[Redacted], Claudia D, 1 Complainant,v.Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency.Download PDFEqual Employment Opportunity CommissionMay 25, 2021Appeal No. 2020002261 (E.E.O.C. May. 25, 2021) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Claudia D,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency. Request No. 2021001173 Appeal No. 2020002261 Hearing No. 430-2016-00093X Agency No. 200I-0544-2015101764 DECISION ON REQUEST FOR RECONSIDERATION Complainant timely requested that the Equal Employment Opportunity Commission (EEOC or Commission) reconsider its decision in EEOC Appeal No. 2020002261 (Nov. 4, 2020). EEOC regulations provide that the Commission may, in its discretion, grant a request to reconsider any previous Commission decision issued pursuant to 29 C.F.R. § 1614.405(a), where the requesting party demonstrates 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. See 29 C.F.R. § 1614.405(c). Complainant began working for the Dorn Veteran Affairs Medical Center (VAMC) in Columbia, South Carolina on September 23, 2013. Complainant’s position was Staff Physician in the Pain Clinic. Comparative was hired as a Staff Physician in the Pain Clinic at a starting salary of $325,000 on May 3, 2015. 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. 2021001173 2 On April 28, 2015, Complainant filed a formal EEO complaint alleging that the Agency discriminated against her based on sex (female) when: On November 21, 2014, she became aware that a newly selected male physician (Comparative) would start his employment in the same clinic on May 4, 2015, at a starting salary significantly higher than hers. Following a hearing, an EEOC Administrative Judge (AJ) issued a decision finding discrimination. Specifically, the AJ found Complainant received a lower salary than Comparative, a male doctor, although the two performed substantially equal work in terms of skills, effort, and responsibility under similar working conditions. The AJ determined that Complainant failed to meet its burden of proof to show that the pay disparity was based on a factor other than sex. Thus, the AJ found in Complainant’s favor on the EPA claim. Moreover, the AJ found Complainant also prevailed on her Title VII claim. In his decision, the AJ noted that in January 2018, Complainant received an offer of the same position at the Agency’s VAMC with a salary of $280,000. The AJ noted that in May 2018, Complainant left the Dorn facility for the Atlanta VA facility because of the salary disparity. The AJ ordered the Agency to take various actions. Specifically, the Agency was ordered to adjust Complainant’s salary to $325,000, retroactive to May 3, 2015, at the appropriate grade and step level. The Agency was also ordered to pay Complainant under Table 3 of the currently applicable “Final Approved Pay Ranges for Physicians and Dentists.” The Agency was ordered to provide back pay2, with interest, for the difference between her salary and the $325,000 salary she would have received as of May 3, 2015. The Agency was ordered to calculate back pay and benefits, including the difference in the value of step increases, cost of living increases, bonuses, Agency contributions to 401K and pension plan value that she would have received had her salary been $325,000 as of May 3, 2015, pursuant to 29 C.F.R. § 1614.501. Complainant was ordered to cooperate with the Agency’s efforts to compute the amount of back pay and benefits due and to provide all relevant information requested by the Agency. Additionally, the Agency was ordered to pay Complainant liquidated damages equal to the amount of back pay calculated by the Agency, with interest; provide a tax offset to Complainant for the year in which she receives payment of back wages; pay Complainant’s attorney’s fees in the amount of $ 61,410; pay Complainant costs in the amount of $1,397.50 for the hearing transcript; pay expenses associated with Witness in the amount of $1,158,77; provide 20 hours of 2 The AJ noted that Complainant filed her EEO complaint on April 28, 2015, before the discriminatory pay began. The discrimination began on May 3, 2015, when Comparative began working at the Agency. Thus, the AJ noted the EPA’s provision allowing recovery of back pay from two years prior to the complaint (three years if the Agency’s action is willful) is inapplicable in this case. 2021001173 3 training for relevant management officials to include at a minimum, Management Official 1, Management Official 2, Management Official 3, and Management Official 4 regarding their responsibilities with respect to eliminating discrimination in the federal workplace and emphasizing the Agency’s obligation under the EPA; and post a Notice at the Dorn VAMC informing employees of the finding of discrimination under the EPA for a period of 60 days. Further, the AJ noted that while compensatory damages are available under Title VII they are not applicable in this case. The AJ noted that a Complainant cannot receive liquidated damages under the EPA and compensatory damages under Title VII for the same injury, as that would be “double recovery.” The AJ denied Complainant’s request for compensatory damages under Title VII because they would not exceed the substantial amount of liquidated damages she would receive pursuant to the AJ’s Order. On September 3, 2019,the Agency issued a final order. The Agency’s final order fully implemented the AJ’s decision. The final order noted the Agency must consider taking disciplinary actions against the individuals responsible for the discrimination in this case, identified as Manager 1, Manager 2, Manager 3, and Manager 4. The final order noted that the Office of Resolution Management (ORM) would provide follow-up with the Agency officials responsible for taking disciplinary action in this case. The final order specified, “[i]n the event that no disciplinary action is taken, management must provide ORM with a written explanation for this decision.” The final order afforded Complainant appeal rights to the Commission. Complainant did not file an appeal from the Agency’s final order. On November 19, 2019, Complainant sent a letter of noncompliance to the Agency claiming it failed to implement the relief ordered within 60 days as required. Complainant noted receipt of $63,966.27 which she stated appeared to be the combined total of attorney’s fees ($61,410) and costs ($1,397.50 for the hearing transcript plus $1,158.77 for witness fees). However, Complainant stated the following items were unresolved: (1) adjusting Complainant’s salary to $325,000; (2) payment of back pay with interest and benefits from May 3, 2015 through the time her salary is increased; (3) payment of liquidated damages equal to the back pay award, with interest; (4) providing written determinations to Complainant and her attorney advising the amount of back pay and other benefits and how management reached its determinations regarding these matters; and (5) providing a tax offset payment for the year in which Complainant receives the payment of back pay. Further, Complainant stated she was unaware whether any EEO training or disciplinary action has been implemented. On January 17, 2020, Complainant filed the subject appeal with the Commission claiming the Agency has not fully complied with the relief ordered. Complainant acknowledged receipt of payment equivalent to the ordered attorney’s fees and costs. In the Commission’s initial decision, the Commission found that the Agency paid the requisite attorney’s fees and costs. Additionally, the Commission found that the Agency has shown that it complied with the ordered posting requirement. 2021001173 4 However, the Commission found that the record was inadequately developed for the Commission to determine whether the Agency had fully complied with the remaining items of relief contained in the EEOC AJ’s decision. EEOC Appeal No. 2020002261 (Nov. 4, 2020). The initial decision noted that because the Agency failed to show compliance with the Agency’s decision, and included an order for attorney’s fees for work performed by Complainant’s attorney in filing the appeal. Thus, our initial decision vacated the Agency’s final decision finding that it was in compliance with its final order and remanded the matter to the Agency. Complainant, through her attorney, filed the instant request for reconsideration. Complainant requests that EEOC now order the Agency to reimburse her for the costs of professional accounting and auditing services to be incurred in reviewing and auditing the relief paid by the Agency in the instant matter.3 We find that the request for payment for professional accounting and auditing services is outside the scope of the AJ’s decision and the Agency’s final order. If Complainant believed that she should have been awarded these costs, she should have appealed the Agency’s final order. However, as set forth above, she did not file an appeal from the Agency’s final order. After reviewing the previous decision and the entire record, the Commission finds that the request fails to meet the criteria of 29 C.F.R. § 1614.405(c), and it is the decision of the Commission to deny the request. The decision in EEOC Appeal No. 2020002261 remains the Commission's decision. There is no further right of administrative appeal on the decision of the Commission on this request. ORDER To the extent it has not already done so, the Agency shall take the following actions: 1. Within 60 days of the date this decision is issued, the Agency shall provide Complainant a full explanation of its back pay calculations, all employment benefits, and interest. The Agency shall pay Complainant back pay and benefits due, plus interest. 2. Within 60 days of the date this decision is issued, the Agency shall pay Complainant liquidated damages equal to the back pay calculated in paragraph 1, with interest. 3. Within 90 days of the date this decision is issued, the Agency shall provide a tax offset payment to Complainant for the year in which she receives the payment of back pay. Complainant must first (at the appropriate time) demonstrate the extra tax liability she incurred as a result of receiving the lump sum award for back pay. 3 Complainant asserts that she agrees with the other corrective actions set forth in OFO’s initial decision. EEOC Appeal No. 2020002261. 2021001173 5 4. Within 90 days of the date this decision is issued, the Agency shall provide a minimum of 20 hours of training for the relevant management officials, regarding their responsibilities with respect to eliminating discrimination in the federal workplace. The training must emphasize the Agency’s obligations under the Equal Pay Act. In this case, the relevant management officials include, at a minimum, Manager 1, Manager 2, Manager 3, and Manager 4, each of whom were involved in the Agency's decisions not to increase Complainant's pay. If any of the responsible management officials have left the Agency’s employment, then the Agency shall furnish documentation of their departure date. 5. Within 60 days of the date this decision is issued, the Agency shall consider taking disciplinary action against Manager 1, Manager 2, Manager 3, and Manager 4. 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 employment, then the Agency shall furnish documentation of their departure date(s). ATTORNEY'S FEES (H1019)4 If Complainant has been represented by an attorney (as defined by 29 C.F.R. §1614.501(e)(1)(iii)), she/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 receipt of this decision. 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 Complainant and his/her representative. 4 We order the Agency to pay Attorney’s fees related to legal work for EEOC Appeal No. 2020002261. However, we do not order the Agency to pay Attorney’s fees for work performed regarding the instant request for reconsideration because Complainant is not a prevailing party in this matter. 2021001173 6 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. 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. 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. 2021001173 7 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 May 25, 2021 Date Copy with citationCopy as parenthetical citation