[Redacted], Anastacia D., 1 Petitioner,v.Denis R. McDonough, Secretary, Department of Veterans Affairs (Veterans Health Administration), Agency.

Equal Employment Opportunity Commission

Feb 16, 2021

Appeal No. 0120170097 (E.E.O.C. Feb. 16, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Anastacia D.,1 Petitioner, v. Denis R. McDonough, Secretary, Department of Veterans Affairs (Veterans Health Administration), Agency. Petition No. 2020004974 Appeal No. 0120170097 Hearing Nos. 480-2011-00524X; 480-2012-00098X; 480-2014-00142X; 480-2014-00476X Agency Nos. 200P-0691-2010104781; 200P-0691-2011102689; 200P-0691-2013102048 200P-0691-2014199923 DECISION ON A PETITION FOR ENFORCEMENT On September 4, 2020, the Equal Employment Opportunity Commission (EEOC or Commission) docketed a petition for enforcement to examine the enforcement of an Order set forth in Anastacia D. v. Dep’t of Veterans Affairs, EEOC Appeal No. 0120170097 (Oct. 23, 2018). The Commission accepts this petition for enforcement pursuant to 29 C.F.R. § 1614.503. Petitioner alleged that the Agency failed to fully comply with several elements of the Commission’s order for relief therein. BACKGROUND At the time of events giving rise to this complaint, Petitioner worked as a Program Support Assistant (PSA), GS-0303-05, at the Agency’s Geriatrics Care facility in Los Angeles, California. Between December 2010 and October 2013, Petitioner filed the above-referenced complaints in which she alleged that the Agency discriminated against her on the bases of age, race, and reprisal in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e 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. 2020004974 2 et seq. and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. The Agency investigated the complaints and on June 20, 2016, issued a final decision in Petitioner’s favor. Petitioner subsequently filed an appeal in which she contended that the Agency failed to fully comply with its own order for relief. In its decision on Appeal No. 0120170097, the Commission found that the Agency had not provided Petitioner with full relief and ordered the Agency to complete the following: 1. Promote Petitioner to the position of Program Support Assistant (PSA), GS-06 Step 10 retroactive from November 1, 2008 to August 8, 2010. 2. Promote Petitioner to the position of PSA, GS-07, Step 10, retroactive from August 8, 2010 to the present. 3. Award Petitioner back pay less interim earnings, interest, retroactive tax-deferred contributions to Petitioner’s Thrift Savings Plan (TSP) account together with any earnings that would have accrued during the relevant period, and all benefits and training that she would have otherwise earned or received but for the prohibited discrimination. 4. Pay petitioner for time marked as absent without leave from August 16, 2013, through August 26, 2013 totaling 5.5 days. 5. Restore to Petitioner 519.20 hours of leave taken as a result of the discriminatory action and/or payment for any leave that takes Petitioner’s cumulative annual leave to over 240 hours. 6. Award Petitioner prejudgment interest on lost back-pay and benefits at the annual percentage rate or rates established by the Secretary of the Treasury. The matter was assigned to a Compliance Officer and docketed as Compliance No. 2019000434 on October 24, 2018. On January 30, 2020, the Agency submitted its report of compliance on the four complaints referenced above. On March 11, 2020, however, Petitioner, through Counsel, submitted a letter in which she contended that the Agency had not fully complied with elements (2), (3), and (4) of our order for relief in Appeal No. 0120170097. With respect to element (2), Petitioner contended that she was entitled to the higher grade of GS-07, Step 10 during 2016 but she didn’t receive the promotion until January 2017 or prejudgment interest thereon. Concerning element (3), Petitioner argued that the Agency failed to compensate her for applicable benefits that accompany back pay such as FEGLI life insurance, FEGLI Optional, OASDI (social security), and FEHB Medical Insurance. Regarding element (4), Petitioner stated that although she was paid for the time marked as absent without leave on June 8, 2019, she was compensated at the rate of a GS- 05, Step 10 rather than a GS-07, Step 10. 2020004974 3 On September 4, 2020, the Compliance Officer (CO) recommended that a petition for enforcement be docketed. The CO noted that the Agency submitted a Standard Form (SF) 50 stating that Petitioner had been promoted from GS-06, Step 10 to GS-07, Step 10, effective August 26, 2016. The CO further noted that the Agency submitted back pay breakdown which included details regarding the gross back pay amount and all of the deductions for retirement, income tax, insurance, and investments. In addition, the CO noted that Petitioner was paid the back pay and interest on December 26, 2016, and that the Agency submitted documentation showing that the Petitioner was paid $1,184.48 on June 8, 2019 for 44 hours of previously charged leave without pay. The CO had determined that while the Agency had substantially complied with the Commission’s order in Appeal No. Appeal No. 0120170097, questions remained as to how the back pay was calculated and the total amount of leave without pay had been restored. ANALYSIS AND FINDINGS A backpay award must include all forms of compensation and must reflect fluctuations in working time, overtime rates, penalty overtime, Sunday premium and night work, changing rate of pay, transfers, promotions, and privileges of employment to which Complainant would have been entitled but for the discrimination. Potter v. Dep’t of Agric., EEOC Appeal No. 0720120029 (Sept. 10, 2013), req. for reconsid. den’d EEOC Request No. 0520140083 (May 9, 2014). It must also include subsequent career-ladder promotions that a complainant likely would have received if she or he had been selected for the position in the first instance. See Clay W. v. Dep't of the Army, EEOC Appeal No. 0120161031 (June 21, 2018). In addition, it must include all benefits that otherwise would have accrued absent the discrimination, including, but not limited to, sick or annual leave, health insurance, Thrift Savings Plan and retirement contributions, awards, training, and step increases. Kelly A. v. Dep’t of Veterans Affairs, EEOC Appeal No. 0120171256 (Mar. 19, 2019). And finally, it must include prejudgment interest. Madelaine G. v. Dep’t of State, EEOC Petition No. 2019005970 (Sept. 2, 2020). Element (2): In her noncompliance letter dated March 11, 2020, Petitioner states: [Petitioner] was entitled to the higher pay grade GS-07, Step 10 during the year 2016, for which she did not receive the promotion until January 2017. Based on her salary difference within the position of GS-05, Step 10, subtracted from GS-07, Step 10, the amount totals to $11,197.00, which was not included in the Agency’s calculation, along with its prejudgment interest. In Tabs 2 and 3 of its compliance report dated January 30, 2020, the Agency included several SF- 50 forms documenting the retroactive promotions and pay adjustments: Action Approved on Retroactive to Salary Increase 08/26/2016 - Promotion: GS-6-10 - GS-7-10 08/08/2010 $50,444 to $56,174 08/16/2016 - Pay Adjustment - GS-7-10 01/12/2014 $56,174 to $56,732 08/16/2016 - Pay Adjustment - GS-7-10 01/11/2015 $56,732 to $57,294 08/16/2016 - Pay Adjustment - GS-7-10 01/10/2016 $57,294 to $58,096 2020004974 4 According to these SF-50 forms, in August 2016, Petitioner was promoted to GS-7, Step 10 (retroactive to August 2010). These SF-50s further indicate that Petitioner had received cost-of- living increases at the GS-7, Step 10 level in January 2014, 2015, and 2016. The Agency’s back pay calculations are drawn from Tab 3 of the Agency’s compliance report and are reproduced herein as follows: Year Gross Back Pay 2008 $806.40 2009 $6,204.42 2010 $8,051.20 2011 $10,795.20 2012 $10,795.20 2013 $10,566.84 2014 $10,902.71 2015 $9,399.44 Subtotal $67,521.41 Interest on Back Pay $9,672.05 Current Pay Period Earnings $2,227.20 Total Gross Back Pay $79,420.66 Element (3): In her noncompliance letter dated March 11, 2020, Petitioner states: As for remedial action number 3 *** prejudgment interest was not paid beginning from when it accrued to the date that the decision became final. *** In addition to not awarding prejudgment interest, applicable benefits were not included on lost back-pay, specifically FEGLI life insurance, FEGLI Optional, OASDI (social security), and FEHB Medical Insurance. Tab (3) of the January 30, 2020 compliance report provides the following information pertaining to prejudgment interest and deductions from Petitioner’s gross back pay award: Subtotal Gross Back Pay For years 2008 through 2015 $67,521.41 Interest on Back Pay For years 2008 through 2015 $9,672.05 Current Pay Period Earnings $2,227.20 Total Gross Back Pay $79,420.66 Less: Deductions: Total Deductions $27,574.43 Net Back Pay: $51,846.23 FERS/CSRS $556.66 Medicare $1,009.52 OASDI $3,907.95 Federal Income Tax $17,182.15 State Income Tax $4,544.50 Dental Insurance $21.00 2020004974 5 FEHB $100.18 Vision Insurance $5.95 FEGLI $12.63 TSP $0.00 Roth TSP $0.00 TSP - Loan $45.89 Allotments $63.00 VA Parking / Canteen Card $125.00 The January 30, 2020 compliance report contains no documentation showing actual payment to Petitioner for the entire amount of back pay due, whether it be in the form of a government-issued check or a record of disbursement. We will therefore order the Agency to document that it had actually awarded $51,846.23 in net back pay to Petitioner for the period between November 1, 2008 and December 31, 2015. Petitioner appears to be arguing that in addition to the back pay and benefits she had already received, she is entitled to an additional $11,197.00 plus interest, which represents the back pay and benefits owed for the period between January 1 and August 16, 2016. The time frame for the back pay award addressed in Tab (3) of the January 20, 2020 compliance report spans from November 1, 2008 through December 31, 2015. The SF-50 documenting Complainant’s promotion to GS-7 specifies an approval date of August 16, 2016. This means that the period for which Petitioner is entitled to back pay extends to August 16, 2016. However, the January 30, 2020 compliance report includes no documentation pertaining to Petitioner’s gross back pay corresponding to the period between January 1 and August 16, 2016. We will therefore direct the Agency to award Petitioner $11,197.00 plus interest for all back pay and benefits that accrued between January 1 and August 16, 2016 and provide appropriate documentation, or to explain why Complainant is entitled to a lesser award or to no additional award, together with appropriate supporting documentation of its determination. Element (4): In her noncompliance letter dated March 11, 2020, Petitioner states: Additionally, as for remedial action number 4, [Petitioner] received retroactive pay for time marked as absent without leave on June 8, 2019; however, the pay grade was made at the GS5 Step 10 level when she was entitled to the higher pay grade GS-07, Step 10, along with its prejudgment interest. As the various SF-50 forms listed under Tab (2) of the compliance report indicate, Petitioner was promoted to GS-07 Step 10 retroactive to 2010 and was therefore entitled to leave restoration at the salary corresponding to that grade and step between August 16 and August 26, 2013. A payroll record in Tab (4) of the January 30, 2020 compliance report indicates that during the pay period ending on June 8, 2019, Petitioner was compensated for 44 hours of absence without leave retroactive to the pay period ending August 24, 2013, in the amount of $1,184.48. Emails referencing this payroll record confirm that Petitioner was marked as absent without leave for 5.5 days between August 16 through August 26, 2013. 2020004974 6 Unfortunately, we cannot ascertain from this information whether Complainant was compensated at the GS-5 or GS-7 level. We will therefore order the Agency to award Complainant the difference between GS-5, Step 10 and GS-7, Step 10, or to document that Complainant had been retroactively compensated at the GS-7, Step 10 rate. CONCLUSION Accordingly, we GRANT this petition for enforcement and REMAND this matter to the Agency so that it can take further actions consistent with this decision and the ORDER set forth below. ORDER (D0617) To the extent that it has not already done so, the Agency shall take the following action within 60 calendar days of the date this decision is issued: 1. Provide a copy of a government-issued check, an electronic payroll record, or any other documentation establishing that it had actually awarded Petitioner $51,846.23 in net back pay corresponding to the period between November 1, 2008 and December 31, 2015. The documentation shall establish definitively the date upon which the payment was made to Petitioner. 2. Award Petitioner an additional $11,197.00 plus interest for all back pay and benefits that accrued between January 1 and August 16, 2016 together with appropriate documentation. In the alternative, the Agency may provide an explanation as to why Petitioner is entitled to a lesser award or to no additional award, together with appropriate supporting documentation of its determination. 3. Award Petitioner additional compensation for 44 hours of absence without leave taken between August 16 and 26, 2013 in the amount of the difference between a salary rate corresponding to GS-07 Step 10 and GS-05 Step 10. If Petitioner was compensated for said absence without leave at the rate corresponding to GS-07 Step 10, the Agency shall provide documentation of this fact. The Agency shall determine the appropriate amount of back pay, with interest, and other benefits due the Petitioner, if any, pursuant to 29 C.F.R. § 1614.501, no later than sixty (60) calendar days after the date this decision was issued. The Petitioner 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 Petitioner for the undisputed amount within sixty (60) calendar days of the date the Agency determines the amount it believes to be due. The Petitioner 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." 2020004974 7 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 Petitioner, including evidence that the corrective action has been implemented. ATTORNEY'S FEES (H1016) If Complainant has been represented by an attorney (as defined by 29 C.F.R. § 1614.501(e)(1)(iii)), she 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. 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. 2020004974 8 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. 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 February 16, 2021 Date