EEOC Appeal 2025001826

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Sector
P.O. Box 77960
Washington, DC 20013
Filiberto H.,1
Complainant,
v.
Douglas A. Collins,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 2025001826
Agency No. 200P10N202023153836
DECISION
On February 26, 2025, Complainant notified this Commission that the Agency had
not fully complied with the terms of its final decision (FAD), dated October 28,
2024. See 29 C.F.R. § 1614.402 and 29 C.F.R. § 1614.405.
BACKGROUND
Complainant worked as a Supervisory Orthotist-Prosthetist, GS-0667-12, in the
Central Fabrication Unit (CFU) of the Agency’s Veterans Integrated Service
Network (VISN) 20, which was located in Vancouver, Washington. On September
15, 2023, Complainant filed a complaint of discrimination alleging that the Agency
discriminated against him and subjected him to harassment based on his disability
(mental) and in reprisal for prior EEO activity. On October 28, 2024, the Agency
issued its FAD finding that Complainant established that: (1) he was denied
reasonable accommodation; (2) he was subjected to per se reprisal; (3) he was
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.

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subjected to a hostile work environment based on disability and reprisal; and (4) the
Agency’s actions forced him to resign. The FAD awarded equitable relief, including
reinstatement and backpay. On February 26, 2025, Complainant filed this appeal
seeking compliance with the Agency’s order with respect to reinstatement.2
Specifically, with respect to reinstatement, the Agency ordered the following:
Retroactive Reinstatement
Pursuant to 29 C.F.R. Section 1614.501(c)(5), within 10 business days
of receipt of this Final Agency Decision, the Agency shall offer to
reinstate 	Complainant 	to 	the 	position 	of 	Supervisory 	Orthotist-
Prosthetist, GS-0667-12, at the Central Fabrication Unit with the
Prosthetics 	and 	Sensory 	Aids 	Service 	Line 	at 	the 	VISN 	20 	in
Vancouver, Washington, or a substantially equivalent position that is
agreeable to Complainant.
Complainant is ordered to either accept or decline the offer of the
position within 10 business days of receipt of the offer. In the event
Complainant fails to either accept or decline the offer of the position
within 20 business days, the offer of reinstatement shall expire at 5:00
p.m. EST on the 20th business day.
On or about November 21, 2014, Complainant was offered the position of
Supervisory Orthotist-Prosthetist, GS-0667-12. Complainant was given until close
of business 5:00 p.m. PST on December 20, 2024, to either accept or decline the
offer.
The record shows that on December 4, 2024, Complainant emailed the Chief, Policy,
Compliance & Oversight, (C&O Chief), in the Agency’s Office of Resolution
Management, Diversity & Inclusion requesting assistance.3 On December 5, 2024,
C&O Chief contacted the VISN 20 EEO Manager (EEO Manager 1) and the VISN
20 Supervisory Human Resources Specialist (SHR Specialist 1) and copied the
Puget Sound Medical Center EEO Manager (EEO Manager 2), and the Veterans
Health Administration, Workforce Management, EEO Program Manager (EEO
2 Complainant also argued that since the Agency failed to comply with its order with
respect to reinstatement, its backpay calculations are not accurate.
3 C&O Chief is responsible for monitoring compliance with the Agency’s FADs.

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Manager 3). C&O Chief requested that the VISN extend the deadline they had set
for Complainant to respond to the job offer until after C&O Chief had time to speak
with him and respond to any questions or concerns. They agreed to extend the cut-
off date.
On December 10, 2024, C&O Chief spoke with Complainant and learned that the
job offer offered by the VISN would place him back under the same supervisor
(Harassing 	Supervisor) 	who 	had 	created 	a 	hostile 	work 	environment 	for
Complainant and caused his constructive discharge. Complainant would have
accepted the position had he not been supervised by Harassing Supervisor.
On December 13, 2024, C&O Chief sent an email to EEO Manager 2 and EEO
Manager 3, asking for assistance with the reinstatement offer by the VISN to
Complainant. C&O Chief explained that placing an employee back under the very
same supervisor who created a hostile work environment and who caused the
employee to resign would be seen as reprisal. C&O Chief further explained that
placing 	Complainant 	back 	under 	the 	same 	supervisor 	would 	not 	only 	put
Complainant in a position where he would feel threatened and retaliated against for
his prior EEO activity, but the facility would be putting themselves at risk of another
complaint. C&O Chief provided them with options such as (1) having Complainant
report directly to the second level supervisor instead of Harassing Supervisor; (2)
having Complainant report to a different supervisor; or (3) reassigning Harassing
Supervisor to a position that did not supervise Complainant. On December 16, 2024,
EEO Manager 3 emailed C&O Chief to say that he had spoken with SHR Specialist
1 and that he “understands the concerns. He is actively working with leadership to
try to find a resolution.”
On December 18, 2024, EEO Manager 1 sent an email to SHR Specialist 1 stating,
“I advise that Management, HR, and OGC review this per [C&O Chief’s] concerns
-and recommendations - below and then respond as soon as possible.” On December
18, 2024, C&O Chief emailed Complainant stating: “I have been in contact with the
facility, and the EEO manager and HR understand my concerns (which are your
concerns) and I am just waiting for them to get back to me.” On December 24, 2024,
Complainant emailed C&O Chief stating: Did you get a response from the VA yet?
Is there someone I can contact to begin working on my reinstatement?” C&O Chief
responded: “I haven’t heard back yet, but with the holidays, I wouldn’t expect to

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hear anything until after the 1st. When I get back on Thursday, I’ll check and see if
there is someone at the facility I can give as a POC for your reinstatement.”4
On December 26, 2024, C&O Chief received an email from the VISN 20 Supervisor,
Human Resources Specialist (SHR Specialist 2), indicating that he was filling in for
SHR Specialist1 and that his supervisor, VISN 20 Chief of Employee and Labor
Relations (ELR Chief) wanted him to inform C&O Chief that Complainant had
neither accepted nor declined the offer which, according to SHR Specialist 2, had
expired. On December 27, 2024, C&O Chief emailed SHR Specialist 2 back and
asked him to refer to the December 16, 2024, email from EEO Manager 3. On
December 	30, 	2024, 	C&O 	Chief 	emailed 	EEO 	Manager 	3 	requesting 	any
information regarding a resolution of the offer made to Complainant.
EEO Manager 3 replied, “We shared our concerns with EEO Manager 1 and have
not received any further correspondence. His “out of office” states he should be
returning today. Hopefully he can share their decision.” EEO Manager 1 replied:
“Adding [SHR Specialist 1] for an update on Agency Management status regarding
[Complainant’s] supervisory chain and placement of [Complainant] directly under
the same RMO named in the complaint. Of note (see attached) – ‘[Complainant] did
not accept or decline the offer of the position, and on December 20, 2024, at 5:00
p.m. EST the offer expired.’ The Agency is working with OGC on next steps. [SHR
Specialist 1] – please advise if you have further updates.
On January 7, 2025, C&O Chief received an email from Complainant inquiring as
to whether he had received any information from the VISN. C&O Chief responded
that he had not received any new information from the VISN and if he did not receive
a response from EEO Manager 1 by January 8, 2025, he would seek assistance from
the Director.
Between January 7, 2025, and January 24, 2025, Complainant and C&O Chief
remained in contact but there had been no new information from the VISN. On
January 24, 2025, C&O Chief wrote to Complainant in part: “I understand the
Agency’s non-compliance with the reinstatement portion of the order has caused you
undo concern and a considerable amount of stress.
4 There had been no contact from VISN since EEO Manager 3’s December 16, 2024,
email.

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I will do my best to get this issue in front of the VISN Director early next week so
that we can see some movement in the right direction.”
On January 29, 2025, C&O Chief emailed the Financial Services Center Analyst and
explained the situation and advised that he was requesting assistance of the VISN
Director in resolving this issue. On January 30, 2025, C&O Chief emailed
Supervisory HR Specialist, Technical Review for VISN 20 (SHR Specialist 3) and
spoke about the issues and concerns. On January 31, 2025, C&O Chief sent an email
to the VISN 20 Director asking for her assistance with the reinstatement issue. On
February 3, 2025, C&O Chief sent an email to Complainant advising him of his
request to the VISN 20 Director.
On February 5, 2025, C&O Chief received an email from the Deputy Human
Resource Officer for VISN 20, advising that the VISN had fully complied with the
FAD and had now moved on by hiring another individual for the position. C&O
Chief replied to Deputy HR Officer stating:
As you have outlined below, the Agency is not in compliance with the
OEDCA FAD. It is unreasonable to expect Complainant to accept an
offer of reinstatement back to a position where he would have to work
for 	the 	very 	same 	supervisor 	who 	created 	such 	a 	hostile 	work
environment that [Complainant] felt forced to resign.
If the Agency is not able to find a way for [Complainant] to be
reinstated to his former position without reporting to [Harassing
Supervisor], then the Agency is obligated to find a substantially
equivalent position that is agreeable to the Complainant. The burden is
on the Agency to find such a position. The substantially equivalent
requirement includes considerations related to pay, benefits, status,
taxes, health care, career promotion potential, the nature of the duties,
the organizational structure or other such factors.
C&O Chief also advised that he would not accept the compliance as closed or
complete until they were able to find an acceptable position for Complainant.
On February 7, 2025, C&O Chief advised Complainant that VISN 20 had indicated
that they had no positions that did not report to his prior supervisor and that they had
already filled the position that had been offered him.

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C&O Chief also advised Complainant that he could file a petition for enforcement
if he felt that the Agency was not complying with the FAD.
On June 12, 2025, C&O Chief emailed Complainant and stated in part:
Unfortunately, our discussion with VISN 20 leadership did not result in
any change to their position. On a more positive note; however, the final
decision for your compensatory damages was issued today. I am going
to contact the VISN and advise them to issue that payment immediately.
I will let you know how that turns out. I do have one question though.
Had I not advised you to wait until I could get them to change your
reporting official, would you have accepted the job?
[emphasis added].
Complainant replied on June 17, 2025, stating:
To answer your question, had I known that the VA would not be
required to uphold the decision nor would be required to provide me
with protections, and given the prospect of either remaining homeless
or returning to work until I could figure out how to prevent further
harm, I would likely have accepted the job. Now, I’m just screwed. I
can’t find work, I have a huge gap on my resume that hiring managers
are immediately worried about, and I can’t do anything to change that.
I have no idea what I will do. I know you meant well, and I do
appreciate your attempt to help. Thank you for your help and time.
ANALYSIS
Where a finding of discrimination is made, a complainant is entitled to be made
whole for injury due to the agency’s discriminatory action. Albemarle Paper Co. v.
Moody, 422 U.S. 405, 418 (1975). This Commission's regulations, interpreting the
anti-discrimination laws, require that when an agency or the Commission finds that
an employee has been discriminated against, the agency shall provide “full relief”,
to include “an unconditional offer to each identified victim of discrimination of
placement the person would have occupied but for the discrimination....” 29 C.F.R.
§1614.501(a)(3); Sheth v. Department of the Army, EEOC Petition No. 04A100011
(Mar. 8, 2001); Bernard v. Department of Veterans Affairs, EEOC Petition No.
04960029 (Jun. 4, 1998); Kerschner, Jr. v. Department of Labor, EEOC Appeal No.

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01933023 (Mar. 15, 1994); Sandra Kretschmar v. Dep’t. of the Navy, EEOC Appeal
No. 04A20032 (Sep. 4, 2003).
The remedy phase of an action seeks to turn back the clock to the moment before
discrimination occurred, and, if possible, to move forward from that point without
discrimination. See Michael Miller, et. al. v. Dep’t. of the Interior, EEOC Request
No. 05980293 (Sep. 2, 1999). We note that the burden is on the agency to establish
that the position offered to the complainant is in fact substantially equivalent to the
position lost. Rai v. Dep’t. of the Interior, EEOC Appeal No. 01901186 (May 17,
1990).
The record shows that the Agency offered Complainant reinstatement into the
position he previously occupied under the same supervisor who was responsible for
the hostile work environment and his constructive discharge. The Agency asserts
that it met its obligations under the FAD’s remedy award, since the order did not
mention that the offer of reinstatement could not be under the same supervisor. We
disagree. The record shows that the job offer was not an unconditional offer of
placement to the position he would have occupied but for discrimination. Rather, it
was an offer placing Complainant in the same position of harm he suffered prior to
the FAD. Hence, the offer of reinstatement did not remedy discrimination and was
not unconditional. Accordingly, we find the Agency’s offer of reinstatement
inadequate and fails to comply with the FAD.5 As the Agency has yet to comply
with its offer of reinstatement, backpay calculations are premature.
Therefore, we find that the Agency has not complied with the terms of the FAD with
respect to Complainant’s reinstatement and its obligation to provide backpay. We
REMAND this matter to the Agency for further action with regard to the below
identified provisions.
5 We also find that Complainant reasonably relied on C&O Chief’s communications
with him and reasonably believed that the deadline to accept or decline the offer of
reinstatement was on hold while C&O Chief attempted to resolve the question of
who would be supervising Complainant. In addition, we find the Agency acted in
bad faith by offering Complainant’s position to another person while the issue of
Complainant’s supervision remained pending.

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ORDER
Retroactive Reinstatement
Pursuant to 29 C.F.R. Section 1614.501(c)(5), within 10 business days of receipt
this Decision, the Agency shall offer to reinstate Complainant to the position of
Supervisory Orthotist-Prosthetist, GS-0667-12, at the Central Fabrication Unit
(CFU) with the Prosthetics and Sensory Aids Service Line at the VISN 20 in
Vancouver, Washington, or a substantially equivalent position that is agreeable to
Complainant.
Complainant is ordered to either accept or decline the offer of the position within
10 business days of receipt of the offer. In the event Complainant fails to either
accept or decline the offer of the position within 20 business days, the offer of
reinstatement shall expire at 5:00 p.m. EST on the 20th business day.
Backpay
The Agency shall provide Complainant with back pay (less interim earnings/the pay
differential if any), interest, and any and all benefits or training that he would
otherwise have earned or received but for the prohibited discrimination. Where
applicable, back pay specifically includes retroactive tax-deferred contributions to
Complainant's TSP account and any earnings which would have accrued during the
relevant period.
The time period used to compute the back pay award shall begin on January 8, 2024,
the effective date of Complainant’s resignation (constructive discharge) out of his
Supervisory Orthotist-Prosthetist, GS-0667-12, position, up to the date that the
Complainant commences employment in his new position, or the date he declines
the offer of employment.
Complainant is required to assist management in calculating the amount of back pay
by providing any information reasonably requested by management, including
evidence of interim earnings, as necessary to implement the relief ordered herein.
Tax Consequences
Complainant is further entitled to reimbursement for adverse tax consequences,
inclusive of any additional tax liability attributable to receiving a lump-sum back
pay award. The tax-liability calculation must be based on the taxes Complainant
would have paid if he had received the back pay aware as regular salary during the
back pay period.

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In support of a claim for compensation for adverse tax consequences, Complainant
must submit evidence showing the difference between the taxes paid on the lump-
sum back pay payment and the taxes he would have paid had the salary been earned
over time. Complainant must provide exact and detailed calculations showing the
amount of any additional tax liability that he claims as damages due to the lump-
sum back pay award.
Duty to Provide Complainant with an Effective Reasonable Accommodation
Should Complainant accept the above offer of reinstatement to the Supervisory
Orthotist-Prosthetist position, or a substantially similar position, the Agency must
place him in the position and immediately engage in the interactive process with
Complainant to determine which reasonable accommodations are needed for
Complainant to perform the essential functions, specifically considering part-time
telework with a flexible work schedule.
If Complainant cannot be accommodated in the Supervisory Orthotist-Prosthetist
position, or a substantially similar position into which he is placed, the Agency must
immediately offer Complainant the accommodation of last resort, i.e., to search for
a suitable position to which he may be reassigned. During this period, the Agency
must provide Complainant with an effective interim reasonable accommodation.
If the Agency locates a suitable vacant, funded position in which Complainant can
perform the essential job functions within his medical restrictions with or without an
accommodation, the Agency shall offer this position to Complainant, in writing.
Restoration of Leave
Within sixty (60) days of the date of this Decision, the Agency shall restore any
leave (annual, sick, and/or leave without pay) used by Complainant because of the
discrimination and harassment to which he was subjected. Complainant must
provide any relevant information to assist the Agency in determining whether he
used leave due to the discrimination and harassment, and if so, how many hours are
to be restored. The Agency must provide Complainant with a written explanation of
its determination. If Complainant declines the offer of reinstatement, he must receive
a lump sum payment for any leave he is entitled to have restored.
The Agency is further directed to submit a report of compliance in digital format as
provided in the statement entitled “Implementation of the Commission's Decision.”
The report shall be submitted via the Federal Sector EEO Portal (FedSEP). See 29
C.F.R. § 1614.403(g).

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Further, 	the 	report 	must 	include 	supporting 	documentation 	of 	the 	Agency's
determination of Complainant's entitlement to equitable relief and other benefits due
Complainant, including evidence that the corrective action has been implemented.
IMPLEMENTATION OF THE COMMISSION’S DECISION (K0719)
Under 29 C.F.R. § 1614.405(c) and §1614.502, compliance with the Commission’s
corrective action is mandatory. Within seven (7) calendar days of the completion of
each ordered corrective action, the Agency shall submit via the Federal Sector EEO
Portal (FedSEP) supporting documents in the digital format required by the
Commission, referencing the compliance docket number under which compliance
was being monitored. Once all compliance is complete, the Agency shall submit via
FedSEP a final compliance report in the digital format required by the Commission.
See 29 C.F.R. § 1614.403(g). 	The Agency’s final report must contain supporting
documentation when previously not uploaded, and the Agency must send a copy of
all submissions to the Complainant and his/her representative.
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.
Failure by an agency to either file a compliance report or implement any of the orders
set forth in this decision, without good cause shown, may result in the referral of this
matter to the Office of Special Counsel pursuant to 29 C.F.R. § 1614.503(f) for
enforcement by that agency.
ATTORNEY'S FEES (H1125)
If Complainant has been represented by an attorney (as defined by 29 C.F.R. §
1614.501(e)(1)(iii)), they are entitled to an award of reasonable attorney's fees

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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 Sector -- within thirty (30) calendar days of receipt
of this decision. The Agency shall then process the claim for attorney's fees in
accordance with 29 C.F.R. § 1614.501.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1125)
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 Sector
(OFS) 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 their request for reconsideration, and any statement or
brief in support of their request, via the EEOC Public Portal, which can be found at
https://publicportal.eeoc.gov/Portal/Login.aspx. 	Alternatively, Complainant can
submit their request and arguments to the Director, Office of Federal Sector, 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 OFS receives it by mail within
five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604.

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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 their 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(f).
COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (R0124)
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 their 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.

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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:
T. Gimbrere __________ Chaudhry’s signature
T. Gimbrere, Acting Director
Office of Federal Sector
September 30, 2026
Date