0420180008
05-03-2018
Justine R.,1 Petitioner, v. Dr. David J. Shulkin, Secretary, Department of Veterans Affairs, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Justine R.,1
Petitioner,
v.
Dr. David J. Shulkin,
Secretary,
Department of Veterans Affairs,
Agency.
Petition No. 0420180008
Appeal No. 0120170775
Agency No. 200H05232016102170
DECISION ON A PETITION FOR ENFORCEMENT
On December 13, 2017, 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. 0120170775 (May 10, 2017). The Commission accepts this petition for enforcement pursuant to 29 C.F.R. � 1614.503. Petitioner alleged that the Agency failed to fully comply with the Commission's order to direct Petitioner's supervisor not to supervise or communicate with her, and also failed to conduct sexual harassment training for all employees in Petitioner's department and follow that up with a survey of the attendees.
BACKGROUND
At the time of events giving rise to this complaint, Petitioner worked as a Clinical Oncology Pharmacist and Clinical Trials Manager at the Agency's Healthcare System facility in Boston, Massachusetts. On June 24, 2016, Petitioner and the Agency entered into a settlement agreement to resolve an EEO matter. Believing that the Agency had breached the agreement, Petitioner notified the Agency on September 19, 2016 of her allegation of breach. In a decision dated November 10, 2016, the Agency found no breach of the agreement. Petitioner appealed the Agency's decision to the Commission, and in Appeal No. 0120170775, the Commission found that the Agency breached two clauses of the agreement: specifically clause 2(a)(iii) which held that Petitioner's supervisor should not supervise or communicate with Petitioner; and clause 2(b), which required that the Agency, in addition to conducting sexual harassment training for the Pharmacy Department, also conduct a survey of the training participants to determine if further action was warranted.
The Commission ordered specific performance of the agreement's terms, specifically the requirement that Petitioner's supervisor not supervise or communicate with Petitioner, and the requirement to conduct sexual harassment training for the Pharmacy Department and to follow such training with a survey of the attendees. The Order also specified that the Agency was to provide evidence of its compliance. The matter was assigned to a Compliance Officer and docketed as Compliance No. 0620170499 on May 11, 2017. The Agency was provided 45 days to comply with the Order.
On July 17, 2017 Petitioner submitted the petition for enforcement at issue. Petitioner contends that the Agency has paid her attorney's fees but has otherwise failed to fully comply with the Commission's Order and that to date sexual harassment training has still not been provided to members of her department. Petitioner further contends that on July 5, 2017, she again received an email from her supervisor, in violation of clause 2(a)(iii) of the agreement. Petitioner notes that the Agency has also provided no evidence of its compliance with the Commission's Order. Petitioner requests that the Agency comply with our prior Order and also pay additional attorney's fees incurred seeking enforcement of the Order. A review of the record does not show that the Agency has submitted any evidence that it complied with the Commission's May 10, 2017 Order.
CONCLUSION
Based upon a review of the record and the submissions of the parties, and for the foregoing reasons, the Commission GRANTS the petition for enforcement. The Commission finds that the Agency has failed to fully comply with its May 10, 2017 Order by not ensuring that Petitioner's supervisor refrain from communicating with or supervising Petitioner, and not providing sexual harassment training for the Pharmacy Department, followed by a survey of the attendees. Nor has the Agency provided copies of its compliance activity. The Agency is therefore required to comply with the Order below.
ORDER
The Agency is ORDERED, within forty-five (45) calendar days of the date of this decision, to provide evidence, including affidavits, to document its compliance with provisions 2(a)(i), 2(a)(ii), 2(a)(iii) and 2(b) of the June 24, 2016 Settlement Agreement between the parties. This documentation shall include, but not be limited to, the Agency's efforts to enforce the lack of contact provision in 2(a)(iii) and the EEO office's distribution of the survey referenced in provision 2(b) to Pharmacy Department staff, and the subsequent efforts to review and assess the results of the survey to determine whether further action is warranted. The Agency shall also pay any reasonable attorney's fees incurred by Petitioner seeking enforcement of our original Order.
In accordance with Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9 � IX.E & H (Aug. 5, 2015), the Agency shall give priority to this remanded case in order to comply with the time frames contained in this Order. The Office of Federal Operations will issue sanctions against agencies when it determines that agencies are not making reasonable efforts to comply with a Commission order.
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 Petition. 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 (K0617)
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 in the digital format required by the Commission, and submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. � 1614.403(g). 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.
COMPLAINANT'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 Complainant'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
May 3, 2018
__________________
Date
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.
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