[Redacted], Bart M., 1 Complainant,v.Robert Wilkie, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

Dec 8, 2020

Appeal No. 2020003401 (E.E.O.C. Dec. 8, 2020)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Bart M.,1 Complainant, v. Robert Wilkie, Secretary, Department of Veterans Affairs, Agency. Appeal No. 2020003401 Agency No. 200I-0619-2018103427 DECISION Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s April 9, 2020, final decision concerning his equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq. and the Equal Pay Act of 1963 (EPA), as amended, 29 U.S.C. §206(d) et seq. For the following reasons, the Commission VACATES the Agency’s final decision. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Medical Support Assistant (MSA) in Health Administrative Services in the Agency’s Central Alabama VA Health Care System (CAVHCS) in Tuskegee, Alabama. During the relevant time, Supervisory Medical Support Assistant was Complainant’s first line supervisor (S1). Medical Administration Officer was his second line supervisor (S2). In addition to S1 and S2, Complainant alleged that he was discriminated against by his previous supervisor (PS1), the Acting Human Resources Chief (HRC), and the Acting Program Manager (APM). On June 28, 2018, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of race (Caucasian) and sex (male) when: 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. 2020003401 2 As of April 3, 2018, Complainant continues to perform the duties of a Medical Support Assistant, GS-6, at the Medical Support Assistant, GS-5 grade. 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). When Complainant did not request a hearing within the time frame provided in 29 C.F.R. § 1614.108(f), the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The decision concluded that Complainant failed to prove that the Agency subjected him to discrimination as alleged. ANALYSIS AND FINDINGS As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. § 1614.110(b), the Agency's decision is subject to de novo review by the Commission. 29 C.F.R. § 1614.405(a). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 9, § VI.A. (Aug. 5, 2015) (explaining that the de novo standard of review “requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker,” and that EEOC “review the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, and . . . issue its decision based on the Commission’s own assessment of the record and its interpretation of the law”). Upon review, we find the record in the present case was not fully developed to enable us to reach a determination on the claims alleged. Complainant initially claimed that he had been performing the duties of a GS-6, MSA while employed as a GS-5, MSA. Thereafter, in his September 18, 2018 affidavit he clarified that he had been performing the duties of a GS-6, Program Support Assistant and not a GS-6, MSA while being paid as a GS-5, MSA. Subsequently, in an October 19, 2018 response to an inquiry from the investigator, Complainant stated that he was referring to the position of Patient Services Assistant and not Program Support Assistant. However, we note the affidavits from the responsible management officials and witnesses reveal they were asked about Complainant’s claim that he had been performing the duties of a GS-6, Program Support Assistant while employed as a GS-5, Medical Support Assistant. Additionally, we note that Complainant claimed that he performed the same duties as Comparative 1 (female), who he stated held the same position before he took over but was paid at a higher-grade level. However, we find the record lacking as to the actual duties performed by Comparative 1. We note that Comparative 1 stated that she previously worked as a Patient Services Assistant, GS- 6 and as a Program Support Assistant, GS-6 at the Domiciliary. Comparative 1 stated that in 2010 her “duties as a PSA [included] Scheduling appointments, etc.” It is unclear whether Comparative 1 was referring to her duties as a Program Support Assistant or a Patient Services Assistant. Further, other than the listed duty of scheduling appointments, Comparative 1 does not list any other duties performed as a Patient Services Assistant. Moreover, we note the Agency failed to obtain an affidavit from the first line supervisor of Comparative 1 or any other Agency employee with knowledge of the actual work performed by Comparative 1. 2020003401 3 On remand, the Agency shall gather information on the work performed by Comparative 1 in terms of the skill, effort, and responsibility held for the Patient Services Assistant position. CONCLUSION Accordingly, the Agency’s final decision finding no discrimination is VACATED and the complaint is REMANDED for further processing. ORDER Within 90 days of the date this decision is issued, the Agency shall take the following actions: 1. The Agency shall obtain new affidavits from all of the same responsible management officials and witnesses in the original investigation clarifying that Complainant alleged he was discriminated against when he performed the duties of a Patient Services Assistant, GS-6, at the Medical Support Assistant, GS-5 grade. Thus, the affidavits will then address the correct positions at issue. 2. The Agency shall provide relevant documentation to indicate the actual duties performed by Comparative 1 during the relevant time including the skill, effort, and responsibility held when she occupied the GS-6, Patient Services Assistant position. Specifically, the Agency shall obtain an affidavit from the first line supervisor of Comparative 1 or any other Agency employee with knowledge of the actual work performed by Comparative 1. 3. The Agency shall provide to Complainant a copy of all materials placed into the record pursuant to this Order. 4. The Agency shall issue a new final decision on the merits of Complainant’s complaint. 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 Complainant and his/her representative. 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 2020003401 4 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. 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. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0620) The Commission may, in its discretion, reconsider this appellate decision if the complainant or the agency submits a written request that contains arguments or evidence that 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 for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration. A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within 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). Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx. Alternatively, complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. 2020003401 5 Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together with the 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 (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. COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION-EQUAL PAY ACT (Y0408) You are authorized under section 16(b) of the Fair Labor Standards Act (29 U.S.C. § 216(b)) to file a civil action in a court of competent jurisdiction within two years or, if the violation is willful, three years of the date of the alleged violation of the Equal Pay Act regardless of whether you have pursued any administrative complaint processing. The filing of the 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. 2020003401 6 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 8, 2020 Date