[Redacted], Colene R., 1 Petitioner,v.Christine Wormuth, Secretary, Department of the Army, Agency.

Equal Employment Opportunity Commission

Feb 8, 2022

Appeal No. 0120180763 (E.E.O.C. Feb. 8, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Colene R.,1 Petitioner, v. Christine Wormuth, Secretary, Department of the Army, Agency. Petition No. 2021002210 Request No. 0520180405 Appeal No. 0120180763 Agency No. ARBLISS17APR01429 DECISION ON A PETITION FOR ENFORCEMENT On February 25, 2021, 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. 0120180763 (April 11, 2018), request for reconsideration denied, EEOC Request No. 0520180405 (October 12, 2018). See 29 C.F.R. § 1614.503. BACKGROUND Petitioner contacted an EEO Counselor, alleging that she had been subjected to discrimination based on race and national origin. On June 23, 2017, Petitioner and the Agency entered into a settlement agreement to resolve the matter. Petitioner later alleged that the Agency was in breach of the settlement. In EEOC Appeal No. 0120180763, the Commission concluded the Agency had breached the provision of the agreement to provide Petitioner with Focused Provider Practice Evaluation (FPPE) training and fund travel and per diem for training in accordance with the Joint Travel Regulation (JTR). 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. 2021002210 2 The Order in Appeal No. 0120180763 specified that the Agency had to provide Petitioner FPPE training in accordance with the settlement agreement. The decision stated that Petitioner was entitled to an award of reasonable attorney’s fees incurred in the processing of the complaint and directed the Agency to process Petitioner’s claim for attorney’s fees in accordance with 29 C.F.R. § 1614.501. The Agency filed a request for reconsideration, which was denied on October 12, 2018. EEOC Request No. 0520180405. That decision restated the order to provide FPPE training and also directed the Agency to process Petitioner’s claim for attorney’s fees in accordance with 29 C.F.R. § 1614.501. On October 12, 2018, the matter was docketed for compliance monitoring as Compliance No. 2019000269. On June 28, 2019, the Commission docketed a petition for enforcement, EEOC Petition No. 2019004328, and the Commission suspended compliance monitoring pending a decision on the petition for enforcement. The Agency had not filed the ordered report of compliance as ordered in EEOC Request No. 0520180405 or responded to related inquiries from the Commission until after the petition for enforcement was docketed. On January 31, 2020, the Commission issued its decision on Petition No. 2019004328. The Commission found that, although the Agency provided evidence that it had provided Petitioner with FPPE training, the Agency had not provided any documentation that it funded travel and per diem in accordance with the JTR as provided in the settlement agreement. We also found that the Agency’s failure to report on its compliance appeared to be part of a pattern of the Agency failing to provide compliance reports and/or evidence of compliance to the Commission. The Order in Petition No. 2019004328 directed the Agency to provide the EEOC Compliance Officer with proof it funded Petitioner’s travel and per diem in accordance with the JTR and also to provide a written report regarding Agency-wide compliance with EEOC orders in Fiscal Year 2018 - 2019 and a detailed action plan to the EEOC’s Director, Federal Sector Programs (FSP), Office of Federal Operations (OFO). On February 5, 2020, the Commission reactivated Compliance No. 2019000269. The Agency provided documentation to the Compliance Officer showing that it had funded Petitioner’s travel and per diem in accordance with the JTR and that it submitted a written report to the FSP Director. Regarding attorney’s fees, Petitioner’s attorney submitted a fee petition to the Agency on May 12, 2020, requesting reimbursement of attorney’s fees and costs from June 21, 2018, through May 11, 2020. On July 1, 2020, the Agency responded to the fee petition and submitted documents to the Commission showing payments on four different dates. However, Petitioner’s attorney informed the Compliance Officer that their firm’s Financial Department had no record of receiving payment. On February 25, 2021, the Commission docketed the instant petition for enforcement to examine whether the Agency had processed and paid Petitioner’s claim for attorney’s fees. 2021002210 3 ANALYSIS AND FINDINGS EEOC Regulation 29 C.F.R. § 1614.503(a) provides that an aggrieved person may petition for enforcement of an order issued by the Commission under its appellate jurisdiction. In this case, Petitioner alleges that the Agency is not in compliance with the Commission’s order to process her claim for attorney’s fees. In response to Petitioner’s May 12, 2020, fee petition, the Agency stated that it had already paid attorney’s fees and costs covering the period from June 23, 2017, through February 5, 2019. The Agency provided documents from the Defense Finance Accounting Service (DFAS) showing three payments made to the Albany, New York address of the law firm that employs the attorneys representing Petitioner. The first payment, made on July 6, 2017, corresponds to the amount of attorney’s fees and costs the Agency agreed to pay in the June 23, 2017, settlement agreement. Agency’s Response at Tab A. It is unclear if the second payment represents attorney’s fees and costs or if it is related to the instant matter.2 The third payment was made on March 13, 2019, in the amount of $9,219.88 and is described as attorney’s fees for Agency No. ARBLISS17APR01429. Agency Response at Tab C. We find that the Agency has provided documentation showing that it paid Petitioner attorney’s fees and costs through February 5, 2019. The Agency further contends that, upon receipt of Petitioner’s May 12, 2020, fee petition, it submitted a request for payment to DFAS in the amount of $13,224.70, representing attorney’s fees from February 6, 2019, through May 11, 2020. The Agency provided three documents to substantiate this request. The first document is a May 12, 2020, voucher requesting payment in the amount of $13,224.70 for attorney’s fees for Agency No. ARBLISS17APR01429. Agency Response at Tab D. The payee on the voucher is one of Petitioner’s attorneys, the address is the law firm’s Syracuse, New York address, and Petitioner’s name is listed as a reference. Id. The second document is an ACH Vendor/Miscellaneous Payment Enrollment Form that lists the payee as the law firm’s Albany address and describes an account at M&T Bank in Albany. Id. The third document appears to be a DFAS screenshot reflecting a July 1, 2020, payment in the amount of $13,224.70. Id. The screenshot does not display the full text in some of the fields. For example, the Reference field for the transaction reads “ARBLISS17APR014…”, which is missing two digits of Petitioner’s complaint number. Id. The Description field for the payment is also cut off, but the visible text appears to describe the name of a different law firm than Petitioner’s attorneys’ law firm. Id. The Agency has not provided clear documentation showing it paid Petitioner attorney’s fees and costs for the period from February 6, 2019, through May 11, 2020. 2 The second payment was made on October 25, 2018, in the amount of $4,000 as “MISC PAY for [Petitioner] ARBLISS18MAR01070.” Agency’s Response at Tab B. We note that the number in the description is different than the Agency’s docket number for the instant complaint, which is Agency No. ARBLISS17APR01429. 2021002210 4 Based on the evidence provided by the Agency, it appears that the payment for $13,224.70 may have been remitted to the wrong law firm. Accordingly, we cannot conclude that the Agency has fully complied with the Order in Request No. 0520180405. The Commission directs the Agency to immediately take action consistent with the Order below. ORDER 1. Within thirty calendar days of the date this decision is issued, the Agency shall provide the EEOC Compliance Officer with clear documentation showing that it paid Petitioner $13,224.70 in attorney’s fees and costs for the period from February 6, 2019, and May 11, 2020, to the appropriate law firm. 2. The Agency is further directed to submit its report of compliance in a 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). 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 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. 2021002210 5 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. 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 February 8, 2022 Date