[Redacted], Kenneth W., 1 Complainant,v.Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

May 20, 2021

Appeal No. 2020002746 (E.E.O.C. May. 20, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Kenneth W.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency. Appeal No. 2020002746 Hearing No. 430-2015-00280X Agency No. 2004-0005-2014104809 DECISION Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), in which he raises the issue of noncompliance with the Agency’s November 14, 2019 final order. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as an Information Technology Specialist, GS-11, at the Agency’s Office of Information Technology in Durham, North Carolina. On October 31, 2014, Complainant filed an EEO complaint alleging discrimination based on race (Black) and in reprisal for prior EEO activity when: 1. On August 1, 2014, Region 2 Facility Manager Division Chief did not select Complainant for the Information Technology Specialist, GS-12/13, position under Vacancy Announcement GW-14-Ale-1139248-SL; 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. 2020002746 2 2. On December 12, 2014, Complainant learned that he was not selected for the Information Technology Specialist, GS-12/13, position under Vacancy Announcement GW-15-Ale- 1230084-sl-BU. The record indicated that the Agency decided not to make a selection for the position described in claim 1 but decided to re-announce the position described in claim 2. After an investigation of the complaint, Complainant requested a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). The AJ held a hearing and issued a decision finding that the Agency discriminated against Complainant based on retaliation when he was not selected to the GS-12/13 position in September 2014. The AJ found that Complainant was entitled to the following remedies: 1. The Agency shall promote Complainant to the GS-12/13 position or an equivalent position; 2. The Agency shall pay Complainant non-pecuniary damages in the amount of $32,000.00; 3. The Agency shall pay Complainant pecuniary damages in an amount to be determined for back wages, benefits (from September 5, 2014, through the present), loss of promotion potential, and interest; 4. The Agency shall pay Complainant pecuniary damages in the amount of $425.00; 5. The Agency shall pay Complainant’s attorney’s reasonable fees and costs in the amount of $31,136.74; 6. The Agency shall take corrective, curative, or preventive action to ensure that similar violations of the law will not recur; 7. The Agency shall provide anti-retaliation training for management; and 8. The Agency shall post a notice that the Agency has been found to have discriminated against an employee at the Durham VAMC in Durham, North Carolina. On November 14, 2019, the Agency issued its final order fully adopting the AJ’s decision. The Agency found that it discriminated against Complainant based on retaliation when it did not select him for the GS-12/13 position in September 2014. The Agency stated that it will implement the following remedial actions: 1. The Agency, within 30 calendar days of the date of this final order, shall pay Complainant $425.00 for pecuniary losses and $32,000.00 in nonpecuniary damages for the harm found to have been caused by the discriminatory actions which occurred in this case. 2. The Agency, within 30 calendar days of the date of this final order, shall pay attorney’s fees and costs in the amount of $31,136.74. 3. The Agency, within 30 calendar days of the date of this final order, offer Complainant the position of Information Technology Specialist, GS-2210-12/13, or an equivalent position of the type and grade originally denied to him, retroactive to September 5, 2014, with 2020002746 3 back pay (less interim earnings), statutory interest, and any and all benefits or training that he would otherwise have earned or received but for the prohibited discrimination. Within 30 calendar days of receipt of all necessary information, the Agency will implement the remedial relief ordered in the foregoing paragraphs, and shall advise Complainant in writing of: (1) the amount of back pay and other benefits due to him; and, (2) how the Agency reached its determinations regarding these matters. The Agency shall provide Complainant with this written determination. When the final amount of back pay is determined pursuant to Agency calculations, Complainants shall have the opportunity to establish his additional tax and be paid that amount. Complainant will have 30 calendar days to submit documentation of the increased tax liability to the Agency, and the Agency will have 60 calendar days to reimburse Complainant for the additional tax liability incurred. If there is a dispute regarding the exact amount of back pay, the Agency shall issue Complainant a check for the undisputed amount within 60 calendar days of the date the Agency determines the amount it believes to be due. 4. The Agency shall restore all leave, if any (annual, sick, or leave without pay) taken as a result of the discriminatory actions. 5. The Agency, pursuant to 29 C.F.R. § 1614.501(a)(2), shall take whatever corrective, curative, and preventive actions and will adopt whatever measures are necessary to ensure that violations of federal EEO law similar to those found in this case do not recur. 6. The Agency, noting the fact that the responsible management official was no longer with the Agency, within 90 calendar days of the date of this final order, shall provide three hours of EEO training on the anti-retaliation to five named responsible management officials. 7. The Agency, within 30 calendar days of the date of this final order, shall post a notice regarding unlawful discrimination at the Durham VAMC in Durham, North Carolina. On December 10, 2019, Complainant notified the Agency that it failed to comply with remedial provision 3 in its final order regarding his back pay. On December 13, 2019, the Agency responded that it submitted all paperwork to process his back pay to Defense Finance and Accounting Services (DFAS), the entity that administered payments and restored leave. On January 31, 2020, the Agency provided Complainant with its weekly update on his back pay indicating that it continued to work with DFAS. The Agency noted that DFAS initially rejected its paperwork which had to be resubmitted causing the delay in processing Complainant’s back pay. 2020002746 4 On February 20, 2020, Complainant filed this appeal indicating that although he was paid $22,883.67 for back pay in February 2020, the Agency still owed him $65,000.00 in back pay according to his calculation. On April 12, 2021, the Agency submitted a copy of DFAS’s back pay calculation and its payments to Complainant pursuant to the back pay award in its final order. According to the DFAS’s calculation, Complainant was entitled to back pay in an amount of $72,477.58. The record submitted by the Agency indicates that Complainant was paid $22,942.70 on pay period ending (PPE) January 18, 2020, and $49,534.88 on PPE May 23, 2020, for a total amount of $72,477.58. The record also indicates that Complainant was paid $9,227.98 for interest on his back pay on PPE May 23, 2020. ANALYSIS AND FINDINGS EEOC Regulation 29 C.F.R. § 1614.504 provides that if complainant believes that the agency failed to comply with its final action, the complainant shall notify the Director of Equal Employment Opportunity, in writing, of the claimed noncompliance, within 30 days of when the complainant knew or should have known of the claimed noncompliance. In addition, 29 C.F.R. § 1614.504(b) provides that the agency shall resolve the matter and respond to the complainant in writing. It further provide, in part that, if the agency has not responded to the complainant, in writing, or if the complainant is not satisfied with the agency's attempt to resolve the matter, the complainant may appeal to the Commission for a determination as to whether the agency has complied with the terms of final decision. Initially, we note that the sole issue before us concerns Complainant’s back pay award under remedial provision 3 in the Agency’s November 14, 2019 final order. According to the DFAS’s calculation in the record, Complainant was entitled to $72,477.58 back pay for the period from September 5, 2014, to PPE May 23, 2020. Complainant does not contest this. The record indicates that Complainant was paid an initial amount of $22,942.70 on PPE January 18, 2020, and the remaining amount of $49,534.88 on PPE May 23, 2020. These amounts were reduced by deductibles and withholdings. The record reflects that Complainant, in his May 27, 2020 electronic message, notified the Agency’s Office of Resolution Management Officer that he has recently received $38,000.00 in back pay owed to him in addition to $22,883.67 he received as back pay in February 2020. Since receipt of the full back pay award, Complainant has not claimed that the Agency owes him any additional back pay under its final order. Based on the foregoing, we find that the Agency has complied with its final order concerning Complainant’s back pay award. CONCLUSION Accordingly, we AFFIRM the Agency’s determination that it complied with its final order concerning Complainant’s back pay award. 2020002746 5 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. 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). 2020002746 6 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. 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 20, 2021 Date