Bart M.,1 Complainant,v.Jeff B. Sessions, Attorney General, Department of Justice (Drug Enforcement Administration), Agency.

Equal Employment Opportunity Commission

Nov 2, 2018

0120160870 (E.E.O.C. Nov. 2, 2018)

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

Bart M.,1
Complainant,

v.

Jeff B. Sessions,
Attorney General,
Department of Justice
(Drug Enforcement Administration),
Agency.

Appeal No. 0120160870

Agency No. DEA201201042

DECISION

Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or
Commission) from the Agency’s December 8, 2015, determination (FAD) that it was in
compliance with an April 24, 2015, decision awarding him remedial relief. For the reasons that
follow, we find that the Agency has complied with its April 24, 2015 decision, and therefore, we
AFFIRM the FAD.

ISSUES PRESENTED

Whether the Agency failed to comply with its April 24, 2015, final decision when Complainant
was not provided a higher rate of interest on his compensatory damages award; offered a transfer
to Oakland; and not provided an additional amount of attorney fees.

BACKGROUND

On May 6, 2014, the Agency found that Complainant, a DEA Special Agent working at the
Agency’s facility in Dubai, United Arab Emirates, had been subjected to a hostile work
environment based on race and reprisal. Subsequently, the Agency issued an April 24, 2015,
decision awarding Complainant the following relief:

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.
0120160870

2
(1) $65,000.00 in non-pecuniary damages;

(2) 40 hours of restored sick leave;

(3) Reassignment as a criminal investigator assigned to the Oakland Office; and

(4) $38,361 in attorney fees and $447.89 in costs.

On August 6, 2015, Complainant notified the Agency that, in his opinion, it had not fully
complied with the April 24, 2015, decision. Specifically, Complainant alleged that the Agency
had failed to: (a) pay him the $65,000 in a timely manner, (b) transfer him to Oakland before he
executed orders for Dubai, and (c) pay his first attorney the total amount to which he was
entitled. Complainant further alleged that he incurred an additional $3,348.50 in legal fees in
attempting to get the Agency to comply with the April 24, 2015, decision. Complainant sought
interest on the $65,000 non-pecuniary damages award because the Agency was late in paying, a
fully-paid immediate transfer from Dubai to Oakland because the Agency failed to reassign him
to the Oakland office before he went to Dubai, and an additional award of $6,086.50 in
attorney’s fees for a second law firm.

Interest Payment

Complainant contends that the Agency did not pay him the non-pecuniary damages owed until
August 6, 2015, i.e., 74 days after it was due. The Agency conceded the late payment and was
willing to pay Complainant interest. Complainant argued that the interest rate should be
calculated based on the rate of 1% per month, which, according to Complainant, is the rate of
interest that Agency employees who owe money to the Agency must pay. The total owed would
be $1,603.33. Alternatively, Complainant argued that the rate should be 2.14% per year, the rate
paid on a 10-year Treasury bill for a total payment of $285.82. The Agency, however, argued
that the rate of interest should be .23% per year, which was required by 28 U.S.C. §1961, i.e., the
rate of interest on the weekly average one year constant maturity Treasury yield. According to
the Agency, based on the applicable interest rate for the week of May 22, 2015, Complainant
was entitled to $30.34 in interest.2

Transfer to Oakland

Complainant maintained that the Agency failed to transfer him back to the Oakland office as
provided in the April 24, 2015 decision, and instead compelled him to go through with the
transfer he had previously requested to Dubai, United Arab Emirates. There is no dispute that in
June 2014, ten months before the issuance of the April 24, 2015 decision, Complainant
voluntarily accepted a tour of duty in the Dubai office that was scheduled to begin in June 2015.

2 Complainant should have received his payment by May 24, 2015.
0120160870

3
Complainant maintained that, on June 5, 2015, he spoke to the Agency’s Counsel, and asked that
he be transferred from the San Jose Office to the Oakland Office, rather than have the Agency
execute his orders to Dubai. The Agency’s counsel, A-1, in a letter, denied that the subject of
Complainant’s transfer back to Oakland was discussed. According to A-1, they discussed a
settlement proposal from Complainant that, among other things, would allow him to receive the
posting of his choice after his assignment in Dubai was over. In fact, the Agency maintained
that, while in Dubai, Complainant repeatedly asked that he be guaranteed a post of his choosing
after the completion of his tour of duty in Dubai.

The record contains June 21 - 23, 2015 email exchanges between Complainant and Agency
officials, where Complainant stated that, on June 5, 2015, he had a phone conversation in which
he made a “global” settlement offer to resolve both the instant complaint and a subsequent
discrimination claim. According to the emails, Complainant stated that his June 5, 2015 offer
was that he would accept $65,000 in compensatory damages, “a duty station of [his] choosing,”
and, in return, he would not pursue either complaint further. The Agency contends that
Complainant’s proposal made clear that he intended to go to Dubai and only wanted to firm up
plans for his new post once the Dubai tour ended.

The Agency argued that there was no evidence that Complainant requested to be transferred to
Oakland before he left for Dubai, and that between the April 2015 decision and Complainant’s
mid-June 2015 departure for Dubai, the parties agreed on all aspects of the relief; however,
according to the Agency, they never discussed the issue of the transfer to Oakland. The Agency
argued that Complainant failed to explain why he did not raised the issue until, by his account,
five (5) days before his scheduled departure.

The Agency contends that because Complainant accepted a voluntary transfer to Dubai, he was
no longer entitled to a transfer back to the Oakland office. The Agency further argued that there
was no corroborative evidence that Complainant requested to be transferred from the San Jose
office to the Oakland office before he left for Dubai. Given that the Agency found that it
retaliated against Complainant when he was initially transferred from Oakland to San Jose, the
Agency maintained that “make whole” relief was to place Complainant in the Oakland office,
where he would have stayed absent the retaliation, which was ordered. The Agency argued that
even though Complainant had the clear option of transferring to Oakland once the April 2015
decision was issued, he did not make such a request and instead indicated that he planned to
report to Dubai and subsequently did so. At that point, the Agency’s “make whole” obligation
ceased, according to the Agency.

The Agency further stated that after Complainant voluntarily and willingly took up his post in
Dubai, he asked for an immediate return to Oakland. In doing so, he asked for relief that went
beyond the statutory obligation to “make him whole” that the remedial order imposed on the
Agency.

0120160870

4
According to the Agency, it is not legally obligated to comply with Complainant’s request, and
Complainant was not, and is not, entitled under the April 2015 decision to demand a transfer to
Oakland now, or at any future date, after transferring voluntarily to a different location of his
choosing and thereby bypassing the ability the remedial order gave him to demand to be
transferred back to Oakland from San Jose.

The Agency maintained that to provide such a remedy to Complainant would go well beyond
what Complainant was properly provided as “make whole” relief, and that the relief ordered in
this case was not intended to, nor could it grant Complainant an open-ended right to transfer to
Oakland at any time in the future. Accordingly, Complainant, the Agency maintained, is not
entitled to a reassignment from Dubai to Oakland, as that transfer simply was not part of the
remedial relief ordered in this case.

On appeal, Complainant, raised two pertinent arguments regarding this issue. He first argued that
a transfer back to Oakland would not have been make whole relief because of the three (3) years
of retaliation that he suffered in San Jose. According to Complainant, “I argue that because the
San Jose transfer was ruled as retaliation, that everything negative that happened as a direct
result of the retaliatory transfer to San Jose is also a fruit from that retaliation.” Complainant
further stated that, “[d]ue to the shear length of time (3 years) I was subjected to the
retaliatory/punitive transfer to San Jose my argument cannot be negated. It appears as though the
[the Agency] has made the determination that Oakland is “make whole” as though I did not
spend three years living with the retaliatory transfer while waiting for their decision.”

Complainant’s second argument on appeal is that the Agency did not comply with its April 2015
Order to transfer him back to Oakland. Complainant also stated, in response to the Agency’s
contention that he never indicated that he still wanted to go to Oakland in the period after the
April 24, 2015, decision was issued and his departure for Dubai, that:

I will add that I have previously documented my career goals are to get to a DEA
office I want to be at. And as documented on numerous occasions in the past I was
attempting to transfer out of Oakland, that transfer was delayed due to discrimination
and retaliation, putting me in a worse position to obtain my career goals. Then, I took
a less desirable spot, Dubai, as a means of escaping the retaliation of San Jose and
hopefully in 3 years obtaining my career goals of ending up in an office or part of the
country that I want. When I received [the April 24, 2015, decision] granting me
Oakland, I had 43 days before I had to depart for Dubai, a transfer that had been over
a year in the making. I had to weight my career options of whether or not being in
Oakland or transferring to Dubai would allow me to reach my career goals the
quickest. Ultimately, it would have been Oakland; and in the absence of
discrimination and retaliation, should have already been Oakland.

0120160870

5
Attorney Fees

Complainant asserts that his previous attorney, PA, was not paid in full because the Agency only
paid him $14,000 instead of the $16,738, which was awarded in the April 24, 2015, decision.

The Agency indicated that, on September 3, 2014, PA entered into a settlement agreement where
he agreed to accept $14,000 as full and final settlement of all claims for attorney’s fees and costs
in connection with this matter. The Agency stated that, as a result of the settlement agreement,
PA was not entitled to any additional payment from either the Agency or Complainant.
Fees for the New Law firm

Complainant also alleged that he incurred an additional $3,348.50 in attorney’s fees and costs
associated with this matter after retaining a new attorney, NA. Specifically, Complainant asserts
that he incurred the additional expenses because the Agency failed to comply with the April 24,
2015, decision, and he needed to try to get it to comply with the decision; therefore, he retained a
different counsel.

The Agency contends, based on the fee information that was submitted, that Complainant was
not entitled to a reimbursement of the $3,348.50 in attorney’s fees. According to the Agency,
NA never filed an appearance in this case with the Agency. Moreover, the Agency contends that
although NA provided detailed billing records, the records indicate that Complainant sought
legal assistance from NA regarding the viability of a lawsuit in United States District Court
regarding the damages and fees awarded in this case. There are no billing entries that indicate
that NA was involved with Complainant’s efforts to get the Agency to fulfill its obligations to
Complainant under the April 24, 2015, decision. Therefore, the Agency argues Complainant and
NA are not entitled to be paid $3,348.50 in attorney’s fees by the Agency.

Complainant contends that he engaged NA in anticipation of having to take his case further to
obtain the relief to which he believed he was entitled.

ANALYSIS

EEOC regulations provide that a final agency action that has not been the subject of an appeal
shall be binding on the parties. 29 C.F.R. § 1614.504(a). The regulations further provide that if a
complainant believes that an Agency has not complied with the terms of the final decision, that
he or she shall so advise the Agency within thirty days of the date on which the complainant
knew or should have known of the non-compliance. Id. If the complainant is not satisfied with
the Agency's response, he or she may appeal to the Commission for determination as to whether
the Agency is in compliance with the terms of its final decision. 29 C.F.R. § 1614.504(b).

0120160870

6
Interest Payment

We find that Complainant has not established that he was entitled to interest in an amount greater
than that provided by the Agency. Although Complainant argues that the rate of interest and the
amount of interest should be higher, and provided two examples of rates and amounts that he
would accept, he did not show that the Agency was required to use these rates or that the rate the
Agency used was improper.

Transfer to Oakland

The April 24, 2015, decision provided, in pertinent part, that:

Complainant is awarded the right to be reassigned as a Criminal Investigator
(Special Agent) back to the Oakland office. DEA shall reassign Complainant to
the Oakland office, if it is amenable to Complainant, as promptly as possible.

On appeal, Complainant argued that a transfer back to Oakland would not have been make whole
relief because of the three (3) years of retaliation that he suffered in San Jose, and that everything
negative that happened as a direct result of the transfer to San Jose was retaliatory. We find that
a fair reading of these comments and others would indicate that Complainant believes he was
entitled to greater amount of compensatory damages; however, Complainant did not appeal the
compensatory damage amount that was awarded to him, therefore, we cannot address a claim for
an additional amount.

After reviewing both the Agency’s, and Complainant’s arguments, we find that Complainant has
not established that the Agency violated the terms of its April 24, 2015, decision with respect to
his transfer back to Oakland. The decision clearly stated that he had the right to be reassigned if
it was amenable to him. Complainant, however, made clear that when he received the Agency’s
decision, “granting him Oakland,” he had 43 days before he had to depart for Dubai. During that
time, Complainant stated that he “had to weight [his] career options of whether or not being in
Oakland or transferring to Dubai would allow [him] to reach [his] career goals the quickest.”
There is no corroborative evidence that, prior to leaving for Dubai, Complainant ever exercised
his right to be reassigned to Oakland. The record appears to indicate that he made a decision that
going ahead with the transfer would allow him to reach his career goals faster than going back to
Oakland. Accordingly, we do not find that the Agency failed to comply with its order with regard
to this issue.3

3 Notwithstanding our decision above, we find that the Agency should have engaged in a more
effective process with Complainant to address this issue before he left for Dubai. The Agency
0120160870

7

Fees for PA

According to Complainant, “I withdraw any request for fees for [PA].” Complainant indicated
that he was not informed of the settlement agreement.

Fees for NA

We find that Complainant is not entitled to additional attorney’s fees because he has not
established that he is a prevailing party. The Commission has determined that Complainant’s
non-compliance claim was unsuccessful. Accordingly, he is not entitled to additional relief in
the form of attorney fees for his new attorney.

CONCLUSION

Accordingly, we find that the Agency has complied with its April 24, 2015 Order, and we
AFFIRM the Agency’s December 8, 2015 FAD. The Agency is ordered to take the following
remedial action.
ORDER

To the extent that it has not already done so, the Agency, within one hundred and twenty days
(120) of the date of this decision, shall:

Provide Complainant the amount of $30.34 in interest on his compensatory
damages award.

IMPLEMENTATION OF THE COMMISSION’S DECISION (K0618)

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).

maintained, and email exchanges indicate, that between May 2015 and Complainant’s mid-June
2015 departure for Dubai, the parties discussed many aspects of the April 2015, decision’s relief.
We find it inconceivable that the issue of Complainant’s right to request a reassignment back to
Oakland was never raised by either party, but as indicated above there is no such evidence in the
record.
0120160870

8
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.

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
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. A party
shall have twenty (20) calendar days of receipt of another party’s timely request for
reconsideration in 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). All requests and arguments must be submitted to the
Director, Office of Federal Operations, Equal Employment Opportunity Commission.
Complainant’s request 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
agency’s request must be submitted in digital format via the EEOC’s Federal Sector EEO Portal
(FedSEP). See 29 C.F.R. § 1614.403(g). The request or opposition must also include proof of
service on the other party.
0120160870

9
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:

_________________________ M. Hadden’s signature
Carlton M. Hadden, Director
Office of Federal Operations

November 2, 2018
Date