U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Irvin M.,1 Petitioner, v. Alejandro N. Mayorkas, Secretary, Department of Homeland Security (Federal Emergency Management Agency), Agency. Petition No. 2020004261 Request No. 2019003340 Appeal No. 0120170498 Hearing No. 551-2012-00206X Agency No. HS-FEMA-21641-2012 DECISION ON A PETITION FOR ENFORCEMENT On July 20, 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 Request No. 2019003340 (October 23, 2019). The Commission accepts this petition for enforcement pursuant to 29 C.F.R. § 1614.503. Petitioner alleges that the Agency has not fully complied with the Commission’s orders. BACKGROUND At the time of his application for the position in question, Petitioner worked as a Supervisory Response Division Director, GS-0301-15, for the Agency’s Region X located in Bothell, Washington. In December 2011, Petitioner applied, but was not selected, for a Deputy Regional Administrator, GS-0340-15, position vacancy which was also located at the Region X office. 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. 2 2020004261 Agency No. HS-FEMA-21641-2012, EEOC Hearing No. 551-2012-00206X Petitioner filed a formal EEO complaint alleging the Agency discriminated against him on based on race (Caucasian), color (white), sex (male), age (44), and in reprisal for prior protected EEO activity. Specifically, Petitioner claimed that he was improperly excluded from the final round of interviews, and a female candidate without Agency management or interagency coordination experience was selected for the position. The Agency issued a final decision finding no discrimination or unlawful retaliation was established. Petitioner appealed the Agency’s final decision. Appeal No. 0120170498 In Irvin M. v. Dep’t of Homeland Sec., EEOC Appeal No. 0120170498 (April 25, 2019), the Commission found that the final decision was issued 150 days past the Agency’s requirement to issue a final decision in 60 days. 29 C.F.R. §1614.110. As a result, the Commission sanctioned the Agency by reversing the final decision and rendering a default decision in Petitioner’s favor. The Commission’s default judgment decision held that the Agency had denied Petitioner the position based on sex. The Commission ordered the Agency to undertake the following remedial actions no later than 120 calendar days from the date of our appellate decision: 1. The Agency shall offer [Petitioner] placement into the Deputy Regional Administrator position at issue in this case, or a substantially equivalent position, retroactive to the date of the appointment of the selectee into the position. The Agency shall grant [Petitioner] fifteen (15) days to determine whether to accept the position. Should [Petitioner] reject the job offer, [Petitioner]’s entitlement to back pay shall terminate as of the date of rejection. 2. The Agency shall determine the appropriate amount of back pay with interest, and other benefits due to [Petitioner], pursuant to 29 C.F.R. § 1614.501. The back-pay award shall reflect all career ladder promotions to which an employee in [Petitioner]’s position who performed in a fully successful manner was entitled. The [Petitioner] shall cooperate in the Agency’s efforts to compute the amount of back pay and benefits due and shall provide all relevant information requested by the Agency. If there is a dispute regarding the exact amount of back pay and/or benefits, the Agency shall issue a check to the [Petitioner] for the undisputed amount. The [Petitioner] may petition for enforcement or clarification of the amount in dispute. The petition for clarification or enforcement must be filed with the Compliance Officer, at the address referenced in the statement entitled “Implementation of the Commission’s Decision.” 3. The Agency shall also pay compensation for the adverse tax consequences of receiving back pay as a lump sum. [Petitioner] has the burden of establishing the amount of tax liability, if any. Once the Agency has calculated the proper amount of back pay, [Petitioner] shall be given the opportunity to present the 3 2020004261 Agency with evidence regarding the adverse tax consequences, if any, for which [Petitioner] shall then be compensated. 4. The Agency will conduct and complete a supplemental investigation on the issue of [Petitioner]’s entitlement to compensatory damages and afford him an opportunity to establish a causal relationship between his non-selection and pecuniary or non-pecuniary losses, if any. [Petitioner] will cooperate in the Agency’s efforts to compute the amount of compensatory damages and will provide all relevant information requested by the Agency. The Agency will issue a final decision on the issue of compensatory damages. 29 C.F.R. § 1614.110. The final decision shall contain appeal rights to the Commission. The Agency shall submit a copy of the final decision to the Compliance Officer at the address set forth herein. 5. The Agency shall provide at least two (2) hours of in-person training to all EEO officials involved in processing complaints regarding their case processing responsibilities, with special emphasis on the important of abiding by regulatory mandates and time limits. In addition to the orders referenced above, the Agency was required to post a notice about EEOC’s finding of discrimination at the Agency’s Region X office. Request for Reconsideration/Request for Clarification No. 2019003340 On May 10, 2019, Petitioner filed a request for reconsideration of the Commission’s appellate decision. EEOC ceased monitoring compliance as a result of Petitioner’s request. In EEOC Request No. 2019003340 (Oct. 23, 2019), we determined that what Petitioner had requested was clarification of remedies but found that, to the extent that he had petitioned for enforcement, his petition was premature at that juncture. As a result, EEOC directed the Agency to complete the remedial actions ordered in Appeal No. 0120170498. Unless it had already done so, the Agency was ordered to complete compliance as previously ordered within 90 calendar days from the date the decision on the request for reconsideration was issued. Current Petition for Enforcement - EEOC Petition No. 2020004261 On July 20, 2020, the instant petition for enforcement of the orders in EEOC Appeal No. 0120170498 was filed. Petitioner’s brief in support of the petition contends that the Agency failed to offer him placement in a substantially equivalent position to the one he was not selected for in this matter. Petitioner asserted that, but for the discrimination, he would have been promoted as the SES DRA for Region X. Petitioner stated that the Agency has proposed, but never officially offered, a Federal Coordinating Officer (FCO) GS-15 position which was inferior to the DRA position because the FCO position is not SES-echelon and does not entail managing a staff of hundreds of employees. Petitioner further contends that the FCO position is inferior to his current position as 4 2020004261 a GS-15 Response Division Director. We also read this petition to allege non-compliance with the Commission orders regarding backpay, the tax consequences for the backpay, and compensatory damages. Petitioner argues that the Agency’s ongoing non-compliance warrants new sanctions. Petitioner has provided his own calculations for front pay, taxes on front pay, future pecuniary damages, taxes on future pecuniary damages, leave restoration, taxes on leave restoration, fringe benefits, personally-owned vehicle travel for related healthcare, damage to reputation and damage to future earnings. Petitioner cited Knott v. U.S. Postal Serv., EEOC Appeal No. 0720100049 (July 5, 2011), and Brinkley v. U.S. Postal Serv., EEOC Request No. 05980429 (Aug.12, 1999), in support of his position that front pay should be awarded since the Agency could not place him in a SES equivalent position. On August 10, 2020, the Agency responded to the Petition. The Agency maintains that it has fully complied with EEOC’s Orders. The Agency explained that the DRA GS-15 position for which Petitioner had applied no longer exists. The Agency stated the position no longer exists because the Region X DRA position has been upgraded to an SES position. The employee selected for the Region X DRA then had to apply for the upgraded DRA SES position and was hired through a competitive process. The Agency asserted that because the Region X DRA SES position was a competitive hire, as opposed to an automatic conversion or ladder promotion, Petitioner is not entitled to the SES position. Instead, the Agency contends that Petitioner, as GS-15 Response Division Director, had applied for what was at the time a lateral GS-15 DRA position. The Agency reasoned that the FCO GS-15 position was the closest to Petitioner’s current GS-15 Response Division Director position. The Agency reasons that back pay and tax consequences were not at issue in this case because Petitioner was already in a GS-15 position and had applied for what was at the time an equivalent GS-15. The Agency stated that it received Petitioner’s submission on compensatory damages and had satisfied compliance by filing its report of investigation on compensatory damages. On the date of its response, the Agency claimed that it was in the process of setting up EEO training. ANALYSIS AND FINDINGS In reviewing the petition, we have examined the parties’ arguments, as well as the Agency’s records of compliance and the pertinent information which Petitioner provided to EEOC and the Agency. As an initial matter, we reject Petitioner’s requests for additional relief that manifestly exceed the scope of preceding orders at issue in this petition for enforcement. We are not persuaded by Petitioner’s argument that he was entitled to retroactive promotion to a SES DRA position. The order in EEOC Appeal No. 0120170498 stated that the Agency was to offer Petitioner placement into the DRA position at issue in his case, or a substantially equivalent position, retroactive to the date of the appointment of the selectee into the position. On the date Petitioner applied for the GS-15 DRA position, Petitioner’s selection would have amounted to a lateral transition for Petitioner, who was already a GS-15 Response Division Director. If Petitioner had been selected for the GS-15 DRA position to which he applied, then his pay would have remained the same and he would not have been entitled to any differential between his present GS-15 Response Division Director position and the GS-15 DRA that he sought. 5 2020004261 The Region X GS-15 DRA position, to which Petitioner applied, ceased to exist when the Agency eliminated it and replaced it with a SES DRA position for which there was a competitive selection. A plain reading of the phrase “substantially equivalent position” does not imply placing Petitioner in a grade higher than GS-15, but rather, placement into a position which is similar in duties, responsibilities, and location (reasonable commuting distance) to the position for which he originally applied. Otis Johnson v. Env’t Prot. Agency, EEOC Petition No. 0420060035 (Nov. 5, 2007). The FCO position was a GS-15 opportunity in Region X which had commensurate duties and responsibilities involving coordinating with other governmental agencies as opposed to managing employees. The Agency represents that the GS-15 FCO position was the closest fit to the GS-15 DRA position that no longer exists. We find that the FCO position is substantially equivalent to the GS-15 DRA position. In its response, the Agency further stated that the FCO position is no longer available to offer Petitioner. To the extent the Agency discussed offering the FCO position to Petitioner, the parties agree that Petitioner communicated his intention to reject it. Here, Petitioner applied competitively for the DRA GS-15 position which, at the time, did not include a career ladder progression to SES. Petitioner’s assertion that he would have obtained a SES position through the separate competitive promotion process but for the discrimination is speculative at best. Moreover, because we find that Petitioner’s claims of entitlement to SES promotion is speculative, his claims for backpay or payment of tax consequences are likewise speculative. Rafalski v. U. S. Postal Serv., EEOC Petition No. 04A30023 (Apr. 14, 2004). With respect to the award of non-pecuniary damages, on August 21, 2020, the Agency issued a final decision on the compensatory damages award for which Petitioner has filed a separate appeal (EEOC Appeal No. 2020005333), that is currently pending. Any concerns Complainant has about the amount of compensatory damages awarded by the Agency will be addressed in this other appeal. Regarding the training order, correspondence to EEOC’s compliance staff revealed that, on December 3, 2020, the Agency’s Office of General Counsel provided CRCL refresher training that adequately covered EEO processing timelines. Although there was not a sign-in sheet to document in-person attendance, the email demonstrated that responsible CRCL officials have received the appropriate training in accordance with EEOC’s order. In addition, the Agency has sufficiently evidenced full compliance with EEOC’s order to post a notice concerning the Commission’s finding of discrimination in this case. CONCLUSION Based on the foregoing, we find that the Agency is in substantial compliance with our orders originally issued in EEOC Appeal No. 0120170498 and the petition for enforcement is denied. 6 2020004261 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 April 25, 2022 Date
