U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Sang G.,1 Complainant, v. Robert McDonald, Secretary, Department of Veterans Affairs, Agency. Appeal No. 0120140162 Hearing No. 471-2011-00092X Agency No. 200J-0655-2010-103778 DECISION Pursuant to 29 C.F.R. § 1614.403, the Equal Employment Opportunity Commission (EEOC or Commission) accepts Complainant's appeal from the Agency's September 26, 2013 final order 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. BACKGROUND During the period at issue, Complainant worked as a Licensed Practical Nurse (LPN) at the Agency's Aleda E. Lutz Veterans Affairs Medical Center in Saginaw, Michigan. On September 9, 2010, Complainant filed a formal EEO complaint alleging the Agency discriminated against him on the bases of sex (male) and in reprisal for prior EEO activity when: 1. in November 2006, he was hired as an LPN, GS-4, but based on his education and experience, should have been hired at the GS-6 grade; 2. on or about March 27, 2007, he was notified that he was not qualified for the position of Logistics Management Officer, advertised under Vacancy Announcement No. 07-15 (GS-2003-13); and 3. on or about September 10, 2008, he was not selected for the position of Medical Administration Specialist (GS-301-7), advertised under Vacancy Announcement No. 08-62.2 After the investigation, Complainant requested a hearing before an EEOC Administrative Judge (AJ). A hearing was held on November 27 and 28, 2012. On August 27, 2013, the AJ issued a decision finding that no discrimination concerning claims 2 and 3. The AJ found, however, Complainant was discriminated against when he was boarded and hired as GS-4 instead of GS-6 (claim 1). The AJ noted that Complainant alleged that the Human Resources Specialist (HR Specialist) failed to provide all his information to Professional Standards Board (PSB) regarding his qualifications relevant to LPN or equivalent experience, and failed to maximize his military experience. Complainant further alleged that the HR Specialist treated female applicants more favorably than him because she ensured that all the relevant information for the female applicants were provided to the PSB. As a remedy, Complainant requested back pay, compensatory damages, and attorney's fees and costs. The AJ stated that she credited Complainant's testimony that he provided substantial information and documents showing his experience, education, training, and other relevant information. The AJ also stated that she credited the Complainant's testimony that the HR Specialist gave him short notice regarding his upcoming PSB boarding, making it impossible for him to submit any additional information or to personally review his package to ensure the HR had all his information. Complainant testified that the HR Specialist told him that she would include his package of information that he provided during the interview. but she failed to include all the information. The AJ noted that the fact that the PSB members did not know the applicants' names or gender does not relieve the Agency of liability because the HR Specialist knew who the applicants were. The AJ determined that the HR Specialist tainted the entire PBS boarding process for Complainant based on his sex when she failed to provide all the information regarding Complainant's experience, education, training and other information to the PSB. The AJ issued an Order that the following actions be taken by the Agency to remedy Complainant for the violation of Title VII: 1. The Agency shall pay Complainant back pay with interest from November 26, 2006 (when he began his employment) to the date when he began being paid at GS-6. The Agency shall include any additional steps that would have been received after one year of employment and ensuing years as if he was originally hired as a GS-6, Step 1. The back pay must include interest and all fringe benefits including TSP contributions and retirement contributions based on the correct pay at GS-6. 2. The Agency shall pay Complainant non-pecuniary compensatory damages in the amount of $25,000.00 3. The Agency shall pay Complainant's attorney in the amount of $21,487.50 for attorney's fees. 4. The Agency shall require the responsible management officials, including the HR Specialist, who placed Complainant on the standby to attend at least eight (8) hours on Title VII with an emphasis on sex and reprisal discrimination and the current state of the cat's paw theory of liability. 5. The Agency shall post at its Saginaw, Michigan facility, copies of the attached notice. On September 26, 2013, the Agency issued a Final Order, indicating that it would implement the AJ's decision. The instant appeal followed. Complainant limits his appeal to the Agency's subsequent actions concerning his back pay award. He argues that while the AJ ordered the Agency "to correct the Grade at which Complainant was boarded from a grade 4 to the proper grade 6, the ALJ erroneously reduced the step at which Complainant was boarded from step 4 to step 1. While the Grade accorded to the Complainant upon hire was incorrect and discriminatory, the step granted to Complainant at boarding (step 4) reflected Complainant's experience and was not challenged at the hearing." (emphasis added). Complainant argues that his attorney repeatedly sought information form the Agency regarding the back pay calculation and it was not until December 19, 2013, when she was provided a proposed back pay calculation. Further, Complainant argues that according to the AJ's August 27, 2013 decision, he "was to be paid back pay up '...to the date when he began paid at a Grade 6.' However, in implementing the Order, at least according to the back pay calculation provided (Exh A), the Agency did not conclude its backpay calculations on the date at which (the Complainant '...began being paid at a Grade 6.' Instead, and contrary to the decision of the ALJ and the Final Order, the Agency continued its calculations after the Complainant was first paid at a Grade 6 (11/23/2008 - Exh A) through 11/18/12 (Exh A). As a result, the Complainant has had promotions and step increases cancelled and his backpay, otherwise due, reduced [emphasis in its original]." ANALYSIS AND FINDINGS The purpose of a back pay award is to restore Complainant the income he would have otherwise earned but for the discrimination. See Albemarle Paper Co. v. Moody, 442 U.S. 405, 418-19 (1975); Davis v. U.S. Postal Service, EEOC Petition No. 0490010 (Nov. 29, 1990). A back pay claimant generally has a duty to mitigate damages. But the Agency has the burden to establish, by a preponderance of the evidence that a complainant has failed to mitigate her damages. See 29 C.F.R. 1614.501(d); McNeil v. U.S. Postal Service, EEOC Request No. 05960436 (Dec. 9, 1999). The Commission recognizes that precise measurement cannot always be used to remedy the wrong inflicted, and therefore, the computation of back pay awards inherently involves some speculation. Hanns v. U.S. Postal Service, EEOC Petition No. 04960030 (Sept. 18, 1997). However, uncertainties involved in a back pay determination should be resolved against the Agency which has already been found to have committed the acts of discrimination. Id.; see also Klook v. U.S. Postal Service, EEOC Petition No. 04A40012 (June 16, 2004). Complainant first argues that the AJ erred in fashioning the back pay award by explicitly ordering the Agency to calculate his award to start at the Grade 6, Step 1 level, rather than at the Step 4 level, noting he was originally boarded at the Grade 4, Step 4 level. However, there is simply no evidence of record to establish what step Complainant would have been boarded at had he originally been hired as a GS-6. While he argues on appeal that his prior experience, including his military service, entitled him to the Step 4 level when he was boarded as a Grade 4, the AJ determined that this same experience should have entitled him to be boarded at the Grade 6. Accordingly, we conclude that Complainant has failed to establish that the AJ erred in ordering his back pay to be based on the premise that he should have been originally hired as a Grade 6, Step 1. Thus, the back pay calculations should reflect that as of Complainant's hiring on November 26, 2006, Complainant should be paid at the Grade 6, Step 1, level. However, the record reflects that as of November 23, 2008, Complainant had actually been promoted to the Grade 6, Step 4 level. The Agency, in implementing the AJ's order, cancelled this promotion and calculated that Complainant, had he been hired at the Grade 6 level, would have only achieved Step 3 by that time. In short, the Agency appears to have started reducing Complainant's pay at this point. We find that the Agency erred in continuing its back pay calculations after the date (November 23, 2008) Complainant was first paid at the GS-6 level. The AJ was clear that the back pay period ended on the date Complainant began being paid at the Grade 6 level. Therefore, the back pay period should end on November 23, 2008,3 the date Complainant was originally promoted to the GS-6/Step 4 level. Complainant does not owe the Agency anything for the period after November 23, 2008, when he was actually promoted to the Grade 6, Step 4 level. He should retain the Step 4 and all subsequent step and other pay increases incurred after November 23, 2008. Accordingly, we REMAND this matter to the Agency to take remedial action in accordance with this decision and the ORDER set forth below. ORDER To the extent that the Agency has not already done so, the Agency is ORDERED to take the following remedial action: Within sixty (60) calendar days of the date of this decision is issued, the Agency shall pay Complainant back pay with interest from November 26, 2006 (when he began his employment) to the date when he began being paid at GS-6 level, on November 23, 2008. During this period (November 2006 to November 2008), the Agency shall include any additional steps or other increases that would have been received. Regardless of these back pay calculations, Complainant is entitled to retain his November 23, 2008, GS-6, Step 4 promotion and all subsequent promotions, step increases and other pay adjustments based on that promotion. The back pay award must include interest and all fringe benefits including TSP contributions and retirement contributions based on the correct pay at GS-6. Complainant shall cooperate in the Agency's efforts to compute the amount of back pay and benefits due, and shall provide all relevant information requested by the Agency. If there is a dispute regarding the exact amount of back pay and/or benefits, the Agency shall issue a check to Complainant for the undisputed amount within sixty (60) calendar days of the date the Agency determines the amount it believes to be due. Complainant may petition for enforcement or clarification of the amount in dispute. The petition for clarification or enforcement must be filed with the Compliance Officer, at the address reference in the statement entitled "Implementation of the Commission's Decision." The Agency is further directed to submit a report of compliance, as provided in the statement "Implementation of the Commission's Decision." The report shall include supporting documentation verifying that the corrective action has been implemented. ATTORNEY'S FEES (H0610) If Complainant has been represented by an attorney (as defined by 29 C.F.R. § 1614.501(e)(1)(iii), 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 this decision becoming final. 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 (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 Petitioner 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 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 (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. 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 December 28, 2016 __________________ Date 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 The record reflects that on October 25, 2010, the Agency issued a final decision dismissing the instant formal complaint for untimely EEO Counselor contact. On appeal, the Commission reversed the Agency's dismissal and remanded the matter to the Agency for further processing. Engle v. Department of Veterans Affairs, EEOC Appeal No. 0120110872 (April 29, 2011). Following the Commission's decision, the Agency processed the remanded claims in accordance with 29 C.F.R. § 1614.108, which is now the subject of the instant appeal 3 This date comes from the Agency's back pay calculation sheet that appeared as Exhibit A to Complainant's brief on appeal. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 0120140162 2 0120140162