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

Equal Employment Opportunity Commission

Jan 31, 2020

2019004320 (E.E.O.C. Jan. 31, 2020)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Kathlyn K.,1 Petitioner, v. Ryan D. McCarthy, Secretary, Department of the Army, Agency. Petition No. 2019004320 Previous Petition No. 0420170010 Appeal No. 0120131314 Agency No. ARWSMR09MAR00849 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. 0120131314 (October 29, 2015). See 29 C.F.R. § 1614.503. BACKGROUND At the time of events giving rise to this complaint, Petitioner worked as an Accounting Technician at the Agency’s White Sands Missile Range in New Mexico. Petitioner filed a complaint in which she alleged that the Agency discriminated against her on the bases of race (Native American), sex (female), age (50), and in reprisal for prior protected EEO activity. Among other things, she alleged that she was subjected to discrimination when she was issued a Letter of Reprimand. Following its investigation into the claims, the Agency issued a final decision. Petitioner appealed. 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. 2019004320 2 In Appeal No. 0120131314, the Commission found that the Agency properly determined that Petitioner established that unlawful retaliation played a role in the issuance of the Letter of Reprimand. The decision ordered the Agency to: (1) provide training to the responsible management official; (2) consider discipline against the responsible Agency employee; (3) post a notice of violation; (4) provide Petitioner with $37,636.00 in attorney's fees and $712.05 in costs; and (5) provide a report of its compliance. The matter was docketed for compliance monitoring as Compliance No. 0620160101 on November 16, 2015. The Agency submitted evidence that it provided Petitioner with $37,636.00 in attorney’s fees and $712.05 in costs, but it did not submit evidence of compliance with ordered corrective actions 1, 2 and 3. Based on the Agency’s inactivity and its failure to respond to requests for documentation concerning compliance with the Commission’s corrective actions 1, 2 and 3, the Commission opened the petition for enforcement on March 3, 2017. In Petition No. 0420170010 (Oct. 18, 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 our Order in EEOC Appeal No. 0120131314. We again issued an Order, which specified: 1. Within ninety (90) of the date this decision is issued, the Agency shall provide at least eight (8) hours of training to S2 regarding his responsibility to promote a work environment that is free of reprisal. The training will include information about what constitutes protected activity. 2. Within sixty (60) days of the date on which this decision is issued, the Agency shall consider taking disciplinary action against the responsible Agency employees found to have discriminated against Petitioner. The Agency shall report its decision to the Commission. If the Agency decides to take disciplinary action, then it shall identify the action taken. If the Agency decides not to take disciplinary action, it shall set forth the reasons for its decision not to impose discipline. 3. Within thirty (30) days of the date this decision is issued, the Agency shall post a notice in accordance with the posting order. The matter was docketed for compliance monitoring as Compliance No. 0620180051 on October 19, 2017. However, the Agency continues to refuse to establish that it has complied with the orders issued in EEOC Appeal No. 0120131314 or to respond to the related inquiries from the EEOC. 2019004320 3 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. Here, for over four years, the Agency has failed to report its compliance with the Commission’s remedial orders in EEOC Appeal No. 0120131314 and Petition No. 0420170010. 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. 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. 0120131314 and Petition No. 0420170010, we still cannot conclude that it is in compliance. The Commission directs the Agency to immediately take action consistent with the Order below. ORDER The Agency is ordered to take the following remedial action: 1. Within thirty (30) calendar days of the date this decision is issued, the Agency shall provide proof that it has provided at least eight (8) hours of training to S2 regarding his responsibility to promote a work environment that is free of reprisal. 2. Within thirty (30) calendar days of the date this decision is issued, the Agency shall provide proof that it considered taking disciplinary action against the responsible Agency employees found to have discriminated against Petitioner. The Agency’s report shall indicate if the Agency decided to take disciplinary action, then it shall indicate the action that was taken. If the Agency decided not to take disciplinary action, it shall provide the reasons for its decision not to impose discipline. 2 Here, EEOC Appeal No. 0120131314 is the Commission’s final decision as no requests for reconsideration were filed. 2019004320 4 3. Within thirty (30) calendar days of the date this decision is issued, the Agency shall provide evidence that it posted the notice as ordered. 4. 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 5. 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 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. 2019004320 5 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. 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. 2019004320 6 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