Jasmine Y.,1 Petitioner,v.Ryan D. McCarthy, Secretary, Department of the Army, Agency.

Equal Employment Opportunity Commission

Jan 31, 2020

2019004330 (E.E.O.C. Jan. 31, 2020)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Jasmine Y.,1 Petitioner, v. Ryan D. McCarthy, Secretary, Department of the Army, Agency. Petition No. 2019004330 Appeal No. 0120171163 Hearing No. 560-2015-00123X Agency No. ARSILL14MAR00901 DECISION ON A PETITION FOR ENFORCEMENT On June 28, 2019, 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. 0120171163 (August 14, 2018). See 29 C.F.R. § 1614.503. BACKGROUND At the time of events giving rise to this complaint, Petitioner worked as a Lead Child and Youth Program Assistant, at the Tincher Child Development Center (CDC), Fort Sill, Oklahoma. Petitioner filed a complaint alleging the Agency discriminated against her on the bases of race (African-American), national origin (Haitian), and in reprisal for prior protected EEO activity in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq. Petitioner requested a hearing before an EEOC Administrative Judge (AJ). Following the hearing, the AJ issued a decision finding discrimination on some of the claims and no discrimination on other claims. The AJ also awarded damages for the unlawful discrimination. The Agency subsequently issued its decision on January 13, 2017, adopting the AJ’s findings. 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. 2019004330 2 Subsequently, Petitioner appealed the Agency’s damages award. In Appeal No. 0120171163 (August 14, 2018), the Commission modified the remedies ordered for Petitioner. The Order of Appeal No. 0120171163 specified that, within one hundred and twenty (120) days of the date the decision is issued, the Agency was to: 1. Pay Petitioner $30,000.00 in non-pecuniary compensatory damages. 2. Pay Petitioner $7,660.00 in pecuniary compensatory damages for medical bills, $67.06 for food, and $1,904.22 for mileage. 3. Pay attorney’s fees in the amount of $45,080.00 and $376.32 in legal costs. 4. Provide six hours of training, to management and staff at the Tincher Child Development Center, with a focus on Title VII, retaliation, and harassment. The Agency shall provide proof of the contents of the in-person training provided. 5. Consider taking appropriate disciplinary action against the then detailed Director and Assistant Director of the Tincher Child Development Center. The Commission does not consider training to be disciplinary action. The Agency shall report its decision to the Compliance Officer, referenced herein. 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 for its decision not to impose discipline. If any of the responsible management officials have left the agency, then the Agency shall furnish documentation of their departure date. 6. Award of reasonable attorney’s fees and costs incurred in connection with appeal. 7. Post a notice, as provided in the “Posting Order. The matter was docketed for compliance monitoring as Compliance No. 0620180717 on August 17, 2018. The Agency provided proof that it had complied with all the orders except remedies 1, 4, and 5. Specifically, the Agency only established that it paid Petitioner $20,000 of the $30,000 awarded in non-pecuniary compensatory damages. The Agency also failed to address whether it had provided the responsible management officials with the six hours of training or had considered taking disciplinary action. In the seventeen months since that time, the Agency has failed to demonstrate full compliance with the orders issued in Appeal No. 0120171163. ANALYSIS AND FINDINGS EEOC Regulations 29 C.F.R. § 1614.502(a) and § 1614.503 provide that relief ordered in a final2 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. 2 Here, EEOC Appeal No. 0120171163 is the Commission’s final decision as no requests for reconsideration were filed. 2019004330 3 Subsequent to the docketing of the instant petition, the Agency submitted additional documents. The Agency provided a copy of a check demonstrating that it paid Petitioner an additional $10,000 in non-pecuniary damages. As such, Order 1 has now been resolved. Further, the Agency stated that the facility’s personnel received “a one-hour block of EEO training” provided by an EEO official on October 5, 2018. Finally, the Agency indicated that they spoke to management and determined that the matter of discipline was completed. On October 26, 2018, the Agency had basically removed the detailed Director and Assistant Director of the Tincher Child Development Center and that they had received training and were counseled verbally and formally. The Agency did not provide the formal counseling documents. Upon review of the record, we find that the Agency has not provided adequate proof of its full compliance with Orders 4 and 5. We note that the Agency was ordered to provide “six hours of training, to management and staff at the Tincher Child Development Center, with a focus on Title VII, retaliation, and harassment. The Agency shall provide proof of the contents of the in-person training provided.” To date, the Agency has asserted, without evidence, that it provided a one- hour block of training. We find that this is woefully inadequate. The training was to focus on Title VII, retaliation, and harassment. The Agency has provided no evidence to indicate that these topics were covered in the training. Moreover, we have no evidence that the six hours of training required by our Order was actually delivered. Therefore, we will order the Agency to provide the six hours of training as ordered in EEOC Appeal No. 0120171163. The Agency shall submit to the Commission the material provided in the training to ensure that the training included the topics listed in the order. In addition, the Agency shall provide a list of those who were provided the training to ensure that the responsible management officials have received the training. As to the Agency’s assertion that it has considered taking disciplinary action as required in order 5, we find that the Agency has provided no documentation to support its assertion that it “verbally and formally” counseled the responsible management officials. The Agency also stated that officials have moved or have left the Agency. The Agency provided no proof of these claims either. Such evidence must be provided before we can find compliance. In sum, for over one-and-a-half years, the Agency has failed to fully comply with the Commission’s orders in EEOC Appeal No. 0120171163. 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, 2019004320, 2019004321, 2019004322, 2019004323, 2019004324, 2019004325, 2019004327, 2019004328, 2019004329, 2019004332, 2019004334, 2019004335, 2019004336, 2019004337, 2019004338, and 2019004339. 2019004330 4 Based on the Agency’s failure to provide adequate evidence of its compliance with EEOC’s order in Appeal No. 0120171163, we cannot conclude that it is in full compliance. The Commission directs the Agency to immediately take action consistent with the Order below. ORDER 1. The Agency is ordered to take the following remedial actions within thirty (30) calendar days of the date this decision is issued: a. Provide six hours of training to management and staff at the Tincher Child Development Center, with a focus on Title VII, retaliation, and harassment. The Agency shall provide proof of the contents of the in-person training provided and the attendees of the training. b. Provide evidence of the alleged actions taken against the then detailed Director and Assistant Director of the Tincher Child Development Center, including the formal counseling documents, proof of training and documentation of their status with regard to their detailed positions at the Center. 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: 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.3 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). 3 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. 2019004330 5 ATTORNEY'S FEES (H1016) If Petitioner 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 (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. 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. 2019004330 6 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 January 31, 2020 Date