U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Nevada R.,1 Complainant, v. Robert McDonald, Secretary, Department of Veterans Affairs, Agency. Appeal No. 0120140904 Hearing No. 430-2011-00192X Agency No. 200405902010102960 DECISION On December 11, 2013, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), alleging that the Agency did not comply with a September 24, 2013 final agency decision (FAD), concerning her 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. For the following reasons, the Agency's finding that it is in compliance with its FAD, which fully implemented an Equal Employment Opportunity Commission Administrative Judge's (AJ) finding of discrimination and associated remedies, is AFFIRMED in part and REVERSED in part. The complaint is REMANDED for compliance. ISSUES PRESENTED Did the Agency comply with its FAD, which ordered relief, including a promotion, back pay, and considering disciplinary action against the responsible management officials, for Complainant consistent with an AJ's finding that Complainant was subjected to race discrimination when she was not selected for a Lead Supervisory Social Worker position? BACKGROUND On August 19, 2013, an AJ determined that Complainant was subjected to race (African American) discrimination when she was not selected for a Lead Supervisory Social Worker position. The AJ ordered, in relevant part, for Complainant to be promoted into an "available Lead Supervisory Social Worker position, or similar position, and accord her the full benefits and privileges of employment, consistent with applicable federal statutes, rules, and regulations covering civil service employees, unless the Complainant indicates that she would prefer to remain in her present position." AJ Decision, p. 10. The AJ also ordered for the AJ to pay Complainant back pay consistent with the difference in pay that Complainant would have received had she been hired on May 23, 2010, the date that the selectee was promoted to the Lead Supervisory Social Worker position. Id. On September 24, 2013, the Agency issued a FAD fully implementing the AJ's decision as well as the relief that was ordered. On November 6, 2013, Complainant informed the Agency of her belief that it was not in compliance with the FAD, specifically, that the Agency did not place Complainant in a Lead Supervisory Social Worker position, nor provided her with corresponding back pay, consistent with the AJ's decision and the FAD. Complainant also alleged that the Agency did not consider disciplinary action against the responsible management officials. According to the Complainant, the Agency responded by letter on November 26, 2013 indicating that it planned to complete all corrective actions by December 24, 2013. However, Complainant indicates on appeal that she did not receive the promotion or corresponding back pay. CONTENTIONS ON APPEAL Complainant contends the following on appeal: (1) that she was not offered a Lead Supervisory Social Worker or substantially similar position; (2) the position she was offered did not have supervisory authority over any other supervisors which is a critical element of such a position; and (3) the Agency did not award her appropriate back pay nor did it consider disciplinary action against the responsible management officials. The Agency contends the following on appeal: (1) the AJ's award of compensatory damages was correct; (2) Complainant refused to accept the Lead Social Worker position offered by the Agency in compliance with the Order; and (3) Complainant's appeal statement is vague and conclusory and it fails to detail or specify any harms claimed that she has not already been compensated for. ANALYSIS AND FINDINGS Complainant contends that the Agency did not comply with the FAD in promoting her to a Lead Supervisory Social Worker position or providing her with the corresponding back pay, and that the Agency did not consider disciplinary action against the responsible management officials. The Agency contends that it did offer Complainant a position, however, Complainant did not accept the offer. Further, the Agency contends that it is in compliance with all other aspects of the FAD. Relief which is provided pursuant to Title VII is designed to make a person who has been subjected to discrimination 'whole' by placing him 'as near as may be, in the situation he would have occupied if the wrong had not been committed.' Albemarle Paper Co. v. Moody, 422 U.S. 405, 418-19 (1975). A substantially equivalent position is one that is similar in duties, responsibilities, and location (reasonable commuting distance) of the position which petitioner originally applied for. See Spicer v. Department of the Interior, Petition No. 04980007 (September 24, 1998); Patterson v. Department of Agriculture, EEOC Request No. 05940079 (October 21, 1994). The burden is on the agency to establish that the position offered to petitioner is in fact substantially equivalent to the position lost. Rai v. Department of the Interior, EEOC Appeal No. 01901186 (May 17, 1990). The Agency offered Complainant a position as a Senior Supervisor Social Worker for Mental Health Programs (GS-13). Complainant did not accept the offer on grounds that it was not a Lead Supervisory Social Worker or substantially equivalent position. According to Complainant, the position should have responsibility over other supervisors, however, no other supervisors would report to her under this position. An examination of a Lead Supervisory Social Worker position description reveals that there is no apparent requirement to have other supervisors report to the individual occupying the position, however, it is unclear whether other Lead Supervisory Social Workers have such a reporting structure, while the differently titled position offered to Complainant does not. See Agency Compliance Report, p. 27-30. Complainant received an offer of a GS-13 position, which brought a total of 15 programs and 33 staff under her management, however, her argument that no supervisors report to her is not addressed by the Agency on appeal or elsewhere. Further, the memorandum describing the Senior Supervisor Social Worker for Special Mental Health Programs job offer she received does not specify what duties she would have in the course of managing the programs that are listed. Agency Compliance Report, p. 21. Therefore, the Agency has not demonstrated that the position it offered to complainant was substantially equivalent to the one she was discriminatorily denied and that it is in compliance with that portion of the FAD and the AJ's decision requiring it to promote Complainant to an "available Lead Supervisory Social Worker position, or similar position." Regarding Complainant's contention that she was not given an appropriate amount of back pay dating back to May 23, 2010, the Agency submitted documentation tending to show that Complainant was awarded back pay for the time period, however it is impossible to tell from the documents submitted if Complainant was given back pay with interest for the appropriate amount of time, as there is no explanation of how the calculation was done. See Complainant v. Dep't of Transportation, EEOC Petition No. 0420130020 (Apr. 16, 2015) (explaining that an agency needs to provide a plain language explanation of how it calculates a back pay award). Therefore, the Agency has not demonstrated that it is in compliance with the portion of the FAD requiring it to award Complainant pay retroactive to May 23, 2010.2 Finally, regarding Complainant's allegation that the Agency did not show that it considered disciplinary action against the responsible management officials, the Agency submitted documentation explaining that it issued verbal instructions and counseling to the responsible management officials. See Agency Compliance Report, p. 16. Therefore, the Agency is in compliance with the portion of the FAD requiring it to consider disciplinary action against the responsible management officials. However, the Agency is not in compliance with that portion of the FAD requiring it to calculate and award Complainant back pay and offer Complainant an available Lead Supervisory Social Worker position or substantially equivalent position. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed, the Agency's decision finding that it was in compliance with its September 24, 2013 FAD, which fully implemented an AJ's finding of discrimination and relief, is AFFIRMED in part and REVERSED in part. The complaint is REMANDED for compliance with this decision and the Order below. ORDER Within one hundred and twenty (120) calendar days of the date this decision becomes final, to the extent that it has not already done so, the Agency shall: 1. Offer Complainant an available Lead Supervisory Social Worker position, or a substantially equivalent position, and accord her the full benefits and privileges of employment, consistent with applicable federal statutes, rules, and regulations covering civil service employees, unless Complainant indicates that she would prefer to remain in her present position. The offer should be made in writing, providing Complainant 15 (fifteen) calendar days from receipt of the offer to notify the agency of the acceptance or rejection. Failure of Complainant to respond within the 15 day time limit shall be construed as a declination. 2. Award Complainant the appropriate amount of back pay, interest, and other benefits pursuant to 29 C.F.R. § 1614.501(c), which was lost as a result of Complainant not being selected for the Lead Supervisory Social Worker position. Back pay shall be awarded from May 23, 2010 through the date that Complainant begins the Lead Supervisory Social Worker position or a substantially equivalent position, or the date she declines an offer for the position. 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 the Complainant for the undisputed amount within 120 (one hundred and twenty) 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 referenced in the statement entitled "Implementation of the Commission's Decision." 3. Provide Complainant with a detailed statement clarifying how Complainant's back pay award was reached. The statement shall consist of a clear and concise, "plain language" statement of the assumptions made, calculations used for the instant matter, and actual calculations applying said formulas and methods. ATTORNEY'S FEES (H1016) If Complainant has been represented by an attorney (as defined by 29 C.F.R. § 1614.501(e)(1)(iii)), she 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 the date this decision was issued. 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 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 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 __________________ 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 "Back pay includes all forms of compensation and reflects fluctuations in working time, overtime rates, penalty overtime, Sunday premium and night work, changing rates of pay, transfers, promotions, and privileges of employment. The Commission also construes "benefits" broadly to include annual leave, sick leave, health insurance, and retirement contributions." Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 11 § III.B (Aug. 5, 2015) (citing, Vereb v. Dep't. of Justice, EEOC Petition No. 04980008 (Feb. 26, 1999); Holly v. U.S. Postal Service, EEOC Petition No. 04A50003 (Nov. 2, 2005)). Complainant argues that her back pay should include some additional items, including the difference in pay for a GS-14 job she would have applied to if she were selected for position in question. Complainant would not be entitled to back pay for such a speculative promotion. See, e.g., Jewell v. Dep't of Treasury, EEOC Petition No. 04920011 (June 18, 1993) (finding that a promotion was too speculative to be awarded as a remedy). --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 01-2014-0904 7 0120140904