0420160019_0420160020_0420160021_0420160022_0420160023
08-23-2016
Emiko S., Judie D., Goldie G., Maxie S., Lexie T.,1 Petitioners,2 v. Eric K. Fanning, Secretary, Department of the Army, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Emiko S.,
Judie D.,
Goldie G.,
Maxie S.,
Lexie T.,1
Petitioners,2
v.
Eric K. Fanning,
Secretary,
Department of the Army,
Agency.
Petition Nos. 0420160019, 0420160020, 0420160021, 0420160022, & 0420160023
Appeal Nos. 0120123054, 0120123055, 0120123056, 0120123057 & 0120123058
Hearing Nos. 410-2010-00202X, 410-2010-00160X, 410-2010-00161X,
410-2010-00203X & 410-2010-00158X
Agency Nos. ARGORDON09FEB01400, ARGORDON09FEB00497, ARGORDON09FEB01547, ARGORDON09FEB00406 & ARGORDON09JAN01545
DECISION ON A PETITIONS FOR ENFORCEMENT
On May 31, 2016, the Equal Employment Opportunity Commission (EEOC or Commission) docketed a petition for enforcement to examine the enforcement of an Order set forth in EEOC Appeal No. 0120123054, 0120123055, 0120123056, 0120123057 & 0120123058 (Sept. 9, 2014). The Commission accepts this petition for enforcement pursuant to 29 C.F.R. � 1614.503. Petitioners alleged that the Agency failed to fully comply with the Commission's order regarding back pay, as well as training for the responsible management officials.
BACKGROUND
At the time of events giving rise to this complaint, Petitioners worked as nurses at the Agency's Eisenhower Army Medical Center facility in Ft. Gordon, Georgia.
In the summer of 2008, two Lead Nurse Case Manager, GS-12, positions became vacant. The Lead Nurse Case Manager (Caucasian) offered one of the positions to a Nurse Case Manager (African American) ("Selectee 1") other than the Petitioners, but this individual declined the position. In August 2008, the Facility Director (Caucasian), at the recommendation of the Lead Nurse Case Manager, used a non-competitive direct hire process to select two other nurses ("Selectees 2 and 3") (both Caucasian) other than Petitioners for the Lead Nurse Consultant positions. Selectee 3 began working in her new position effective October 12, 2008, and Selectee 2 started effective January 18, 2009. Based on these events, the Petitioners each contacted the Agency's EEO office alleging discrimination.
When the matter was not settled informally, on April 20, 2009, Petitioner 1 filed an EEO complaint alleging that the Agency discriminated against her on the bases of race (African-American), color (dark skinned), and reprisal for prior protected EEO activity when:
1. She was not provided the opportunity to compete for the Lead Nurse Consultant positions that were awarded non-competitively through the direct hire process.
2. On August 21, 2009, she and the other Nurse Case Managers were informed that they would no longer be centrally located and, instead, would be assigned to the buildings occupied by their respective companies, namely ALPHA, BRAVO and CHARLIE. They alleged that this move was in retaliation for complaining about the selection process in claim (1).3
Petitioner 2 filed her formal complaint on April 10, 2009, alleging discrimination based on race (African-American), disability, and reprisal for the same two events as Petitioner 1. Petitioner 3 alleged discrimination regarding claims (1) and (2) on the bases of race (African American), disability and reprisal. On April 27, 2009, Petitioner 4 filed her formal complaint alleging discrimination on the same two events on the bases of race (African American), color (bi-racial) and reprisal. Finally, Petitioner 5 filed her formal complaint on April 17, 2009, alleging discrimination on the bases of race (African American), disability, and reprisal, also based on claims (1) and (2).
Following the investigations, the Petitioners requested a hearing before an EEOC Administrative Judge (AJ). The hearing requests were later withdrawn in favor of a final decision by the Agency. Consequently, the Agency issued final decisions for each petitioner pursuant to 29 C.F.R. � 1614.110(b). The decisions concluded that Petitioners 1, 2, 3, 4 and 5 failed to prove that the Agency subjected them to discrimination as alleged in claims (1) and (2).
Noting that all the Petitioners were represented by the same attorney and the briefs for each of the Petitioners were substantially similar, the Commission consolidated the appeals. As such, the Commission addressed the five complaints in a single decision. In Appeal Nos. 0120123054, 0120123055, 0120123056, 0120123057 & 0120123058, the Commission found that the Agency discriminated against the Petitioners when Selectees 2 and 3 were placed in the Lead Nurse Consultant positions and when Colonel T had the Petitioners relocated into different buildings in retaliation for filing the initial complaints.
The Order also specified that, within sixty (60) calendar days, the Agency had to conduct a supplemental investigation and issue a final decision, with appeal rights to this Commission, determining who, among the five Petitioners, would have been selected for the two Lead Nurse Consultant positions but for the discrimination. Once the two selectees have been determined, the Agency was ordered to place them in the Lead Nurse Consultant positions retroactive to the date they would have assumed the position had it not been for the discrimination. The Agency was then ordered to determine the appropriate amount of back pay, with interest, and other benefits due the two Petitioners (selectees), pursuant to 29 C.F.R. � 1614.501. The Agency was also instructed to conduct supplemental investigations regarding compensatory damages and to provide training for the management officials who have subjected the Petitioners to unlawful discrimination and retaliation.
The matters were assigned to a Compliance Officer and docketed as Compliance Nos. 0620140728, 0620140729, 0620140730, 0620140731, & 0620140732 on September 22, 2014. On May 31, 2016, Petitioners submitted the petition for enforcement at issue. Petitioners contend that the Agency failed to provide back pay to the selected Petitioners and to provide training to the responsible management officials, namely the Lead Nurse Case Manager, the Facility Director and Colonel T.
Upon review of the record, the Agency has provided a final decision determining that Petitioner 5 and Petitioner 2 were selected for the Lead Nurse Consultant positions on February 13, 2015. The Agency has issued SF-50s establishing that Petitioner 5 and Petitioner 2 have been retroactively placed in the positions in question. The Agency indicated that Petitioner 5 and Petitioner 2 have been provided with back pay, but have not given the Compliance Officer proof of such payment. In addition, the Agency has failed to provide evidence supporting the calculation of the back pay awards. Despite repeated requests by the Compliance Officer to provide evidence of the amount of back pay, including the method of calculating the back pay and proof of the payment of back pay, the Agency has not provided any such evidence. As such, we cannot find that the Agency has complied with the Commission's order regarding back pay for Petitioner 5 and Petitioner 2.
As to the remaining orders, the Agency has provided final decisions calculating compensatory damages and attorney's fees and costs for each Petitioner with appeal rights to the Commission. None of the Petitioners have appealed these decisions.
Therefore, the only issue left is whether the Agency has complied with the Commission's order to provide training to the responsible management officials, namely the Lead Nurse Case Manager, the Facility Director and Colonel T. The Agency has provided an affidavit stating that the Lead Nurse Case Manager departed the Eisenhower Army Medical Center facility on September 26, 2009; the Facility Director departed on June 19, 2009; and Colonel T departed on May 20, 2010. The Agency provided an email indicating that it planned training for facility managers and supervisors on January 5, 2015; January 29, 2015; February 10, 2015; February 18, 2015; March 19, 2015; and March 24, 2015.
As to the training requirement, the Agency did not provide the exact subject matter of the training or the content of the training. It is unclear as to whether the Agency has provided management training on the specific issues raised in the findings of discrimination and retaliation. Further, the Agency has asserted that, in essence, it could not provide training to the specific responsible management officials in the case at hand because they have "departed" the facility. If the Lead Nurse Case Manager, the Facility Director and Colonel T are still employed by the Agency, regardless of facility assignment, the Agency is obligated to provide them with training. The Agency has also asserted that these management officials may no longer be employed by the Agency. The Agency has provided no support for this assertion. As such, we cannot find that the Agency has complied with this order in the Commission's decision.
CONCLUSION
Upon review of the record, we GRANT Petitioners' Petitions for Enforcement. The matter is REMANDED to the Agency in accordance with the ORDER below.
ORDER (D0610)
The Agency is ordered to take the following remedial action:
I. The Agency shall determine the appropriate amount of back pay, with interest, and other benefits due Petitioner 5 and Petitioner 2, pursuant to 29 C.F.R. � 1614.501, no later than sixty (60) calendar days after the date this decision becomes final. The Petitioners 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. The Agency shall provide both Petitioners, as well as EEOC's Compliance Officer, with evidence of the payments made, as well as an explanation with appropriate documentation of how the back pay award was calculated. If there is a dispute regarding the exact amount of back pay and/or benefits, the Agency shall issue a check to the Petitioners for the undisputed amount within sixty (60) calendar days of the date the Agency determines the amount it believes to be due. The Petitioners may petition for enforcement or clarification of the amount in dispute. The petition(s) 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."
II. Within sixty (60) calendar days from the date this decision becomes final, the Agency is directed to conduct EEO training for the management officials who have been found to have engaged in unlawful discrimination. If the Lead Nurse Case Manager, the Facility Director and/or Colonel T are no longer employed by the Agency, the Agency shall provide the Commission with evidence that they are no longer employed by the Agency.
The Agency is further directed to submit a report of compliance, as provided in the statement entitled "Implementation of the Commission's Decision." The report shall include supporting documentation of the Agency's calculation of backpay and other benefits due Petitioner 5 and Petitioner 2, including evidence that the back pay has been paid.
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/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 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 Petitioner. 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.
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. 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
August 23, 2016
__________________
Date
1 A randomly assigned pseudonym which will replace Petitioners' names when the decision is published to non-parties and the Commission's website.
2 Hereinafter, Emiko S. will be referred to as "Petitioner 1," Judie D. as "Petitioner 2," Judie D. as "Petitioner 3," Maxie S. as "Petitioner 4" and Lexie T. as "Petitioner 5."
3 Claim (2) was an amendment to the original complaint.
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0420160019
2
0420160019, 0420160020,
0420160021, 0420160022, & 0420160023