Bertie T.,1 Petitioner,v.Ryan D. McCarthy, Secretary, Department of the Army, Agency.

Equal Employment Opportunity Commission

Jan 31, 2020

2019004324 (E.E.O.C. Jan. 31, 2020)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Bertie T.,1 Petitioner, v. Ryan D. McCarthy, Secretary, Department of the Army, Agency. Petition No. 2019004324 Previous Petition No. 0420160028 Appeal No. 0720140011 Hearing No. 570-2008-00536X Agency No. ARMEDCOM07JAN00719 DECISION ON A PETITION FOR ENFORCEMENT The Equal Employment Opportunity Commission (EEOC or Commission) docketed a petition for enforcement on its own motion to examine the enforcement of an Order set forth in EEOC Petition No. 0420160028 (January 30, 2017). See 29 C.F.R. § 1614.503. BACKGROUND At the time of events originally giving rise to this matter, Petitioner worked as a Director at the Walter Reed Army Medical Center, Civilian Personnel Advisory Center, in Bethesda, Maryland. On July 12, 2007, Petitioner filed an EEO complaint alleging the Agency discriminated against her on the bases of race (Black), sex (female) and in retaliation for prior protected EEO activity 1 This case has been randomly assigned a pseudonym which will replace Petitioner’s name when the decision is published to non-parties and the Commission’s website. 2019004324 2 when she was subjected to a hostile work environment through the actions of a subordinate employee and management’s response to it. Following its investigation into the claim, Petitioner requested a hearing before an EEOC Administrative Judge (AJ). Following a hearing held in April 2010, the AJ issued a decision on June 28, 2013, concluding Complainant had proven her sex discrimination claim. The AJ ordered the Agency to pay Complainant $65,000 in compensatory damages, pay her the monetary value of 543.5 hours of sick leave used related to the discrimination, and award her reasonable attorney’s fees and costs. The AJ also ordered the Agency to provide training and consider disciplinary action against the named officials responsible for the discrimination. Moreover, the AJ indicated that for those responsible agency officials no longer employed by the Agency but still in federal employment, a copy of the AJ’s decision should be forwarded to their current employer. The Agency issued its final order and filed an appeal. In its decision, the Agency did not challenge the finding of discrimination or much of the remedial order. However, the Agency appealed the order to pay Complainant for the monetary value of sick leave rather than restoring it to her leave balance, and the requirement that it send a copy of the AJ’s decision to responsible management officials’ new employers. In Appeal No. 0720140011 (September 22, 2015), the Commission modified the AJ’s remedial orders and the Agency was ordered to: 1. Provide Petitioner $65,000 in non-pecuniary compensatory damages. 2. Restore 543.5 hours of sick leave to Petitioner and file a request on her behalf with the Office of Personnel Management to recalculate her annuity based on any additional service credit she may be entitled to as a result of the additional unused sick leave balance.2 3. Pay Petitioner $114,322.61 for attorney’s fees and $886.18 for legal costs. 4. Conduct training for the employees who were found to have violated Title VII. The Agency shall address these employees’ responsibilities with respect to harassment and unlawful retaliation. 5. Consider disciplinary action against the employees who have subjected Petitioner to harassment. The Agency shall report its decision. If the Agency decides to take disciplinary action, it shall identify the action taken. If the Agency decides not to take disciplinary action, it shall set forth the reason(s) 2 The decision noted that there was some indication in the record that Petitioner had been reemployed by the Agency as a retired annuitant. Therefore, the decision stated that if she was still in this status, the Agency should allow her to elect, if she wishes, to have the restored sick leave credited to her current position rather than applying it to her retirement annuity. 2019004324 3 for its decision not to impose discipline. Moreover, the Agency shall place a copy of the AJ’s decision in the official personnel file of each of the employees (identified in the AJ’s decision) who have been found to have subjected Petitioner to discriminatory or retaliatory harassment. 6. The Agency shall complete all of the above actions within ninety (90) calendar days from the date on which the decision becomes final. 7. The Agency shall submit a report of compliance to the [EEOC] Compliance Officer. Based on the Agency’s failure to respond to requests for documentation concerning compliance with these orders, the Commission opened a petition for enforcement on June 20, 2016. In Petition No. 0420160028 (January 30, 2017), the Commission found that the Agency had not submitted any documentation showing whether, when, or how it had complied with the corrective actions as set forth in EEOC Appeal No. 0720140011 and repeated the remedial orders in that appellate decision in their entirety. The Agency was also cautioned that failure to comply could result in the measures detailed in 29 C.F.R. § 1614.503. The matter was docketed for compliance monitoring as Compliance No. 0620150255 on January 31, 2017. However, the Agency continues to refuse to establish that it has complied with the orders issued in EEOC Appeal No. 0720140011 or Petition No. 0420160028, or to respond to the related inquiries from the EEOC. ANALYSIS AND FINDINGS EEOC Regulations 29 C.F.R. § 1614.502(a) and § 1614.503 provide that relief ordered in a final3 EEOC decision is “mandatory and binding” on the agency. The regulations also provide that, on behalf of the Commission, its Office of Federal Operations (OFO) “shall take all necessary action to ascertain whether the agency is implementing the decision of the Commission.” Finally, the regulations provide that failure to implement EEOC orders will subject the agency to a variety of enforcement actions, including the issuance of a notice to show cause to the head of the agency, a referral to the Office of Special Counsel, and/or judicial enforcement. Here, for over four years, the Agency has failed to report its compliance with the Commission’s remedial orders in Appeal No. 0720140011 or Petition No. 0420160028. Moreover, the Agency has not submitted any statement of its position or explanation in response to notification of the docketing of the instant petition for enforcement. 3 Here, EEOC Appeal No. 0720140011 is the Commission’s final decision as no requests for reconsideration were filed. 2019004324 4 Even more concerning, the Agency’s refusal to report on its compliance with the Commission’s order in this case appears to be part of a larger, ongoing pattern of similar failures. EEOC’s OFO is currently faced with multiple cases involving the Agency where it is unable to effectively fulfill its regulatory responsibility to monitor compliance with its orders because the Agency has failed to provide the required reports and/or evidence of its compliance. See EEOC Petition Nos. 2019001866, 2019004318, 2019004319, 2019004321, 2019004322, 2019004323, 2019004324, 2019004325, 2019004327, 2019004328, 2019004329, 2019004330, 2019004332, 2019004334, 2019004335, 2019004336, 2019004337, 2019004338, and 2019004339. Based on the Agency’s failure to provide evidence of its compliance with EEOC’s order in Appeal No. 0720140011 or Petition No. 0420160028, we still cannot conclude that it is in compliance. The Commission directs the Agency to immediately take action consistent with the Order below. ORDER 1. Within thirty (30) calendar days of the date this decision is issued, the Agency shall provide EEOC with a full compliance report containing adequate evidence that it has fully complied with the following Order set forth in Appeal No. 0720140011/Petition No. 0420160028: a. Provide Petitioner $65,000 in non-pecuniary compensatory damages. b. Restore 543.5 hours of sick leave to Petitioner and file a request on her behalf with the Office of Personnel Management to recalculate her annuity based on any additional service credit she may be entitled to as a result of the additional unused sick leave balance. c. Pay Petitioner $114,322.61 for attorney’s fees and $886.18 for legal costs. d. Conduct training for the employees who were found to have violated Title VII. The Agency shall address these employees’ responsibilities with respect to harassment and unlawful retaliation. e. Consider disciplinary action against the employees who have subjected Petitioner to harassment. The Agency shall report its decision. If the Agency decides to take disciplinary action, it shall identify the action taken. If the Agency decides not to take disciplinary action, it shall set forth the reason(s) for its decision not to impose discipline. Moreover, the Agency shall place a copy of the AJ’s decision in the official personnel file of each of the employees (identified in the AJ’s decision) who have been found to have subjected Petitioner to discriminatory or retaliatory harassment. 2. Within sixty (60) calendar days of the date this decision is issued, the Agency shall issue a written report to Director, Federal Sector Programs (FSP), Office of Federal Operations (OFO) that includes: 2019004324 5 a) An analysis of its Fiscal Year 2018 - 2019 Agency-wide EEO reporting on compliance with EEOC orders to identify problem areas in meeting regulatory reporting requirements, including timely reporting and providing adequate evidence of compliance with EEOC orders. b) A detailed action plan setting forth how the problems identified in its analysis will be corrected, delays ended, and compliance reporting brought in accordance with EEOC regulations. Such plan will include specific and reasonable timeframes within which to meet such goals. The Agency shall provide quarterly progress reports to FSP on the achievements of its action plan throughout the remainder of FY 2020 and shall include a report of its progress in its next MD-715 report.4 3. The Agency is further directed to submit its 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). ATTORNEY'S FEES (1019) If Complainant has been represented by an attorney (as defined by 29 C.F.R. § 1614.501(e)(1)(iii)), she/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 receipt of this decision. 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 (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 Petitioner and his/her representative. 4 We note that we will be issuing the same order in a number of other cases involving the Agency where similar failures to report compliance have occurred. We clarify that the Agency only needs to develop a single action plan to comply with these orders. 2019004324 6 If the Agency does not comply with the Commission’s order, the Petitioner may petition the Commission for enforcement of the order. 29 C.F.R. § 1614.503(a). The Petitioner 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 Petitioner 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. 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. PETITIONER’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. 2019004324 7 Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Petitioner’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 January 31, 2020 Date