[Redacted], Erik S., 1 Petitioner,v.Merrick B. Garland, Attorney General, Department of Justice (Federal Bureau of Prisons), Agency.

Equal Employment Opportunity Commission

Dec 13, 2021

Appeal No. 0120181994 (E.E.O.C. Dec. 13, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Erik S.,1 Petitioner, v. Merrick B. Garland, Attorney General, Department of Justice (Federal Bureau of Prisons), Agency. Petition No. 2020003869 Appeal No. 0120181994 Agency No. BOP-2016-0197 DECISION ON A PETITION FOR ENFORCEMENT On June 23, 2020, 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. 0120181994 (Sept. 25, 2019). The Commission accepts 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 GL-0007-07 Correctional Officer at the Agency’s Federal Correctional Complex (FCC) facility in Coleman, Florida. Petitioner filed a complaint in which he alleged that the Agency discriminated against him on the bases of race (Caucasian), national origin (American, perceived as Arab), sex (male), religion (Muslim), and disability in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq. and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. 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. 2020003869 2 Petitioner appealed the Agency’s final decision to the Commission. On September 25, 2019, in EEOC Appeal No. 0120181994, the Commission found that the Agency discriminated against Petitioner based on national origin and religion when it did not select him for a GL-0007-08 Correctional Officer position in 2015. As relief, the Commission ordered the Agency to take the following remedial action within sixty calendar days of the date the decision is issued, unless otherwise specified: 1. The Agency shall promote Petitioner to the GL-0007-08 Correctional Officer position advertised under vacancy announcement COA-2015-0075, retroactive to the date of his nonselection; 2. The Agency shall determine the amount of back pay, with interest and other benefits, due Petitioner, and pay Petitioner the undisputed amount within sixty calendar days of the date the Agency determines the amount it believes to be due; 3. The Agency shall conduct a supplemental investigation on Petitioner’s entitlement to compensatory damages, issue a final decision on compensatory damages, and pay Petitioner the undisputed amount within sixty calendar days of the date the Agency determines the amount it believes to be due; 4. Within 90 calendar days of the date the appellate decision is issued, the Agency shall provide a minimum of eight hours of EEO training to the responsible management officials, including the officials identified in the appellate decision as S1, S2, S3, S4, and HR1; 5. The Agency shall consider appropriate disciplinary action against the responsible management officials, including S1, S2, S3, S4, and HR1; and 6. Within 30 calendar days of the date the appellate decision is issued, the Agency shall post a notice. The Agency was further directed to submit a report of compliance to the Commission and to send a copy of all submissions to Petitioner. The matter was assigned to a Compliance Officer and docketed as Compliance No. 2020000076 on October 3, 2019. On January 30, 2020, Petitioner submitted the petition for enforcement at issue. Petitioner contends that the Agency failed to comply with the Commission’s order and failed to provide Petitioner with documentation of compliance.2 On June 23, 2020, we docketed the instant petition for enforcement. On June 26, 2020, we notified the Agency that monitoring of the compliance matter was suspended pending a decision on the petition for enforcement. 2 On March 16, 2020, Petitioner requested that the Commission refer the matter to the Office of Special Counsel. As the Compliance Officer explained in a May 21, 2020, email to Petitioner, 29 C.F.R. § 1614.503(f) states, “Where appropriate and pursuant to the terms of a memorandum of understanding, the Commission may refer the matter to the Office of Special Counsel for enforcement action.” 2020003869 3 The Agency submitted compliance reports to the Commission on February 20, 2020, and on March 25, 2020. The Agency provided evidence that Petitioner was retroactively promoted to the GL-0007-08 Correctional Officer position, effective November 29, 2015. Regarding back pay, interest, and other benefits, the Agency provided evidence that, on March 5, 2020, it paid Petitioner $4,344.63. The Agency stated that, because it had failed to reach an agreement on compensatory damages and attorney’s fees with Petitioner, it had requested a final decision on that matter on January 21, 2020. Regarding the order to provide training to and consider discipline against the responsible management officials, the Agency provided evidence that S1, S2, S3, S4, and HR1 had retired between December 13, 2015 and December 31, 2018. Finally, the Agency provided evidence that it had posted a hard copy of the notice, sent a copy of the notice to all staff by email, and posted a copy in an electronic format from November 7, 2019, through January 2, 2020. According to the Commission’s records, on July 28, 2020, the Agency issued its final decision on compensatory damages and attorney’s fees and costs. Petitioner appealed the decision on compensatory damages and attorney’s fees, which is separately docketed and addressed as Appeal No. 2020004617. 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 in EEOC Appeal No. 0120181994. The Agency has provided evidence establishing that the Agency retroactively promoted Petitioner, posted the notice, and could not provide training to or consider discipline against the responsible management officials because they had retired. After a review of the record, we find that the Agency, while establishing compliance with much of our previous order, has failed to comply with our order concerning its calculations of back pay, interest, and other benefits. See Michelle G. v. Dep’t of the Navy, EEOC Petition No. 2019005145 (Feb. 14, 2020) (granting petition for enforcement where agency failed to explain how it determined the amount of back pay due petitioner). Although the Agency has submitted documentation that it paid Petitioner $4,344.63 as back pay and interest, it has failed to clearly and sufficiently explain its calculations. The Agency has failed to clearly explain how it came to the ultimate determination of how much is owed to Petitioner. Therefore, we agree with Petitioner that the Agency has yet to fully comply with our order, specifically with respect to providing its specific reasoning and calculations on how it reached the amount owed for lost wages and interest. While Petitioner did not provide his own calculations of the amount of back pay and interest, he seeks to know how the Agency arrived at its amount, as directed in our prior order. Additionally, because Petitioner is a prevailing party in this petition for enforcement, we also order the Agency to award Petitioner attorney's fees, if any, incurred as a result of his need to file this petition for enforcement. 2020003869 4 On July 28, 2020, the Agency issued its final decision on compensatory damages and attorney’s fees, awarding Petitioner $30,000 in nonpecuniary compensatory damages and $1,975.40 in attorney’s fees and costs. However, this matter is before the Commission and will be addressed in Appeal No. 2020004617. Accordingly, based on a thorough review of the record, the Commission GRANTS Petitioner's Petition for Enforcement. For further action in accordance with this decision and the ORDER below, we REMAND the matter to the Agency for further explanation of calculation of back pay. ORDER Within thirty calendar days of the date this decision is issued, the Agency shall provide Petitioner with its specific reasoning and calculations on how it determined the amount of back pay and interest and, if necessary, pay any additional amounts due. 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, including supporting documentation of the Agency's calculation of back pay and other benefits due Petitioner. ATTORNEY'S FEES (H1019) If Petitioner 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 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. 2020003869 5 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 (T0610) This decision affirms the Agency’s final decision/action in part, but it also requires the Agency to continue its administrative processing of a portion of your complaint. 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 on both that portion of your complaint which the Commission has affirmed and that portion of the complaint which has been remanded for continued administrative processing. 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 your appeal with the Commission, until such time as the Agency issues its final decision on your complaint. 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. 2020003869 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 December 13, 2021 Date