[Redacted], Janita H., 1 Complainant,v.Merrick B. Garland, Attorney General, Department of Justice (Federal Bureau of Prisons), Agency.

Equal Employment Opportunity Commission

Mar 31, 2022

Appeal No. 2021000621 (E.E.O.C. Mar. 31, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Janita H.,1 Complainant, v. Merrick B. Garland, Attorney General, Department of Justice (Federal Bureau of Prisons), Agency. Appeal No. 2021000621 Hearing No. 430-2019-00245X Agency No. BOP-2018-00352 DECISION On October 30, 2020, Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.504(b), alleging the Agency was in noncompliance with its March 10, 2020 final decision (FAD) 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. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Senior Officer Specialist, GL-08, at the Agency’s Federal Correctional Center in Butner, North Carolina (hereinafter, “FCC Butner”). On April 26, 2018, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of race (African American) and sex (female) when, on December 29, 2017, and January 17 and 18, 2018, she was not selected for a Lieutenant position at FCC Butner, continuous open Vacancy announcement number, HRN-2017-0002. Additionally, on January 7, 2018, she was not selected for the second round of temporary Lieutenant promotions. 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. 2021000621 2 The Agency accepted the foregoing claims and conducted an investigation into the matter. At the conclusion of the investigation, the Agency attempted to provide Complainant with a copy of the report of investigation and notice of her right to request a hearing before an EEOC Administrative Judge (AJ). However, due to several errors, both the FAD and hearing processes continued improperly in tandem despite the fact that Complainant did request a hearing. On March 10, 2020, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The decision concluded that Complainant proved that the Agency subjected her to discrimination on the basis of sex as alleged, but not on the basis of race. In light of this decision, on March 26, 2020, the AJ assigned to the case granted Complainant’s request to withdraw her hearing request. The FAD ordered the following relief for Complainant: 1. Within 60 days of the date of this decision, BOP [the Bureau of Prisons] shall offer complainant the position of Lieutenant, HRN-2017-0002, or a substantially equivalent position at FCC Butner… 2. BOP is directed to award complainant back pay, with interest, and other benefits pursuant to 29 C.F.R. §1614.501. Back pay and benefits shall be calculated from December 29, 2017, up to the date on which complainant is offered a Lieutenant position. If BOP concludes that complainant would not have entered on duty as a Lieutenant until a later date, it should provide documentation supporting its conclusion. BOP shall determine the appropriate amount of back pay, interest, and other benefits due complainant, pursuant to 29 C.F.R. §1614.501 (b), within sixty days of the date complainant either accepts or declines an offer of employment…If there is a dispute regarding the exact amount of back pay and/or benefits, BOP shall issue a check to complainant for the undisputed amount and complainant may petition this office for enforcement or clarification of the amount in dispute. 3. As the prevailing party in this matter, complainant may be eligible for compensatory damages pursuant to Section 102 of the Civil Rights Act of 1991, 42 U.S.C. §1981(a). Complainant will be eligible for compensatory damages if she can demonstrate that she suffered injuries as a direct result of the discrimination found to have occurred in this decision. BOP shall attempt to determine from complainant, using statements from complainant and others who may have witnessed any emotional or other harm complainant suffered from the discrimination, including medical evidence, an appropriate award for any emotional harm suffered as a result of the disability discrimination in this case. In the event the parties are unable to agree upon an appropriate compensatory damages award, they should notify this office so that an appropriate award may be determined. 2021000621 3 4. As the prevailing party in this case, complainant is also entitled to an award of reasonable attorney's fees pursuant to 29 C.F.R. 1614.50l(b)… 5. Within thirty days of the date of this decision, BOP shall post a Notice within the administrative offices at FCC Butner, consistent with the requirements of 29 C.F.R. §1614.501(a). (Complaint File, pp. 23-25). On April 9, 2020, the Agency requested Complainant submit all evidence of compensatory damages she was claiming to the Agency’s EEO Officer within 30 days. Complainant, via her non-attorney representative, emailed her damages demand to the EEO Officer on May 6, 2020, and the EEO Office acknowledged receipt of the email. On June 10, 2020, Complainant’s representative followed up with the EEO Office via email, stating Complainant had not yet been promoted to GS-11 and that they had not heard how back pay was being calculated. The EEO Office responded that Human Resources staff was on a modified schedule due to COVID-19, but the backpay award and promotion to GS-11 were being processed. The parties continued to confer back and forth via email during June and July 2020. On September 2, 2020, Complainant’s representative again contacted the Agency to state the Complainant had not received her back pay. However, she noted Complainant had received a $14,000 deposit with no communication from the Agency. She indicated they believed the deposit was a compensatory damages award, but this was not the amount demanded. The EEO Office replied that the Agency’s attorney who was working on Complainant’s compensatory damages award said he had not received anything from Complainant’s representative since March 2020 and there was no specific claim for damages. When the issues were still not resolved, on October 5, 2020, Complainant emailed the EEO Officer stating the Agency was non-compliant with the FAD and there had been little to no cooperation from the Agency. On October 14, 2020, Complainant wrote an email stating she was sending notification of the Agency’s noncompliance with the FAD. She stated that she had “received placement in the position of Lieutenant in July 2020. I also received partial compensatory damages without supporting documentation in July 2020. No other remedies were complied with as of today.” (EEOC Appeal Supporting Documents, p. 26). On October 28, 2020, the Agency responded that it was their “understanding that BOP had complied with the terms of the decision.” The Agency provided the following explanation of how they had complied with the FAD: Within 60 days of the date of the decision the BOP shall offer Complainant the position of Lieutenant or a substantially similar equivalent position at FCC Butner [emphasis added]. 2021000621 4 You were offered and you accepted the position Lieutenant (GL-9/11) within 60 days of the decision. You then requested your grade be increased to GS-11 from GS-9. This was also done. While it took HR some time to complete this task in their system you were eventually retroactively paid the GS-11 rate from the date of your promotion to Lieutenant. BOP is directed to award complainant back pay, with interest, and other benefits retroactive to December 29, 2017 [emphasis added]. You claim you received partial compensatory damages in July. The payment in July should have been the backpay discussed above. The decision stated the BOP should determine the amount of back pay and interest. HR used the OPM calculator for backpay and interest and that is how they came to the dollar value you were paid. If you disagree with this amount, then we encourage you to work with us and provide any information or documentation in support of another number. Complainant will be eligible for compensatory damages if she can demonstrate she suffered injuries as a direct result of the discrimination found to have occurred in this decision [emphasis added]. You have not been paid any compensatory damages. In order for the BOP to pay these damages you need to demonstrate you suffered injuries stemming from the discrimination. However, until September 2020 no demand for compensatory damages was received by the BOP. The demand you or your representative sent in September was forwarded to the Employment Law Branch and is being reviewed. You should receive a response soon. Complainant is entitled to reasonable attorney’s fees [emphasis added]. You were not represented by an attorney, so this part of the order does not apply. Within 30 Days of the decision, the BOP shall post a Notice within the administrative offices at FCC Butner [emphasis added]. In April 2020, the notice was posted at FCC Butner. (EEOC Appeal Supporting Documents, pp. 25-26). Complainant filed the instant appeal seeking enforcement of the Agency’s FAD. On appeal, Complainant contends that despite multiple attempts to gain compliance from the Agency, she did not receive her promotion in the time frame required by the FAD; she was never offered or awarded backpay, interest, and other benefits, to include the calculations of backpay; there was no documentation to support the compensatory damages she received via direct deposit in July 2021000621 5 2020; and a Notice of Discrimination was never posted at FCC Butner. Complainant requested the Agency specifically comply with the FAD and she requested sanctions for their non- compliance. The Agency did not file a brief on appeal. ANALYSIS AND FINDINGS The Commission's regulations provide that a final action that has not been the subject of an appeal or civil action shall be binding on the Agency. 29 C.F.R. § 1614.504(a). If Complainant believes that the Agency has failed to comply with the terms of a decision, she shall notify the EEO Director, in writing, of the alleged noncompliance within 30 days of when Complainant knew or should have known of the alleged noncompliance. The Agency shall resolve the matter and respond to the Complainant, in writing. 29 C.F.R. § 1614.504(b). If Complainant is not satisfied with the Agency's attempt to resolve the matter, the Complainant may appeal to the Commission for a determination as to whether the Agency has complied with its decision. Id. Complainant may file such an appeal 35 days after he or she has served the Agency with the allegations of noncompliance, but must file an appeal within 30 days of his or her receipt of an Agency's determination. Id. If the Commission determines that the Agency is not in compliance with its decision, and the noncompliance is not attributable to acts or conduct of Complainant, it may order such compliance with the decision. 29 C.F.R. § 1614.504(c). Here Complainant filed her appeal two days after receiving the Agency’s written response and thus this appeal is properly before us for determination. Promotion Complainant has alleged the Agency did not timely promote her to GL-11 Lieutenant as required by the FAD. However, the Agency stated in its response, and Complainant admits, that she ultimately has been promoted to GL-11 Lieutenant. The exact dates of her promotion to GL-9 Lieutenant and subsequently GL-11 Lieutenant are not clear from the record, but pay stubs submitted by the Complainant for 2020 Pay Period 13 (June 21, 2020 to July 4, 2020) lists Complainant’s pay grade and step as GL-09/09. (EEOC Appeal Supporting Documents, p. 27). Her Pay Period 14 (July 5, 2020 to July 18, 2020) pay stub lists Complainant’s pay grade and step as GL-11/05. (EEOC Appeal Supporting Documents, p. 28). Given that Complainant has been retroactively promoted, we find that Complainant was not harmed by the delay and the Agency has substantially complied with this provision of the FAD. Backpay Complainant states she has not received any backpay. The Agency states the payment received by Complainant in July 2020 was her backpay. However, a pay stub submitted by the Complainant for 2020 Pay Period 13 shows a deposit of $14,003.61 listed as “COMPENSATORY DAMAGES”. (EEOC Appeal Supporting Documents, p. 27). 2021000621 6 The Agency provided no calculation or other documentation to support its contention that this payment was for back pay. Therefore, the Commission finds that the record is inadequately developed for us to make a determination on whether the Agency has fully complied with the FAD requirement to determine the appropriate amount of back pay, interest, and other benefits due complainant, pursuant to 29 C.F.R. §1614.501(b), within sixty days of the date complainant either accepts or declines an offer of employment. Thus, this matter is remanded for further processing. Compensatory Damages Complainant submitted her 2020 Pay Period 13 pay stub showing a deposit of $14,003.61 listed as “COMPENSATORY DAMAGES”. (EEOC Appeal Supporting Documents, p. 27). She contends this was received with no communication from the Agency and no calculation or explanation as to how the Agency arrived at this number. The Agency contends it has not paid Complainant any compensatory damages because no such request was received until September 2020 and that request was being reviewed by the Employment Law Branch. However, the record shows that the Agency requested in April 2020 that Complainant provide evidence of her claim for compensatory damages, Complainant’s representative responded within 30 days as requested, and the Agency EEO Officer acknowledged receipt of the email the same day it was sent. (EEOC Appeal Supporting Documents, pp. 7-11). Regardless, it is now three months after the Agency’s statement that the request for compensatory damages was being reviewed and the Agency has not provided any evidence to show whether it has made a decision regarding compensatory damages. Therefore, the Commission finds that the record is inadequately developed for us to make a determination on whether the Agency has fully complied with the FAD requirement to determine an appropriate award for emotional harm suffered as a result of the disability discrimination. Thus, this matter is remanded for further processing. Attorney’s Fees The evidence does not show Complainant hired an attorney to represent her and thus we agree with the Agency that this portion of the FAD does not apply here. Posting of Required Notice Complainant asserts that the Agency failed to post a Notice of Discrimination at FCC Butner as required by the FAD. The Agency states the required Notice was posted in April 2020. However, the Agency did not provide any evidence to support their contention that a Notice was posted or the contents of such Notice. Therefore, the Commission finds that the record is inadequately developed for us to make a determination on whether the Agency has fully complied with the FAD requirement to post a Notice within the administrative offices of FCC Butner within 30 days of the issuance of the FAD. Thus, this matter is remanded for further processing. 2021000621 7 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 decision that it has complied with the provisions of the FAD regarding promotion and attorney’s fees. However, the matter is remanded to the Agency for compliance with the other remedial orders in the Agency’s FAD. ORDER The Agency is ordered to take the following actions: 1. Within sixty (60) calendar days of the date this decision was issued, the Agency shall provide a written statement to Complainant clarifying whether or not the $14,003.61 payment made to her in 2020 was either her back pay award or a compensatory damages award. If it was a back pay award, the Agency shall also provide a detailed written explanation, in easy to understand language, concerning how the amount of back pay was calculated. If the 2020 payment was not back pay, the Agency shall promptly issue Complainant payment for the back pay ordered in its FAD along with the required explanation of how the amount was calculated. 2. Within sixty (60) calendar days of the date this decision was issued, the Agency shall issue a written final decision, with appeal rights to this Commission, with regard to Complainant's entitlement to compensatory damages. That decision shall consider and address Complainant’s April-May 2020 submissions addressing this issue, as well as any other submissions made since then. Actual payment of the compensatory damages award shall also be made to Complainant within sixty (60) calendar days of the date this decision was issued. 3. The Agency shall determine whether proper Notice has been posted as ordered in its FAD and shall provide proof thereof to Complainant and the EEOC Compliance Officer as referenced below no later than sixty (60) calendar days from the date this decision was issued. 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 supporting documentation of the Agency's calculation of back pay and other benefits due Complainant, including evidence that the corrective action has been implemented. 2021000621 8 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 Complainant and his/her representative. 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. 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. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0920) The Commission may, in its discretion, reconsider this appellate decision if Complainant or the Agency submits a written request that contains arguments or evidence that 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 for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration. 2021000621 9 A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within 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). Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx Alternatively, Complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, a complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless Complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together with the 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. 2021000621 10 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 March 31, 2022 Date