0120170670
04-27-2018
Mana H.,1 Complainant, v. Richard V. Spencer, Secretary, Department of the Navy, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Mana H.,1
Complainant,
v.
Richard V. Spencer,
Secretary,
Department of the Navy,
Agency.
Appeal No. 0120170670
Hearing Nos. 480-2015-00125X, 480-2015-00126X, and 480-2015-00127X
Agency Nos. 11-64267-03594, 12-64267-00405, and 12-64267-00405Supp
DECISION
On December 8, 2016, Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. � 1614.403(a), from the Agency's December 1, 2016, final order concerning her equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. For the following reasons, the Commission AFFIRMS the Agency's final order.
ISSUES PRESENTED
The issues presented are (1) whether the EEOC Administrative Judge (AJ) correctly found that Complainant was not entitled to personal relief in connection with a default judgment on one of her allegations; (2) whether the AJ correctly determined the effect of an adverse inference regarding another allegation; (3) whether substantial evidence of record supports the AJ's determination that the Agency did not discriminate against Complainant or subject her to a hostile work environment on the bases of race, national origin, color, sex, age, disability, or reprisal for prior protected EEO activity; and (4) whether the AJ correctly found that Complainant did not establish that the Agency processed her complaints improperly.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as an Engineer, ND-0855-04, in the QA-00 Branch of the Quality Assessment (QA) Department at the Naval Surface Warfare Center (NSWC), Corona Division, in Corona, California.
In formal complaints filed on September 16 and December 29, 2011, and subsequently amended, Complainant alleged that the Agency discriminated against her and subjected her to harassment on the bases of race (Asian), national origin (Vietnam), color (yellow), sex (female), age (59), disability, and reprisal for prior protected EEO activity with respect to several matters. She also alleged that the Agency processed her EEO complaints improperly.
At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an EEOC AJ. Complainant timely requested a hearing. The AJ granted Complainant's motion to amend her complaint, ordered a supplemental investigation, and held a hearing on Complainant's consolidated complaints on July 21-24 and August 25-27, 2015. He issued a comprehensive decision, thoroughly addressing all of the claims that Complainant raised in her complaints, on November 7, 2016.
Default Judgment
During the pre-hearing process, the AJ granted a default judgment in favor of Complainant on her claim that the Agency discriminated against her when her supervisor, the QA Department Head (DH1), issued a Performance Expectation Module (PEM) that changed her assignments. The AJ did so to sanction the Agency for not concluding its investigation of the allegation in a timely manner.2 In a January 29, 2014, Order, the AJ concluded that the record contained a "minimal showing of support" for a default judgment that the Agency discriminated and retaliated against Complainant when DH1 assigned her the PEM tasks. He stated that Complainant could present evidence regarding compensatory damages and costs related to this claim during the hearing on her complaints. In an April 13, 2015, Order, the AJ denied the Agency's request to reconsider the default judgment and stated that "Complainant established a prima facie case of disparate treatment, which is required to support a default judgment for an untimely investigation," and that there was no need for evidence of pretext on this issue. In a May 5, 2015, follow-up Order, however, the AJ noted that the Agency had "consistently articulated the same reason for Complainant's reassignment." He concluded that the Agency was "entitled to defend itself against a damage claim under the 'mixed motive' theory." He stated that the Agency could "limit damages by demonstrating through 'clear and convincing evidence' that it would have taken the same action even if it had not considered the discriminatory factors imposed by the default judgment" and that Complainant would have an opportunity to rebut the Agency's evidence. The AJ further stated that Complainant would not be entitled to personal relief if the Agency established that it would have reassigned Complainant to the PEM assignment.
In his post-hearing decision, the AJ noted that he "later revised [his] ruling that there was a prima facie case of unlawful discrimination on any basis and informed the parties that Complainant would have to establish by a preponderance of the evidence that there was circumstantial evidence of a prima facie case of an unlawful discriminatory motive for the PEM assignment in order to be entitled to equitable or make-whole relief." Noting that the Agency completed the investigation 57 days late, the AJ stated,
In hindsight, I probably should have used my discretion to impose a lesser sanction, if any at all, for the untimely investigation into this case. It appears that Complainant's desire to constantly amend her complaints may have caused the delay in the investigation into Issue Two, but I did not have sufficient facts to fully evaluate that issue prior to issuing my ruling . . . . Notwithstanding my hindsight observation, I will not allow this rearview to affect my ability to evaluate the relevant facts and apply the appropriate law in arriving at the conclusions discussed herein.
He found that DH1 issued the same PEM expectation to a similarly situated ND-4 Senior Engineer (CW1) who was not in Complainant's protected groups and who also reported to DH1. Because CW1 was "the only valid comparator," the AJ concluded that Complainant did not show that her PEM assignment was based on her membership in a protected class and did not establish prima face cases of discrimination or harassment. Applying a mixed-motives analysis, the AJ further concluded that the Agency established by clear and convincing evidence that it would have taken the same action even absent the default-judgment finding of liability.
The AJ found that Complainant was entitled to receive reasonable attorney's fees and costs related to the PEM claim but was not entitled to compensatory damages or equitable relief. He ordered the Agency to take the following corrective actions: ensure that EEO employees and management officials are aware of the procedural requirements for timely EEO investigations, train EEO employees on how to monitor investigation time limits, post a notice of the finding of discrimination at the Agency's NSWC facility, and compensate Complainant for reasonable attorney's fees and costs after Complainant submits supporting documentation.
Adverse Inference
In his April 13, 2015, Order, the AJ sanctioned the Agency for not retaining certain records that would have been responsive to some of Complainant's interrogatories (#85, #86, #88, and #89) and requests for production (#9 and #10). He stated that he would impose an adverse inference that the records would have been favorable to Complainant's case if they had been produced. Elsewhere in the Order, the AJ gave the Agency an opportunity to supplement its responses to two of Complainant's interrogatories (#86 and #89) and one of her requests for production (#10). Subsequently, in response to the parties' request for clarification of an apparent conflict in the Order, the AJ rescinded the part of the sanction that pertained to the supplemented discovery. He retained the sanction regarding Complainant's interrogatories #85 and #88 and request for production #9. He notified the parties that he would determine the impact of the adverse inference after Complainant had an opportunity to explain during the hearing the affect that the destruction of documents had on her ability to prepare her case.
In his post-hearing decision, the AJ expressly stated that he would not disturb his imposition of an adverse-inference regarding interrogatories #85 and #88 and request for production #9. He also stated that the Agency had located "numerous documents that it thought were not preserved or destroyed and released them to Complainant a couple of months in advance of the hearing." The AJ found that Complainant did not "show that the documents that were the subject of the records keeping violation and adverse inference would have established that there were similarly situated employees not in her protected classes who were treated differently." He noted that Complainant and CW1 were similarly situated and that the QA Department Heads treated them similarly. He also noted that Complainant did not show that she was similarly situated to any of the employees whose records were involved in the Agency's record-keeping violation. As a result, the AJ declined to "conclude that there is an adverse inference that would establish pretext."
Discrimination and Harassment Allegations
The AJ further found that Complainant did not establish that the Agency subjected her to unlawful discrimination or harassment regarding the matters raised in her complaints. Assuming that Complainant established prima facie cases of discrimination, the AJ found that she did not show that the Agency's articulated reasons for its actions were pretextual. The AJ noted that, like Complainant, CW1 received a "meets expectations" rating and did not receive a salary increase for the 2011 performance year. He also noted that the Agency moved Complainant and other QA Department employees to new locations because the current building was being renovated and that Complainant's new office was one of the more desirable offices in the new building. He concluded that Complainant did not establish that DH1 unduly scrutinized her work or excessively assigned tasks to her. The AJ also concluded that the new QA Department Head (DH2), who became Complainant's supervisor after DH1 went to another department, denied her a pay raise for July 2011 though June 2012 because she did not exceed the Agency's 75 percent benchmark and was not eligible for a pay raise. He similarly concluded that the third QA Department Head (DH3) denied Complainant a raise for July 2012 through June 2013 because she did not meet the necessary benchmark. In addition, the AJ found that DH3 reassigned Complainant from an overhead-funded position in the QA-00 Branch to a direct-funded position in the QA-12 Branch because of fiscal pressures to reduce non-reimbursable, overhead-funded positions. He stated that DH3 also reassigned other engineers to the QA-12 Branch, that DH3 cancelled the telework agreements of Complainant and other employees to allow the new supervisors to determine whether the agreements met organizational needs, and that Complainant never presented herself to her new supervisor (S1) to request a telework agreement.
In addition, the AJ found that Complainant did not establish pretext regarding her claims that the Agency discriminatorily denied her request for Leave Without Pay (LWOP), issued her a Letter of Reprimand, issued her a Notice of Proposed Suspension, and required her to serve a five-day suspension from January 11 through 15, 2014. He noted that Complainant went out on sick leave after her assignment to the QA-12 Branch and submitted her leave requests to DH3 rather than to S1. DH3 forwarded the requests to S1, who approved Complainant's request for sick leave from October 16 through November 17, 2013, even though Complainant did not respond to S1's request for a doctor's note explaining why Complainant's medical condition prevented her from working. S1 approved part of Complainant's subsequent request for annual leave but denied the request for dates on which Complainant was scheduled to attend training. Complainant sent an e-mail to DH3 and two other individuals stating that she could not return to work because of a perceived hostile environment, but she did not send the e-mail to S1; did not respond to S1's e-mail directing Complainant to report to work from December 2 through 6, 2013; and did not report for training or work. In her response to the proposed suspension, Complainant submitted an October 16, 2013, doctor's note stating that Complainant was experiencing depression, anxiety, and stress because of a perceived hostile environment. Complainant acknowledged that she submitted the note only to a Human Resources Specialist (HRS) in response to the suspension notice, and the AJ found that S1 credibly testified that she never saw the note. The Division Manager (DM) who sustained the suspension testified that he did so because Complainant did not offer evidence that there was a hostile environment in the QA-12 Branch, that S1 participated in a hostile environment, or that Complainant had a medical condition that prevented her from working in the QA-12 Branch.
The AJ concluded that Complainant was not a qualified individual with a disability because she could not perform the essential functions of her position. He found that the doctor's notes Complainant submitted to the Agency did not identify any restrictions that required reasonable accommodation, that Complainant did not follow leave procedures when she refused to communicate with S1, and that Complainant refused to cooperate with S1's and HRS's attempts to engage in the interactive process.
With respect to Complainant's claim that S1 discriminatorily ordered her to attend training in January 2014 and charged her with being Absent Without Leave (AWOL) when she did not report for training, the AJ found that S1 treated Complainant similarly to the way in which she treated other engineers in the QA-12 Branch. He noted that S1 expected the other engineers who had been reassigned to the Branch to attend training. He also noted that, rather than respond to S1's e-mail directing her to report to work after she did not attend the first day of training, Complainant sent an e-mail to DH3 and HRS requesting annual leave and LWOP. On February 7, 2014, DM sent Complainant a Request for Detailed Medical Documentation asking Complainant to provide her physician's medical opinion concerning the nature and severity of her impairment, its affect on her activities, the estimated date of recovery, her ability to perform the essential functions of her position, and the particular accommodation requested. He also asked an employee in personnel to change Complainant's January 2014 AWOL charge to annual leave. On February 24, Complainant submitted a request for LWOP from February 26 through August 26, 2014. She submitted medical documentation on March 5, 2014, and S1 approved Complainant's LWOP request on March 11, 2014.
Considering the totality of the circumstances, the AJ found that Complainant did not establish pretext for unlawful discrimination on any basis for any of her claims. In addition, he found that a reasonable person would not have found that the Agency's actions concerning any of the matters at issue were so objectively hostile or abusive as to alter the conditions of employment.
Complaint Processing
Finally, the AJ found that Complainant did not establish that the Agency improperly processed her complaints and amendments. He concluded that Agency personnel reasonably tried to handle Complainant's many amendments in the best way that they could and that the Agency did not deny her official or personal time to handle her amendments.
The Agency issued a final order fully implementing the AJ's decision, including the corrective actions that the AJ ordered regarding the PEM claim. This appeal followed.
CONTENTIONS ON APPEAL
On appeal, Complainant, through her non-attorney representative, asks the Commission to reverse the AJ's findings. She argues, among other things, that the AJ erroneously contradicted his January 29, 2014, ruling granting a default judgment to Complainant on the PEM claim. She asserts that the AJ confused a mixed-motives analysis with a same-decision defense. According to Complainant, the AJ should have required the Agency to establish that a protected characteristic was not a motivating factor for the Agency's actions concerning the PEM assignment and her reassignment to the QA-12 Branch. In addition, Complainant asserts that the AJ erroneously nullified the adverse inference when he stated that she had not shown that the documents involved in the record-keeping violation would have established that the Agency treated similarly situated employees differently. She argues that the "relevant documents" would have enabled her to establish pretext and that the adverse inference should result in a finding of discrimination with respect to several of her claims. Further, Complainant contends that the Agency subjected her to retaliation, disparate treatment, and a hostile work environment. Finally, Complainant argues that the Agency "fragmented the issues" and processed her complaints improperly.
In response, the Agency argues that substantial evidence supports the AJ's findings of fact. The Agency contends that the AJ's rulings concerning the default judgment on the PEM claim were consistent and that he correctly determined that the Agency established through clear and convincing evidence that it had a legitimate reason for its action. The Agency further contends that the AJ properly found that the Agency had legitimate motives for Complainant's PEM and QA-12 Branch assignments. In addition, the Agency argues that the AJ had discretion to impose, withdraw, or modify an adverse inference. It notes that it provided documents to Complainant two months before the hearing and argues that Complainant did not show that the delayed production of documents adversely affected her ability to present her case. The Agency contends that the AJ correctly found that Complainant did not meet her burden of proof regarding the claims at issue and that the Agency processed Complainant's complaints properly.
STANDARD OF REVIEW
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by an AJ will be upheld if supported by substantial evidence in the record. Substantial evidence is defined as "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Universal Camera Corp. v. Nat'l Labor Relations Bd., 340 U.S. 474, 477 (1951) (citation omitted). A finding regarding whether discriminatory intent existed is a factual finding. See Pullman-Standard Co. v. Swint, 456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a de novo standard of review, whether or not a hearing was held. See 29 C.F.R. � 1614.405(a). An AJ's credibility determination based on the demeanor of a witness or on the tone of voice of a witness will be accepted unless documents or other objective evidence so contradicts the testimony or the testimony so lacks in credibility that a reasonable fact-finder would not credit it. See EEOC Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), Ch. 9, at � VI.B. (Aug. 5, 2015).
ANALYSIS AND FINDINGS
Default Judgment and Adverse Inference
The Commission's regulations afford broad authority to AJs for the conduct of hearings. See 29 C.F.R. � 1614.109; EEOC MD-110, Ch. 7, � III(D). An AJ has inherent powers to conduct a hearing and to issue appropriate sanctions, including a default judgment. See id.; Matheny v. Dep't of Justice, EEOC Request No. 05A30373 (Apr. 21, 2005). Where a party fails to respond to an order of an AJ, the AJ may, as appropriate, act against the non-complying party pursuant to 29 C.F.R. � 1614.109(f)(3). An AJ may: (1) draw an adverse inference that the requested information would have reflected unfavorably on the non-complying party; (2) consider the requested information to be established in favor of the opposing party; (3) exclude other evidence offered by the non-complying party; (4) issue a decision fully or partially in favor of the opposing party: or (5) take other action deemed appropriate, e.g., payment of costs and expenses by the non-complying party. Id.
In general, the Commission has held that sanctions, while corrective, also can prevent similar misconduct in the future. Given these purposes, sanctions must be tailored to each situation, applying the least severe sanction necessary to respond to the party's failure to show good cause for its actions, as well as to equitably remedy the opposing party. See Gray v. Dep't of Defense, EEOC Appeal No. 07A50030 (Mar. 1, 2007); Rountree v. Dep't of the Treasury, EEOC Appeal No. 07A00015 (July 13, 2001); Hale v. Dep't of Justice, EEOC Appeal No. 01A03341 (Dec. 8, 2000). The Commission's interest lies in deterring the underlying conduct of the non-complying party, and protecting its administrative process from abuse by either party to ensure that agencies, as well as complainants, abide by its regulations. See Royal v. Dep't of Veterans Affairs, EEOC Request No. 0520080052 (Sept. 25, 2009). The factors pertinent to "tailoring" a sanction, or determining whether a sanction is, in fact, warranted, include the following: (1) the extent and nature of the non-compliance, including the justification presented by the non-complying party; (2) the prejudicial effect of the non-compliance on the opposing party; (3) the consequences resulting from the delay in justice, if any; and (4) the effect on the integrity of the EEO process. Id.; see also Gray, EEOC Appeal No. 07A50030; Voysest v. Soc. Sec. Admin., EEOC Appeal No. 01A35340 (Jan. 18, 2005).
When default judgment has been issued in favor of a complainant, the Commission must determine if there is evidence that establishes the complainant's right to personal relief. See Jeremy S. v. Dep't of Veterans Affairs, EEOC Appeal No. 0120142917 (Feb. 9. 2017). One way to show a right to relief is to establish the elements of a prima facie case. See Royal, EEOC Request No. 0520080052; Matheny, EEOC Request No. 05A30373.
In this case, the AJ found that a default judgment was an appropriate sanction for the Agency's failure to complete the investigation into the PEM claim in a timely manner. Although he initially stated in an Order that Complainant had established a prima facie case of discrimination, he subsequently revised that ruling. The AJ notified the parties that the Agency could limit damages by establishing through clear and convincing evidence that it would have taken the same action absent the default judgment and that Complainant would have an opportunity to rebut the Agency's evidence. Following a hearing in which Complainant had a full opportunity to present her evidence, the AJ found that Complainant did not establish a prima facie case of discrimination and that the Agency established that it would have taken the same action.
We see no reason to disturb the AJ's findings in this area. There is no merit to Complainant's claim that the Agency had the burden of establishing by clear and convincing evidence that a protected characteristic was not a motivating factor. As noted above, Complainant could demonstrate a right to personal relief by establishing a prima facie case of discrimination. She has not done so. Complainant has not shown that the AJ erroneously concluded that CW1, who received the same PEM expectation as Complainant, was the only appropriate comparator.
To ensure that the Agency, which adopted the AJ's findings, has complied with the AJ's order of corrective action, we will again order the corrective action. To clarify that we are not ordering the Agency to provide relief that it has already provided, the order below directs the Agency to take steps "to the extent that it has not already done so."
With respect to the adverse inference, the AJ noted that the Agency located "numerous documents" believed to have been destroyed and provided them to Complainant before the hearing. Although Complainant argues on appeal that the "relevant documents" would have enabled her to establish that the Agency's articulated reasons for its actions were pretextual, she has not explained why she believes that to be the case. She has not refuted the AJ's statement that the Agency in fact provided documents to her before the hearing and has not explained why those documents were insufficient. Further, even in light of the adverse inference, the record does not establish that the Agency discriminated against Complainant. An adverse inference does not automatically result in a finding of discrimination. See Newbold-Reese v. Dep't of Veterans Affairs, EEOC Appeal No. 0120073324 (Nov. 17, 2009) (no discrimination found where, even with an adverse inference for failure to preserve records from the selection process, the record did not establish that complainant would have been chosen over the selectee for the position); Cosentine v. Dep't of Homeland Sec., EEOC Appeal No. 07A40114 (Aug. 9, 2006) (same).
Discrimination and Harassment Allegations
To prevail in a disparate-treatment claim, a complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). The complainant must initially establish a prima facie case by demonstrating that she or he was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Construction Co. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie case will vary depending on the facts of the particular case. McDonnell Douglas, 411 U.S. at 802 n.13. The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately prevail, a complainant must prove, by a preponderance of the evidence, that the Agency's explanation is pretextual. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Center v. Hicks, 509 U.S. 502, 519 (1993). He or she can do this by showing that the proffered explanations are unworthy of credence or that a discriminatory reason more likely motivated the Agency. Burdine, 450 U.S. at 256. A showing that the employer's articulated reasons are not credible permits, but does not compel, a finding of discrimination. Hicks at 511.
To establish a claim of harassment, Complainant must show that: (1) she is a member of a statutorily protected class; (2) she was subjected to unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on the protected class; (4) the harassment had the purpose or effect of unreasonably interfering with the work environment and/or creating an intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing liability to the employer. Humphrey v. U.S. Postal Serv., EEOC Appeal No. 01965238 (Oct. 16, 1998); 29 C.F.R. � 1604.11. The harasser's conduct should be evaluated from the objective viewpoint of a reasonable person in the victim's circumstances. Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (Mar. 8, 1994). The evaluation "requires careful consideration of the social context in which particular behavior occurs and is experienced by its target." Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 81 (1998).
In this case, even assuming that Complainant established prima facie cases of discrimination, we agree with the AJ's determination that Complainant did not prove that the Agency's articulated reasons were pretexts for discrimination. For example, substantial evidence of record establishes that Complainant did not receive pay raises because she did not meet the performance benchmarks that would have justified salary increases. The evidence similarly establishes that the Agency reassigned Complainant to the QA-12 Branch because of pressure to reduce non-refundable, overhead funding levels and that it cancelled Complainant's telework agreement to allow S1 to determine whether telework would meet organizational needs. To the extent that Complainant disagrees with the AJ's factual and credibility findings, her arguments are not persuasive. We find that substantial evidence supports the AJ's determination that the Agency did not discriminate against Complainant on the bases of race, national origin, color, sex, age, disability, and reprisal for prior protected EEO activity with respect to any of the matters alleged.
Complainant has not established that the Agency took the actions at issue here because of her protected characteristics. Accordingly, we find that she has not established that the Agency discriminatorily subjected her to a hostile work environment.
Complaint Processing
The record does not support Complainant's allegation that the Agency processed her complaints improperly. To the extent that Complainant is alleging that the Agency inappropriately processed the PEM allegation as a separate complaint, we note that it ultimately was consolidated with Complainant's other allegations. Moreover, the AJ issued a default judgment on that claim because of the Agency's untimely investigation. We agree with the AJ's conclusion that Agency personnel tried to handle Complainant's many claims and amendments in the best way that they could.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency's final order, which implemented the AJ's decision.
ORDER
Within one hundred and twenty (120) calendar days from the date this decision is issued, to the extent that it has not already done so, the Agency is ORDERED to undertake the following actions:
1. The Agency shall ensure that the relevant management EEO employees and management officials are made aware of the procedural requirements to comply with timely investigations as required by 29 C.F.R. � 1614.108(e). The Agency's EEO employees shall be trained on how to monitor the investigative time lines to be in full compliance with the seminal ruling in Royal v. Department of Veterans Affairs, EEOC Request No. 0520080052 (September 25, 2009), and not risk an untimely investigation that would affect the integrity of the EEO process.
2. The Agency shall compensate Complainant for reasonable attorney's fees and costs as defined in this decision after Complainant submits the required petition and documentation to support her claims.
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 verifying that the corrective action has been implemented.
POSTING ORDER (G0617)
The Agency is ordered to post at its NSWC, Corona, facility copies of the attached notice. Copies of the notice, after being signed by the Agency's duly authorized representative, shall be posted both in hard copy and electronic format by the Agency within 30 calendar days of the date this decision was issued, and shall remain posted for 60 consecutive days, in conspicuous places, including all places where notices to employees are customarily posted. The Agency shall take reasonable steps to ensure that said notices are not altered, defaced, or covered by any other material. The original signed notice is to be submitted to the Compliance Officer as directed in the paragraph entitled "Implementation of the Commission's Decision," within 10 calendar days of the expiration of the posting period. The report must be in digital format, and must be submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. � 1614.403(g).
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 Complainant. If the Agency does not comply with the Commission's order, the Complainant may petition the Commission for enforcement of the order. 29 C.F.R. � 1614.503(a). The Complainant 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 Complainant 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 Complainant 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.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
The Commission may, in its discretion, reconsider the decision in this case if the Complainant or the Agency submits a written request containing arguments or evidence which tend to establish that:
1. The appellate decision involved a clearly erroneous interpretation of material fact or law; or
2. The appellate decision will have a substantial impact on the policies, practices, or operations of the Agency.
Requests to reconsider, with supporting statement or brief, must be filed with the Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. A party shall have twenty (20) calendar days of receipt of another party's timely request for reconsideration in which to submit a brief or statement in opposition. See 29 C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9 � VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. Complainant's request may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, the request to reconsider shall be deemed timely filed if it is received by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. � 1614.604. The agency's request must be submitted in digital format via the EEOC's Federal Sector EEO Portal (FedSEP). See 29 C.F.R. � 1614.403(g). The request or opposition must also include proof of service on the other party.
Failure to file within the time period will result in dismissal of your request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted with your request for reconsideration. The Commission will consider requests for reconsideration filed after the deadline only in very limited circumstances. See 29 C.F.R. � 1614.604(c).
COMPLAINANT'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 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
___4/27/18_______________
Date
1 This case has been randomly assigned a pseudonym which will replace Complainant's name when the decision is published to non-parties and the Commission's website.
2 In his post-hearing decision, the AJ noted that Complainant previously alleged that the Agency had breached an agreement settling a prior EEO complaint when it issued the PEM. He also noted that the EEOC's Office of Federal Operations affirmed the Agency's final decision finding that it had not breached the agreement. See EEOC Appeal No. 012013025 (Oct. 24, 2013). He stated that, during the pre-hearing process, he denied the Agency's motion to dismiss the allegation because he concluded that Complainant's allegation that the PEM was discriminatory was not identical to her allegation that the Agency breached the settlement agreement by issuing the PEM.
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