliance is “complex, rare, and complicated.” Although aspects of the Agency’s assertion may be true, almost one year and a half after it was ordered to take action, we are dismayed to find the Agency still has failed to do so. In an effort to provide clarity, we shall examine each portion of our previous order, and the matters that stem from each, individually. This shall include repayment of call coverage, front pay, and benefits. Call Coverage The Agency was ordered to pay Petitioner call coverage in the (gross pay) amount of $39,838, with interest. In the Agency’s November 2018 response to the instant petition, it reiterates its prior contention that payment for “call coverage” cannot be made though DFAS. According to the Agency, it attempted to make the payment through DFAS by temporarily increasing Petitioner’s pay, for August 20, 2017 through August 19, 2018, by the amount of call coverage owed ($39,838.00), noting that the system would automatically provide interest for retroactive payments. It contends that such efforts were “rejected” by DFAS, and the Agency is trying to execute the payment through Defense Civilian Pay System (DCPS). It notes that the process could take sixty business days. Approximately nine months later, in his August 29, 2019 correspondence with the Commission, Petitioner maintains that he still has not been paid call coverage back pay, with interest. Even now, months later, the Agency has not shown that it has complied with our order and provided call coverage to Petitioner. Particularly in light of the length of time that has passed, the Agency’s efforts to avoid responsibility by citing delays by DFAS are not convincing. The Agency is not in compliance with our simple and clear order to submit payment to Petitioner in the amount of $39,838.00, plus interest, for call coverage back pay. 2 The first three were submitted between September and October 2018 and the fourth, most recently, on July 31, 2019. 2019000989 5 Front Pay In our prior decision the Agency was ordered to “. . . restore Complainant to non-duty front pay status as previously conducted during the fifteen months following the AJ’s February 18, 2016 decision, in compliance with the AJ’s order to provide ‘front pay until he reaches the age of 65, which is the age he had anticipated retiring. Complainant shall continue to receive full benefits in front pay status, including health insurance . . . ” (emphasis added). Petitioner contends that the Agency has not resumed front pay and has improperly tried to reduce the amount of front pay to a fixed rate of $305,000, paying him less than what it had paid as of August 5, 2017. Instead, Petitioner asserts that the award of front pay with “full benefits” should include the “proper salary and benefit adjustments that had accrued and been paid in the normal course of [his] employment both before and after entering his non-duty front pay status.” In response, the Agency argues that the AJ “unequivocally stated front pay was capped at $305,000.” Acknowledging the language of the AJ’s February 18, 2016 order, as set forth above, which does not make reference to a limit, the Agency contends that it sent the AJ an email weeks later asking whether she intended the “new pay table to be used in setting Complainant’s pay as of March 2016, going forward?” In a March 9, 2016 reply, the AJ explained that “front pay should continue at that rate of pay ($305,000). I did not order that front pay be adjusted for future pay panel increases. Additionally, the Agency argues that its earlier payments (at the rate which included adjustments), made “while attempting to negotiate a . . . settlement,” should not prohibit the imposition of a cap now. We find that the Agency is, yet again, striving to challenge and modify a Commission order outside of the process established for doing so. In our prior decision, the Agency did not appeal the AJ’s decision, but nonetheless modified the AJ’s order to include a resignation prerequisite to the award of front pay. See Complainant v. Dep’t of Veterans Affairs, EEOC Appeal No. 0120180746 (August 14, 2018). We noted that the parties were bound by the AJ’s order, not that of the Agency. See id. Similarly, in the instant front pay dispute, our order in EEOC Appeal No. 0120180746 requires the Agency to “restore Complainant to non-duty front pay status as previously conducted during the fifteen months following the AJ’s February 18, 2016 decision”3. Further, the order states “Complainant shall continue to receive full benefits in front pay status”. The Commission construes “benefits” broadly to include inter alia, annual leave, sick leave, health insurance, premium pay, overtime, and retirement contributions. Vereb v. Dep't of Justice, EEOC Petition No. 04980008 (Feb. 26, 1999). Therefore, we are not persuaded by the Agency’s efforts to limit the annual front pay payment to $305,000. 3 According to the Agency’s September 28, 2018 compliance report, Complainant was kept “on the rolls” from May 15, 2016 through August 5, 2017, during which time his salary was subject to a “general increase” to $323,501. The “general increase” appears to be distinct from the “pay panel increase” at issue in back pay determinations. 2019000989 6 It is required to correct any payments made at this inappropriate reduced amount, as well as continue to provide annual payments at the correct amount. Healthcare In its November 7, 2018 response to the instant petition, the Agency maintains that not only has it complied with our order by submitting a Remedy Ticket to DFAS to reinstate Petitioner’s FEHB and refund premiums, but it has taken “additional steps” to expedite its initial request. According to the Agency, on October 11, 2018, it contacted Blue Cross Blue Shield (BCBS) and requested that it void the previously submitted cancellation form and reinstate his FEHB coverage with BCBS. It also submitted a request with the National Finance Center/Direct Premium Remittance System to void the TCC coverage retroactively to September 6, 2017 and refund Petitioner the TCC premiums paid. Despite these actions, the Agency has not shown that these actions were completed. In his January 2019 correspondence with the Commission, Petitioner continued to request reinstatement of his FEHB. Thereafter, he submitted a copy of an April 11, 2019 “Notice of Intent to Disenroll” from BCBS explaining that while their records indicate that he is currently enrolled in the Health Benefit Plan through the Agency, “the information provided by this agency does not show you as being enrolled in our Plan.” We note that Petitioner’s more recent June 2019 brief does not reference FEHB, which is perhaps an indication, but not evidence, that reinstatement has occurred. In its July 2019 “compliance report,” comprised of a two-page statement and a document entitled “In Lieu of Dep’t of Defense Civilian Leave and Earning Statement”, the Agency simply declares that the report (and the three previously submitted reports) “show the Agency has fully complied with the Order”, as it does not control DFAS and has been waiting for it to process multiple remedy tickets. The Commission disagrees. While the attached document, for pay period ending July 6, 2019, appears to show FEHB payments paid by the Agency, we do not find this document to be dispositive. Therefore, we conclude the Agency has not provided sufficient documentation to establish it has complied with reinstating Petitioner’s FEHB and reimbursed the TCC costs incurred by Petitioner during the relevant time. Leave Petitioner asserts that his annual leave is not being restored or management properly. Specifically, Petitioner states he is entitled to annual leave of 101 regular days and 33 “frozen”4 days, his leave balance at the time of his termination. 4 In approximately 2007, the Agency reduced a physician’s carryover balance to 86 days but allowed physicians to “freeze” and retain the excess leave until paid out at their separation. 2019000989 7 According to the Agency, Petitioner was paid $154,996.665 for 143 days. As it explains in its October 26, 2018 compliance report, the Agency is “reversing” the payment “in order to then credit this leave back” to Petitioner. Petitioner contends that the Agency seeks to restore only 101 regular days. Petitioner argues that, instead of forfeiting the 33 frozen days, the Agency should also restore them as frozen annual leave. Additionally, Petitioner contends he has been prevented from participating in the leave donation program, cancelling a donation he made to a colleague undergoing cancer treatment in 2018. According to the Agency’s October 26, 2018 compliance report, Petitioner would be receiving debt letters related not only to the “reversal of leave,” but also with respect to its adjustments for his front pay (i.e. recouping the amount over $305,000 paid as front pay). This highlights the two glaring problems in this matter: the Agency’s inappropriate efforts to modify our order (as discussed above) and the Agency’s utter lack of explanation and documentation regarding its compliance with our August 14, 2018. Inadequacy of Documentation A review of the compliance reports submitted to the Commission, between September 2018 and July 2019, reflect brief, self-serving statements without supportive documentation. For example, in the September 28, 2018 report, the Agency proclaims it is in complete compliance with our Order, as it is merely waiting for DFAS to process its remedy tickets. In support, it attaches copies of more than half a dozen SF-50s, the majority of which were executed in order to, improperly, reduce Petitioner’s front pay to a cap of $305,000. In another report, the Agency simply provides a three-page statement explaining it has sent two faxes in efforts to reinstate Petitioner’s FEHB and reimburse his TCC costs. Most recently, the Agency submits a document entitled “In Lieu of July 2019 Leave and Earnings Statement” (emphasis added), which it asserts illustrates its full compliance. We disagree. The authenticity of the document, both due to its appearance and title, seems questionable. Further, while it indicates FEHB payments, it is unclear when Petitioner’s health care was reinstated. The document does not show reimbursement of TCC, appropriate annual leave balances, payment of call coverage back pay, nor the correct salary amount for front pay. The Agency has not merley failed to show the Commission it has complied with our Order. Instead, it also has not provided any explanation to Petitioner when it has taken action. The Agency has not submitted any calculations, copies of checks or deposits made, nor other evidence of completed personnel actions to either Complainant or the Commission. According to Petitioner, he “cannot determine how much the agency owes him (or what the Agency may claim it has paid him) because there is absolutely no documentation of any payments. 5 Agency has sought verification from Complainant that he received monies in August 2017, as cash-out for unused leave. Complainant argues that the Agency has never provided documentation explaining what various payments were for, including a payment from August 2017. Petitioner thought the payment was for his retroactive pay panel back pay. If that is not the case, then Complainant believes he is still owed pay panel back pay. 2019000989 8 Random checks or payments at random times for random amounts along with debt letter and ongoing collection activity. It is pure chaos (by Agency design).” The record reflects Petitioner’s repeated requests for a description, which are met by the Agency’s constant refrain: completion of required actions is out of its control, an accounting is complex, and both take time. Too much time has passed and too many excuses proffered. Quite plainly, the Agency has not taken the actions required by our August 2018 order. Accordingly, we GRANT the instant Petition and find that the Agency has not complied with the Commission’s orders. As such, the Agency shall take appropriate remedial action6 in accordance with this decision and the ORDER below. Further, we caution the Agency that the EEOC’s Office of Federal Operations (OFO) shall take all necessary action to ascertain whether the Agency is properly implementing the decision of the Commission. If the Agency is found not to be in compliance with the decision, efforts shall be undertaken to obtain compliance. 29 C.F.R § 1614.503(b). If the Commission cannot obtain satisfactory evidence of compliance with its orders in EEOC Appeal No. 0720150032, the OFO Director may submit appropriate findings and recommendations for enforcement to the Commission, or may refer the matter to the Office of Special Counsel for enforcement action. 29 C.F.R § 1614.503(d) - (f). ORDER Within forty-five (45) days of the date this decision is issued: (1) The Agency shall retract any termination/resignation of Complainant’s employment and restore Complainant to non-duty front pay status as previously conducted during the fifteen months following the AJ’s February 18, 2016 6 Petitioner is entitled to an award of reasonable attorney's fees and costs having prevailed on his petition for enforcement. A prevailing party is one who succeeds on any significant issue, and achieves some of the benefit sought in bringing the action. Berenice R. v. Administrative Office of the U.S. Courts, Petition No. 0420160011 (Nov. 30, 2017); Davis v. Dep't of Transportation, EEOC Request No. 05970101 (Feb. 4, 1999) (citing Hensley v. Eckerhart, 461 U.S. 427, 433 (1983)); Terrell v. Dep't of Health and Human Serv., EEOC Petition No. 04950018 (Nov. 7, 1996) (petitioner who successfully obtained compliance with a Commission order through a petition for enforcement was entitled to be reimbursed for attorney's fees and costs incurred in processing the petition); see also Teal v. U.S. Postal Serv., EEOC Petition No. 04990026 (Aug. 7, 2000) (ordering the agency to pay attorney's fees for a petition for enforcement and to conduct a supplemental investigation when it was unclear as to whether the agency, among other things, complied with the Commission's order to properly award back pay). The Agency will therefore be ordered to pay reasonable attorney's fees and costs for the work performed in connection with this petition for enforcement. 2019000989 9 decision, in compliance with the AJ’s order to provide “front pay until he reaches the age of 65, which is the age he had anticipated retiring. Complainant shall continue to receive full benefits in front pay status, including health insurance,” as clarified in the instant appeal. In the alternative, the parties may consider a voluntary agreement to accept a lump sum payment in lieu of continued payments until Complainant reaches the age of sixty-five. The award of front pay is not subject to mitigation. (2) To the extent it has not already done so, the Agency is ordered to pay Complainant call coverage in the (gross pay) amount of $39,838, with interest. (3) The Agency shall provide documentation to this Commission, on an annual basis, regarding its compliance with its obligations under provision (1). If the parties agree to a lump sum payment of front pay, compliance shall cease upon evidence that such payment has been completed. See the provision below entitled “Implementation of the Commission Decision” ATTORNEY'S FEES (H1016) If Petitioner has been represented by an attorney (as defined by 29 C.F.R. § 1614.501(e)(1)(iii)), he is entitled to an award of reasonable attorney's fees incurred in the processing of the complaint. 29 C.F.R. § 1614.501(e). The award of attorney's fees shall be paid by the Agency. The attorney shall submit a verified statement of fees to the Agency -- not to the Equal Employment Opportunity Commission, Office of Federal Operations -- within thirty (30) calendar days of the date this decision was issued. The Agency shall then process the claim for attorney's fees in accordance with 29 C.F.R. § 1614.501. IMPLEMENTATION OF THE COMMISSION’S DECISION (K0719) 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 Petitioner and his/her representative. 2019000989 10 If the Agency does not comply with the Commission’s order, the Petitioner may petition the Commission for enforcement of the order. 29 C.F.R. § 1614.503(a). The Petitioner 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 Petitioner 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 Petitioner 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. Failure by an agency to either file a compliance report or implement any of the orders set forth in this decision, without good cause shown, may result in the referral of this matter to the Office of Special Counsel pursuant to 29 C.F.R. § 1614.503(f) for enforcement by that agency. PETITIONER’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 (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. 2019000989 11 Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Petitioner’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 January 28, 2020 Date