0720170034
06-15-2018
Lois G.,1 Complainant, v. Robert L. Wilkie, Jr., Acting Secretary, Department of Veterans Affairs, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Lois G.,1
Complainant,
v.
Robert L. Wilkie, Jr.,
Acting Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0720170034
Hearing No. 490-2015-00010X
Agency No. 200305982014101361
DECISION
Following its July 27, 2017, final order, the Agency filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) pursuant to 29 C.F.R. � 1614.403(a). On appeal, the Agency accepts the EEOC Administrative Judge's (AJ) finding of discrimination in violation of the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. However, the Agency requests that the Commission affirm its rejection of the relief ordered by the AJ. Specifically, the Agency's Final Order rejected the AJ's decision to award payment of back pay, interest on the back-pay, and the payment of $1,942.76 in pecuniary damages. For the following reasons, the Commission MODIFIES the Agency's final order.
ISSUE PRESENTED
Whether the Agency's final order correctly rejected AJ's decision to award payment of back pay, interest on the back-pay, and the payment of $1,942.76 in pecuniary damages.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Registered Nurse at the Agency's Central Arkansas Veteran's Healthcare Center, John McClellan VA Medical Center (VAMC) in Little Rock, Arkansas. On April 8, 2014, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of age (51) and reprisal for prior protected EEO activity under the Age Discrimination in Employment Act of 1967 when:
1. On March 1 and 22, 2012, Complainant was denied overtime;
2. In May 2013, Complainant reported a co-worker for suspicious behavior, but management officials began an investigation of Complainant for disclosure of employee protected information;
3. On August 11, 17, and 18, 2013, Complainant's tour of duty was changed;
4. On November 18, 2013, during a staff meeting, nursing management accused the senior nurses of not "pulling their weight";
5. On December 16, 2013, Complainant's request for leave in May 2014, was finally approved after a two-month delay from the initial request on October 6, 2013;
6. On December 30, 2013, Complainant received an admonishment;
7. On March 28, 2014, Complainant was among three nurses assigned to work 5D, but was informed that one of them would have to move to 1F, as instructed by the Assistant Nurse Manager (ANM), according to the charge nurse;
8. As of April 1, 2014, Complainant's request for training on the new dialysis machine and to become a "super user" had not been approved;
9. As of May 18, 2014, the Acting Nurse Manager (AM) has failed to respond to Complainant's request of March 16, 2014, to volunteer to be a member of the annual leave committee, and;
10. In April, May and June 2014, Complainant's "preferred tour" assignments were changed to include a tour where she worked one or two days then off one day.
At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an EEOC Administrative Judge. Complainant timely requested a hearing which the AJ held on April 26 and 27, 2017, and thereafter issued a decision on June 29, 2017. The Agency subsequently issued a final order accepting the AJ's finding that Complainant proved that the Agency subjected her to discrimination as alleged, but rejecting the AJ's decision to award payment of back pay, interest on the back pay, and the payment of $1,942.76 in pecuniary damages.
CONTENTIONS ON APPEAL
On appeal, the Agency contends that back pay was not an appropriate remedy because the AJ did not expressly state that the Agency took any "unjustified or unwarranted personnel action." The Agency further avers that interest on back pay is not available to Complainant when the basis for finding of discrimination is age or reprisal, where the underlying claim is based on age. Finally, the Agency contends that compensatory damages are not recoverable on an age based claim under the ADEA or on a reprisal complaint based on prior EEO activity arising under the ADEA.
While Complainant concedes that interest on back-pay is precluded for cases brought under the ADEA, she disagrees with the Agency's contention on her entitlement to back-pay. Specifically, Complainant states that the discriminatory actions, which were acknowledged by the Agency, were in fact unjustified or unwarranted personnel actions for purposes of a back-pay award. Complainant further avers that her inability to work since March 2015 was a direct result of the "discriminatory and harassing actions that she was subjected to at work."
ANALYSIS AND FINDINGS
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. National Labor Relations Board, 340 U.S. 474, 477 (1951) (citation omitted). A finding regarding whether or not 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. 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).
In support of its position, the Agency relies on the Back-Pay Act (see 5 C.F.R. � 550.804(a)), and seems to argue that the AJ was required to expressly reference the words "unjustified or unwarranted personnel action" when finding that Complainant had been subjected to a hostile work environment as a result of the Agency's actions. We find no merit to the Agency's position. The denial of overtime, failure to respond to training requests, and change of duty times, referenced by the AJ in her finding of discrimination, are clearly unjustified and unwarranted personnel actions. Complainant is entitled to back-pay and benefits, as delineated by the AJ's decision.
However, with regard to the award of interest on the back-pay award, we acknowledge that the Agency is correct that the AJ erred in awarding interest and compensatory damages in an ADEA claim. The Commission has consistently recognized that interest on an award of back pay is not available as a remedy under the ADEA. See, e.g., Ryan v. Dep't of Defense, EEOC Petition No. 04960005 (Nov. 7, 1996); Hagerty v. Department of the Navy, EEOC Request No. 0520070213 (Feb. 8, 2007). Further, we note that the Commission has previously determined that compensatory damages are not available in federal sector complaints brought under the ADEA; therefore, this remedy is not available to Complainant here. See, e.g., Enriqueta T. v. Department of the Army, EEOC Appeal No. 0120143049 (Sept. 2, 2016), citing Taylor v. Dep't of the Army, EEOC Request No. 05930633 (Jan. 14, 1994); Patterson v. Dep't of Agriculture, EEOC Request No. 05940079 (Oct. 21, 1994). Finally, the Commission has held that compensatory damages also are not available in retaliation complaints arising solely out of prior EEO activity related to the ADEA. See Sheehy v. National Security Agency, EEOC Request No. 0520100403 (Feb. 27, 2012), citing Falks v. Dep't of the Treasury, EEOC Request No. 05960250 (Sept. 5, 1996). Accordingly, Complainant is not entitled to compensatory damages.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we MODIFY the Agency's Final Order. We REMAND the matter to the Agency to implement the remedies ordered by the AJ, as modified herein.
ORDER (D0617)
The Agency is ordered to take the following remedial action within one hundred and twenty (120) days of the date this decision becomes final:
1. The Agency shall take corrective, curative, and preventive action to ensure that age and reprisal discrimination do not recur including the providing of training to all management officials in the Agency's Central Arkansas Veteran's Healthcare Center, John McClellan VA Medical Center facility in their general duties and obligations under Title VII and the ADEA. The training provided to all management officials shall be a minimum of 8 hours of in-person or interactive training.
2. The Agency shall consider taking appropriate disciplinary action against the responsible management officials. 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).
3. The Agency shall determine the appropriate amount of back-pay, and other benefits due Complainant, pursuant to 29 C.F.R. � 1614.501, calculated from the last day that Complainant could have worked in March 2015, through the date that the Agency issues its final agency 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 Complainant for the undisputed 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."
The Agency is further directed to submit a report of compliance in digital format as provided in the statement entitled "Implementation of the Commission's Decision." The report shall be submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. � 1614.403(g). Further, the report must include supporting documentation of the Agency's calculation of back pay and other benefits due Complainant, including evidence that the corrective action has been implemented.
POSTING ORDER (G0617)
The Agency is ordered to post at its Central Arkansas Veteran's Healthcare Center, John McClellan VA Medical Center (VAMC) in Little Rock, Arkansas 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 as directed in the paragraph entitled "Implementation of the Commission's Decision," within 10 calendar days of the expiration of the posting period. The report must be in digital format, and must be submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. � 1614.403(g).
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0617)
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 in the digital format required by the Commission, and submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. � 1614.403(g). 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 (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 (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
__6/15/18________________
Date
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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