[Redacted], Eliz T., 1 Complainant,v.Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency.Download PDFEqual Employment Opportunity CommissionMay 25, 2021Appeal No. 2021003081 (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 Eliz T.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency. Appeal No. 2021003081 Hearing Nos. 480-2021-00054X & 480-2021-00055X Agency No. 200P-0691-2015104335 & 200P-0691-2016105330 DECISION The Agency filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission) on February 3, 2021, objecting to the decision of an EEOC Administrative Judge (AJ) which concerned Complainant’s claims of discrimination alleging violations of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. At the time of events giving rise to this complaint, Complainant worked as a Staff Physician at the Agency’s VA Medical Center in Los Angeles, California. Complainant filed two EEO complaints. In complaint 200P-0691-201510433, Complainant alleged discrimination on the basis of age when: 1. On April 29, 2015, Complainant learned that Dr. G planned to reassign her to another office without her knowledge; 2. Complainant was paid less than younger colleagues, which Complainant learned of on May 29, 2015; and 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. 2021003081 2 3. On July 22, 2015, Complainant attended a staff meeting where a retirement presentation was given. Complainant filed a second complaint, Agency No. 200P-0691-201605330, alleging discrimination on the basis of age and retaliation when: 4. On August 12, 2016, Complainant was assigned additional workload duties; 5. On August 19, 2016, Complainant was issued a written counseling; 6. Since December 2016, and ongoing, Dr.G has refused to communicate with Complainant on the issue of who is Complainant’s supervisor; 7. From in or about September to December 2016, Dr. G transmitted a weekly newsletter to selected staff members but not to Complainant; 8. On March 23, 2017, based on statements by Dr.G, there was staff confusion which resulted in Complainant having to refuse to accept a pager; 9. On March 6, 2017, Dr. G required Complainant submits a doctor’s note relative to a two-day absence; and 10. From April 5, 2017 forward, Complainant has not been provided a reasonable accommodation.2 Thereafter, on October 22, 2020, the AJ issued a decision by summary judgment in favor of the Agency on all claims except claim 2. On January 4, 2021, the AJ issued a decision by summary judgment on claim 2, concluding the Agency did not provide a specific, clear and individualized explanation as to why Complainant was paid less than younger colleagues. Therefore, the AJ entered judgment in favor of Complainant on the pay claim. The Agency was ordered to provide Complainant with backpay from August 21, 2013, to the present. The AJ also ordered training and considering disciplinary action for the involved officials as well as posting a Notice. On January 19, 2021, the Agency issued its final order, pursuant to 29 C.F.R. § 1614.110(a), indicating it was fully implementing the AJ’s decision in its entirety, finding it was supported by substantial evidence, and that it correctly decided that Complainant was entitled to a back pay award. However, two weeks later, on February 3, 2021, the Agency submitted an appeal seeking reconsideration of the AJ’s decision. 2 Complainant added disability as a basis for claims 9 and 10. 2021003081 3 EEOC Regulation 29 C.F.R. § 1614.110(a) authorizes agencies to file an appeal from the decision of an AJ under the following conditions: (1) the Agency has issued a final order that “does not fully implement the decision of the administrative judge,” and (2) the agency has “simultaneously” filed its appeal with EEOC. This is not the case here. Here, the Agency had already issued its final order fully implementing the AJ’s decision. We find the Agency cannot now appeal its own final order. Accordingly, the Agency’s appeal is DISMISSED.3 It is noted that the Agency’s final order addressed the relief to which Complainant was entitled, including back pay, training, disciplinary actions, and posting of a notice. The Agency is required to comply with its own remedial order. See 29 C.F.R. § 1614.504. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0920) The Commission may, in its discretion, reconsider this appellate decision if 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 3 It also appears that the Agency may have intended to withdraw its appeal when, on May 3, 2021, Agency counsel sent in a notice of withdrawal for an appeal filed on February 3, 2021. However, this is unclear because the withdrawal notice stated it concerned Agency Complaint No. 200P-0691-2015103765, which is not one of the two Agency complaint numbers associated with the instant appeal. 2021003081 4 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, a 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. 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 (S0610) 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. 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. 2021003081 5 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