Nannie D.,1 Petitioner,v.Dr. Mark T. Esper, Secretary, Department of the Army, Agency.

Equal Employment Opportunity Commission

Mar 8, 2018

0420170013 (E.E.O.C. Mar. 8, 2018)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Nannie D.,1
Petitioner,

v.

Dr. Mark T. Esper,
Secretary,
Department of the Army,
Agency.

Petition No. 0420170013

Appeal No. 0720150021

Hearing No. 551-2012-00095X

Agency No. ARIMWE11MAR01153

DECISION ON A PETITION FOR ENFORCEMENT

On March 3, 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. 0720150021 (April 28, 2016). The Commission grants this petition for enforcement
pursuant to 29 C.F.R. § 1614.503.

BACKGROUND

At the time of events giving rise to this complaint, Petitioner worked as a Labor Attorney at the
Agency’s Joint Base Lewis-McChord facility in Washington. On May 23, 2011, Petitioner filed a
complaint in which she alleged that the Agency discriminated against her and subjected her to a
hostile work environment on the bases of her national origin (Hispanic), sex (female), and in
reprisal for prior protected EEO activity. Following an investigation, the Agency provided
Petitioner with a copy of the report of investigation and notice of her right to request a hearing
before an Equal Employment Opportunity Commission Administrative Judge (AJ). Petitioner
requested a hearing. The AJ held a hearing on July 30-31 and September 12 and 19, 2013. On

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.
0420170013

2
December 17, 2014, the AJ issued a decision finding that the Agency subjected Petitioner to
unlawful harassment on the basis of reprisal.

By way of remedies, the AJ ordered the Agency to: (1) pay Petitioner $35,000.00 in
nonpecuniary, compensatory damages; (2) pay Petitioner attorney’s fees and costs; (3) provide
training to Agency employees regarding reprisal; (4) reinstate all sick and annual leave used by
Petitioner between September 27, 2010 and November 30, 2011; (5) ensure all employees are
protected against retaliation; and (6) post a Notice of the finding of discrimination. The Agency
issued a final order, dated February 2, 2015, accepting the AJ’s finding of discrimination and
implementing the ordered relief. On May 5, 2015, the AJ issued a separate decision on attorney’s
fees and costs. In that decision, the AJ reduced the requested travel time by 50% and applied an
across-the-board reduction of 25% based on the partial finding of liability. According, the AJ
ordered the Agency to pay Petitioner $91,308.75 in attorney’s fees and $6,916.27 in costs.

On appeal, Petitioner requested that the Commission increase the compensatory damage award
to $90,000.00. Petitioner also argued that the AJ erred in applying a 25% reduction as the bases
of national origin and sex were not fractionable from the basis of reprisal. In EEOC Appeal No.
0720150021, the Commission affirmed the AJ’s award of $35,000.00 in compensatory damages.
With respect to the issue of attorney’s fees, however, we found that the AJ erred in applying the
25% across-the-board reduction because the bases of national origin and sex could not be shown
to be distinct from the basis of retaliation upon which Petitioner had prevailed in her underlying
complaint. Accordingly, we modified the award and ordered the Agency to pay Petitioner
$121,745.00 in attorney’s fees and $8,367.53 in costs.

In our Order, the Commission instructed the Agency to pay Petitioner compensatory damages
and attorney’s fees and costs within 60 days of the date on which the decision became final. Our
Order also specified that the Agency had to: (1) provide training to all managers, supervisors,
and employees at Petitioner’s facility within 180 days; (2) restore Petitioner’s sick and annual
leave within 60 days; and (3) consider taking disciplinary action against the responsible Agency
employees found to have discriminated against Petitioner.

The Agency was issued an acknowledgment letter providing the contact information for the
Compliance Officer assigned to the matter and indicating that the Agency should provide its
compliance report as ordered. The Commission has made multiple attempts to contact the
Agency for documentation of compliance with our Order. The Commission sent the Agency
notice of the Petition, which was docketed on March 3, 2017. Following additional attempts to
obtain evidence of compliance, the Agency submitted a voucher showing that the ordered
attorney’s fees has been paid to Complainant. Accordingly, we find that the Agency has
complied with that provision of our Order. The Agency also provided a Compliance Report,
dated March 4, 2015, stating in relevant part, that it: (1) posted a notice; (2) completed the
required forms to effect payment of compensatory damages; (3) is investigating the potential
need for discipline; and (4) is working to reinstate annual and sick leave as ordered. The Agency
has not, however, provided any evidence to show that it has actually taken the actions set out in
the compliance report, aside from posting the notice.
0420170013

3
We note that there is no evidence that the compensatory damage award has been paid to
Complainant; nor is there evidence to show that the leave has been restored; or that a
determination has been made with respect to discipline.

We remind the parties that the Commission has “the inherent power to control and prevent abuse
of its orders, processes and procedure” and “the Commission can and will impose sanctions for
Agency malfeasance.” Turner v. Dep't of the Interior, EEOC Petition No. 04980037 (Aug. 5,
1999); see Byrd v. Dep't of Agriculture, EEOC Petition No. 04980004 (Dec. 12, 1997). EEOC
Regulation 29 C.F.R. § 1614.503(e) expressly authorizes the Commission to issue a notice to
show cause to the head of a federal agency regarding failure to comply with Commission's
orders. Continuing failure to comply with an order of the Commission can also result in this case
being certified to the Office of Special Counsel for enforcement action. 29 C.F.R. §1614.503 (f).

CONCLUSION

Based on a thorough review of the record the petition for enforcement in GRANTED. The
Agency shall take action in accordance with this decision and the ORDER herein.

ORDER
Within 60 days of the date this decision is issued, the Agency is ordered to take the following
remedial action:
1. The Agency shall pay Petitioner $35,000.00 in nonpecuniary, compensatory
damages.
2. The Agency shall restore all sick and annual leave used by Petitioner between
September 27, 2010 and November 30, 2011.
3. The Agency shall consider taking disciplinary action against responsible
Agency employees found to have discriminated against Petitioner. The
Agency shall report its decision to the Commission. If the Agency decided to
take disciplinary action, then it shall identify the action taken. If the Agency
decided not to take disciplinary action, it shall set forth the reasons for its
decision not to impose discipline.
4. The Agency is further directed, within 90 days of the date this decision is
issued, to provide 4 hours of training to all managers, supervisors, and
employees at Joint Base Lewis-McChord on their rights and responsibilities
under EEO law, with particular focus on preventing unlawful retaliation.
The Agency is further directed to submit a 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). Further,
the report must include evidence that the corrective action has been implemented.
0420170013

4

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
0420170013

5
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.

0420170013

6
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

March 8, 2018
Date