Rhea H.,1 Complainant,v.Gina McCarthy, Administrator, Environmental Protection Agency, Agency.

Equal Employment Opportunity Commission

Nov 23, 2016

0120142029 (E.E.O.C. Nov. 23, 2016)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Rhea H.,1
Complainant,

v.

Gina McCarthy,
Administrator,
Environmental Protection Agency,
Agency.

Appeal No. 0120142029

Hearing No. 440-2012-00153X

Agency No. 2012-0008-R05

DECISION

Complainant filed an appeal from the Agency’s March 24, 2014, final order concerning her
equal employment opportunity (EEO) complaint alleging employment discrimination in
violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq.,
and the Age Discrimination in Employment Act of 1967, as amended, 29 U.S.C. § 621 et seq.
For the following reasons, the Commission AFFIRMS the Agency’s final order.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as an EEO/ADR
Specialist at the Agency’s work facility in Indianapolis.

On November 17, 2011, Complainant filed an EEO complaint wherein she claimed that the
Agency discriminated against her on the bases of her race (African-American), sex (female),
and age (57) when in August 2011, she was not selected for an EEO Manager, GS-13,
position. 2

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.

2 Complainant withdrew her claim of reprisal with regard to her nonselection.
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At the conclusion of the investigation, the Agency provided Complainant with a copy of the
report of investigation and notice of her right to request a hearing before an Equal Employment
Opportunity Commission Administrative Judge (AJ). Complainant timely requested a hearing
and the AJ held a hearing on January 16, 2014, and issued a decision on February 7, 2014.

The AJ found that discrimination occurred with regard to each of the alleged bases. The AJ
ordered the Agency to hire Complainant into the EEO Manager position and provide her with
back pay, plus interest, and benefits (less interim earnings and benefits) to which she would be
entitled had she been hired in September 2011. The AJ ordered that the Agency provide EEO
training for management employees at the Chicago facility. The AJ also ordered the Agency
to post at the Chicago facility a Notice concerning the discrimination that occurred there.
Additionally, the AJ ordered that the parties discuss settlement of attorney’s fees and file a
statement on February 28, 2014, informing her of the parties’ respective settlement positions.

The AJ stated that assuming the parties do not settle the fees, Complainant’s attorney shall
submit a verified statement of attorney’s fees to her and the Agency representative within thirty
days of receipt of her decision. The AJ denied Complainant’s request for travel costs stating
that these damages were too speculative to be awarded. The AJ noted that compensatory
damages are not available in cases under the ADEA. With regard to an award of
compensatory damages under Title VII, the AJ found that the evidence of emotional distress
was too speculative to warrant an award.

The Agency subsequently issued a final order dated March 24, 2014, adopting the AJ’s finding
that Complainant proved that the Agency subjected her to discrimination as alleged. The
Agency stated that it needed to partially modify the relief granted and offer a substantially
equivalent position because the organization and functions have changed in the last three years.
According to the Agency, when the EEO Manager position became vacant on October 6, 2013,
it decided to change the title of the position and to clarify the functions of the position. The
Agency stated that the position to which Complainant applied no longer existed.

The Agency extended an offer of employment for the position of Equal Employment
Opportunity Specialist, GS-0260-13, Region 5, in Chicago, no later than April 15, 2014. The
Agency stated that Complainant will have fifteen days from receipt of the employment offer to
either accept or decline the offer. The Agency stated that if the offer is accepted, appointment
will be retroactive to September 2011, and Complainant will be awarded back pay plus interest
(less interim earnings and benefits), from September 2011 to the date of acceptance of the offer
of employment. If the offer is declined, the Agency stated that Complainant will be awarded a
sum equal to the back pay and interest she would have received (less interim earnings and
benefits), from September 2011 to the date the offer of employment is declined.

With respect to Complainant’s attorney’s Petition for Interim Attorney’s Fees and Cost, the
Agency asserted that Complainant’s attorney failed to comply with the AJ’s Order because he
did not submit a verified statement of attorney’s fees and cost, as well as evidence of being
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licensed. The Agency stated that Complainant’s representative’s failure to comply with the
AJ’s Order prevents it from implementing this portion of the AJ’s Order.

Additionally, the Agency stated that its Region 5 will enroll management employees at the
Chicago facility in appropriate EEO training no later than May 1, 2014. The Agency further
stated that the Notice to Employees concerning the finding of discrimination will be posted at
the Chicago facility.

CONTENTIONS ON APPEAL

On appeal, Complainant contends that the Agency failed to comply with the AJ’s Decision.
Complainant argues that the Agency placed her in a position that is not the same as that which
she sought in the instant complaint. Complainant maintains that the EEO Manager position she
sought manages a Federal employment opportunity program. In contrast, Complainant claims
that the Equal Employment Opportunity Specialist position she received is in support of the
Equal Employment Manager’s work in Region 5. Complainant asserts that the latter position
has no supervisory responsibilities in comparison with the EEO Manager position.
Complainant states that the Agency further informed her that it does not owe her any back pay.
Complainant notes that the Agency has taken the position that she earned more with the United
States Postal Service from September 11, 2011 to May 5, 2014, than she would have earned
with the Agency during that time span. Complainant contends that the Agency owes her for all
pay from September 11, 2011, plus step increases equivalent to approximately a three percent
increase per year and interest at the rate of three percent for all time up to the payment to
Complainant, minus earnings from the United States Postal Service. Additionally,
Complainant challenges the AJ’s denial of her attorney’s Petition for Interim Attorney’s Fees
and Costs. Finally, Complainant contends that the AJ denied her the right to a complete and
fair hearing by not sending the parties copies of the record produced at the hearing stage of the
process, including the hearing transcript.

In response, the Agency asserts that it offered Complainant a substantially equivalent position
because the original position no longer exists. The Agency maintains that the change in title of
the EEO Manager position to EEO Specialist was based on a routine agency business reason.
According to the Agency, despite its good faith efforts, any delay in paying Complainant back
pay resulted from circumstances beyond its control. The Agency argues that Complainant’s
counsel waived attorney’s fees when he breached his duty to proceed in good faith by failing to
timely submit a verified statement of attorney’s fees and costs as ordered by the AJ. The
Agency further asserts that Complainant has not demonstrated any harm associated with any
delays in her receipt of copies of the record produced at the hearing stage of the process,
including the hearing transcript.

The Agency notes that Complainant began employment at the Agency in the offered EEO
Specialist position on June 4, 2014. In support of its assertion that the position is substantially
equivalent to that which Complainant sought, the Agency states that the position description
coversheet for the EEO Manager position clearly states that the position had no supervisory
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status. The Agency lists many of the duties of her EEO Specialist position and concludes that
Complainant’s role and duties and responsibilities as an EEO Specialist are substantially
equivalent to that of the EEO Manager position.

The Agency explains its delay in paying back pay as being due to its change of its human
resources and payroll system from the Defense Finance and Accounting System to the
Department of Interior’s Interior Business Center; the delayed receipt of Complainant’s W2s
and timecards from Complainant’s former employer, the United States Postal Service; and the
fact that payroll records must be obtained from the United States Postal Service. As for the
AJ’s denial of Complainant’s attorney’s Petition for Interim Attorney’s Fees and Cost, the
Agency points out that Complainant’s attorney failed to submit a verified statement of
attorney’s fees and costs to the AJ or the Agency representative within thirty days of receipt of
the AJ’s decision.

ANALYSIS AND FINDINGS

The Commission has consistently held that a substantially equivalent position is one which is
similar in duties, responsibilities and location (reasonable commuting distance) to the position
for which the Complainant originally applied. See e.g., Monroig v.U.S. Commission on Civil
Rights, EEOC Petition No. 04A40029 (September 29, 2005); Spicer v. Department of the
Interior, EEOC Petition No. 04980007 (September 24, 1998); Patterson v. Department of the
Agriculture, EEOC Request No. 05940079 (October 21, 1994). The burden is on the Agency
to establish that the position offered to Complainant in fact is substantially equivalent to the
position lost. See Rai v. Department of the Interior, EEOC Appeal No. 01901186 (May 17,
1990).

Complainant contends that the Agency placed her in a position that is not the same as that
which she sought in the instant complaint. Complainant argues that the EEO Manager position
she sought manages a Federal employment opportunity program. According to Complainant,
the Equal Employment Opportunity Specialist position she received is in support of the Equal
Employment Manager’s work in Region 5. Complainant maintains that the position she
received has no supervisory responsibilities in comparison with the EEO Manager position.
The Agency asserts that it offered Complainant a substantially equivalent position because the
original position no longer exists. The Agency points out that the position description
coversheet for the EEO Manager position states that the position had no supervisory status.
The Agency argues that Complainant’s role and duties and responsibilities as an EEO
Specialist are substantially equivalent to that of the EEO Manager position.

The position description for Complainant’s EEO Specialist position states that her role is to 1)
advise regional supervisors and senior management officials on the full range of EEO
concerns; and 2) administer and coordinate the informal EEO complaints processing system…
Complainant’s duties as an EEO Specialist include but are not limited to 1) ensuring the timely
processing of informal discrimination complaints; 2) maintaining the electronic and paper case
files for informal complaints; 3) advising EEO Counselors of individual case issues and bases;
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4) managing EEO Counselor development/training; 5) attempting informal resolution of the
complaint when appropriate; 6) recommending disposition of the issue(s) of alleged
discrimination; 7) reviewing policies, proposed legislation, court decisions and regulations to
determine their impact to the Regional Agency Civil Rights Program; 8) managing the regional
portion of the National Complaint System; and 9) conducting studies and analyses of the region
for reports to the Region 5 Office of Civil Rights Director and/or Deputy Regional
Administrator.

The duties of the EEO Manager position that Complainant sought include:

Prepares and revises plans, procedures, regulations, recommendations, or corrective
action needed.

Arranges for the proper training and provides leadership and administrative supervision
to equal employment opportunity advisory committees, equal employment opportunity
technical assistants, and other specifically designated equal employment opportunity
staff personnel involved in the planning, counseling, investigative, personnel, and legal
aspects of equal employment opportunity;

Directs and provides equal employment opportunity expertise in the special program
areas of upward mobility, Federal women’s program, Hispanic employment program,
and the worker-trainee opportunities program;

Counsels employees and applicants who believe they have been discriminated against;
supervises the timely, fair and impartial consideration and disposition of complaints;
schedules prompt investigation of complaints, negotiating for informal adjustment
whenever possible, maintains and secures all documents pertinent to informal and
formal complaints;

Arranges for a formal hearing where requested by the complainant; makes the final
decision when authorized for the chairman on formal discrimination complaints based
on evaluations and information in the complaint file;

Prepares, coordinates, and issues the agency’s annual affirmative action plan; assures
that the plan complies with the purpose of equal employment opportunity;

Participates with schools, universities, and other public and private groups to exchange
ideas, solicit assistance, communicate the equal employment opportunity policy and
obtain sources of candidates.

Upon review of the duties of these two positions, we find that the EEO Specialist position was
substantially equivalent to that of the EEO Manager position. There appear to be some
differences in responsibility but given the EEO Manager position no longer exists, the EEO
Specialist position was close in nature and thus was appropriately offered to Complainant.
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With respect to the issue of back pay, we do not observe any documentation in the record
indicating the Agency has taken the position it does not owe Complainant any back pay. As to
the processing of the back pay request, the evidence indicates that the delay in issuing
Complainant back pay has not been attributable to bad faith or dilatory tactics on the part of the
Agency. Rather, the record illustrates that delays have occurred due to the fact that there was
a delay in receiving Complainant’s W2s and timecards from the United States Postal Service,
payroll records must be obtained from the United States Postal Service and there was a change
in the Agency’s human resources and payroll system from the Defense Finance and Accounting
System to the Department of Interior’s Business Center. In light of these circumstances, we
find that the Agency has not failed to comply with the AJ’s Order with regard to the issuance
of back pay. We reiterate the AJ’s Order regarding back pay to the extent the Agency has not
yet issued Complainant the amount owed.

As for the AJ’s denial of Complainant’s attorney’s Petition for Interim Attorney’s Fees and
Cost, the Agency points out that Complainant’s attorney failed to submit a verified statement of
attorney’s fees and costs to the AJ or the Agency representative within thirty days of receipt of
the AJ’s decision. The AJ’s Decision was issued on February 7, 2014. The record indicates
that Complainant’s attorney submitted his Petition on April 5, 2014. We find that
Complainant’s attorney has offered no persuasive grounds for the untimely submission of the
Petition.

With regard to Complainant’s contention that the AJ denied her the right to a complete and fair
hearing by not sending the parties copies of the record produced at the hearing stage of the
process, including the hearing transcript, we find that Complainant has not demonstrated any
harm associated with any delays in her receipt of copies of the record produced at the hearing
stage of the process, including the hearing transcript.

CONCLUSION

The Agency’s determination that it has thus far acted in compliance with the AJ’s Order is
AFFIRMED. To the extent the Agency has not already done so, the Agency shall comply with
the AJ’s Order on back pay as set forth below.

ORDER

To the extent the Agency has not already done so:

The Agency shall determine the amount of back pay, plus interest, and other benefits due
Complainant, less any interim earnings.

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IMPLEMENTATION OF THE COMMISSION’S DECISION (K0610)

Compliance with the Commission’s corrective action is mandatory. The Agency shall submit
its compliance report within thirty (30) calendar days of the completion of all ordered
corrective action. The report shall be submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC
20013. The Agency’s report must contain supporting documentation, and the Agency must
send a copy of all submissions to the Complainant. 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.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0416)

The Commission may, in its discretion, reconsider the decision in this case if the Complainant
or the Agency submits a written request containing arguments or evidence which 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 to reconsider, with supporting statement or brief, must be filed with the Office of
Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision or within
twenty (20) calendar days of receipt of another party’s timely request for reconsideration. See
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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). All requests and arguments
must be submitted to the Director, Office of Federal Operations, Equal Employment
Opportunity Commission. The requests may be submitted via regular mail to P.O. Box 77960,
Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. In
the absence of a legible postmark, the request to reconsider shall be deemed timely filed if it is
received by mail within five days of the expiration of the applicable filing period. See 29
C.F.R. § 1614.604. The request or opposition must also include proof of service on the other
party.

Failure to file within the time period will result in dismissal of your request for reconsideration
as untimely, unless extenuating circumstances prevented the timely filing of the request. Any
supporting documentation must be submitted with your 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 (T0610)

This decision affirms the Agency's final decision/action in part, but it also requires the Agency
to continue its administrative processing of a portion of your complaint. 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 on both that portion of your complaint which
the Commission has affirmed and that portion of the complaint which has been remanded for
continued administrative processing. 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 your appeal with the Commission, until such time as the Agency issues its final decision on
your complaint. 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
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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

November 23, 2016
Date