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

Equal Employment Opportunity Commission

Jan 31, 2020

2019004325 (E.E.O.C. Jan. 31, 2020)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Julie D.,1 Petitioner, v. Ryan D. McCarthy, Secretary, Department of the Army, Agency. Petition No. 2019004325 Appeal No. 0120182217 Agency No. ARMEPCOM18MAR00874 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. 0120182217 (September 20, 2018). See 29 C.F.R. § 1614.503. BACKGROUND At the time of events giving rise to this complaint, Petitioner worked as an Administrative Support Technician, GS-6, at the Agency’s Military Entry Processing Station in Louisville, Kentucky. Petitioner filed a complaint in which she alleged that the Agency subjected her to ongoing harassment on the bases of religion and 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. The Agency dismissed the formal complaint in its final decision for failure to state a claim. Petitioner appealed. In Appeal No. 0120182217, issued September 20, 2018, the Commission reversed the Agency’s dismissal and ordered the Agency to process the remanded claims in accordance with 29 C.F.R. § 1614.108. 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. 2019004325 2 The Agency was to acknowledge to the Petitioner that it had received the remanded claims within thirty (30) calendar days of the date the decision was issued. The Agency was ordered to issue Petitioner a copy of the investigative file and notify her of the appropriate rights within one hundred fifty (150) calendar days of the date the decision was issued, unless the matter was otherwise resolved prior to that time. The matter was docketed for compliance monitoring as Compliance No. 0620180800 on September 25, 2018. In the sixteen months since that time, the Agency has failed to file the ordered report of its compliance with EEOC Appeal No. 0120182217 or to respond to any of 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 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. In its July 13, 2019 response to the instant petition for enforcement, the Agency submitted documentation to the Commission for the first time indicating that, on December 21, 2018, Petitioner filed a civil action with the Commonwealth of Kentucky, Jefferson County Circuit Court, alleging the same issues raised in her administrative EEO complaint. The matter was removed from the state court to a Federal District Court in accordance with the Federal Rules for Civil Procedure. Based on Petitioner’s filing of the civil action, on January 18, 2019, the Agency issued a new final Agency decision (FAD) dismissing Petitioner’s formal complaint. A review of the final decision indicates that Petitioner was made aware of her right to file an appeal of the new FAD with the Commission. There is no indication that Petitioner filed an appeal from the new FAD. Petitioner responded to the petition asking that the Commission grant the petition and reverse the Agency’s new FAD. However, Petitioner has confirmed that she filed the civil action in state court and, on February 8, 2019, the matter was transferred to federal District Court. She further noted that the civil action was dismissed without prejudice in March 2019. She did not indicate that she filed an appeal following the Agency’s new dismissal decision. Upon review of the record, we now conclude that the Agency has processed Petitioner’s complaint and issued a final decision dismissing the matter due to her filing of a civil action. See 29 C.F.R. § 1614.107(a)(3). 2 Here, EEOC Appeal No. 0120182217 is the Commission’s final decision as no requests for reconsideration were filed. 2019004325 3 Petitioner was informed of her right to appeal the Agency’s FAD, but failed to do so. Petitioner should have appealed the Agency’s new FAD if she did not agree with the dismissal. Therefore, upon review of the record as a whole, we find that the Agency has appropriately terminated processing of Petitioner’s complaint when it issued its January 18, 2019 dismissal decision based on her civil action. While the Agency failed to timely provide the Commission with its compliance report resulting in the instant petition, at this point, we find that the Agency has completed the processing of the instant matter and no further action is required. PETITIONER’S RIGHT TO FILE A CIVIL ACTION (S0610) You have the right to file a civil action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. 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. If you file a request to reconsider and also file a civil action, 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