[Redacted], Kiara R., 1 Complainant,v.Louis DeJoy, Postmaster General, United States Postal Service (Southern Area), Agency.

Equal Employment Opportunity Commission

Sep 2, 2021

Appeal No. 2020003876 (E.E.O.C. Sep. 2, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Kiara R.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Southern Area), Agency. Appeal No. 2020003876 Hearing No. 460-2016-00126X Agency No. 4G-770-0003-16 DECISION On October 9, 2019, an Equal Employment Opportunity Commission (EEOC or Commission) Administrative Judge (AJ) found that the Agency discriminated against Complainant on the basis of sex in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq. On November 6, 2019, the Agency issued a final order adopting and implementing the AJ’s decision. On February 18, 2020, Complainant filed an appeal2 with the Commission for a determination as to whether the Agency had complied with the final order. For the following reasons, the Commission MODIFIES the Agency’s determination that it has complied with the final order. 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. 2 Complainant characterized her appeal as a petition for enforcement of the AJ's decision. This characterization is inaccurate. Under EEOC regulation 29 C.F.R. § 1614.503, a complainant may petition the Commission for enforcement of a decision only if the decision was issued under the Commission's appellate jurisdiction. Here, the regulations governing the term “petition for enforcement” do not apply because the Commission did not issue an appellate decision in this case. Rather, Complainant's appeal is governed by 29 C.F.R. § 1614.504, which deals with situations where a complainant believes that an agency has failed to comply with the terms of a final action that has not been the subject of an appeal or civil action. Accordingly, we will 2020003876 2 ISSUE PRESENTED The issue presented on appeal is whether the Agency has complied with its final order by fully implementing the relief ordered by the AJ pursuant to the finding that Complainant was subjected to discrimination based on sex. BACKGROUND AJ Finding of Discrimination At the time of events giving rise to this complaint, Complainant worked as an EAS-23 Manager, Customer Service Operations (MCSO), at the Agency’s North Houston Post Office in Houston, Texas. On December 3, 2015, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the basis of sex (female) when, on September 21, 2015, she received notification that her application had been rejected for an EAS-25 MCSCO position. At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an EEOC AJ. Complainant timely requested a hearing and the AJ held a hearing on November 15, 2016. On December 8, 2016, the AJ issued an interim bench decision finding the Agency liable for discriminating against Complainant based on sex and directed the parties to file submissions on damages. The AJ issued a decision on liability and damages on October 9, 2019. The AJ concluded that the Agency discriminated against Complainant based on sex and determined that Complainant was entitled to make whole relief. As part of that relief, the AJ ordered the Agency to either retroactively promote Complainant to the EAS-25 MCSO position or to offer her a substantially equivalent position, to pay her back pay and other benefits, with applicable interest, to pay $5,490 in attorney’s fees and costs to the estate of Complainant’s former attorney, who had died in 2017, to post a notice, and to provide EEO training to the responsible management official.3 On November 6, 2019, the Agency issued a final order adopting the AJ’s finding that Complainant proved that the Agency subjected her to discrimination as alleged and agreeing to implement the ordered relief. characterize Complainant's submission as an “appeal” under 29 C.F.R. § 1614.504, rather than a “petition for enforcement” under 29 C.F.R. § 1614.503. See Complainant v. U.S. Postal Serv., EEOC Appeal No. 0120122965 (Nov. 13, 2014). 3 Complainant did not request compensatory damages. 2020003876 3 Beginning on January 10, 2020, Complainant’s former attorney contacted the Agency, stating that the Agency had not complied with the relief ordered. On February 5, 2020, Complainant’s attorney notified the Agency that Complainant would file an “enforcement motion” if the Agency did not comply with the relief ordered by the AJ within seven days. On February 18, 2020, Complainant filed the instant appeal. Agency’s Remedial Actions According to the record, on January 10, 2020, the Agency offered Complainant an EAS-25 Marketing Manager position, which she declined. On May 5, 2020, the Agency processed Complainant’s retroactive promotion to the EAS-25 level, effective October 3, 2015. The Agency also processed retroactive Pay for Performance (PFP) raises effective January 7, 2017, and January 6, 2018, and a retroactive PFP lump sum award January 4, 2020. The Agency calculated the amount of back pay and benefits due Complainant, which were paid on May 29, 2020. On July 16, 2020, the Agency mailed Complainant a check for $5,124.26 in interest on the back pay award. On March 16, 2020, the Agency mailed a check for $5,490 to the estate of Complainant’s attorney. On May 5, 2020, the Agency posted a notice of the finding of discrimination at the Houston District Office/Houston Post Office, which remained posted through August 5, 2020. Regarding the training order, the Agency provided a copy of the PS Form 50 showing that the Houston Postmaster, the management official the AJ cited as responsible for the discrimination against Complainant, retired effective May 1, 2016. CONTENTIONS ON APPEAL In her February 18, 2020, appeal, Complainant contends that the Agency has failed to comply with any of the ordered relief. In subsequent statements on appeal,4 Complainant contends that, although she has received back pay, she has not been promoted to a substantially equivalent position because the EAS-25 Marketing Manager position she was offered is not similar to the EAS-25 MCSO position. According to Complainant, an EAS-25 level Manager, Post Office Operations (MPOO) position became vacant in late 2019, but someone else was placed in the position in early January 2020. Complainant also questions the way the Agency calculated the back pay award and the interest on the back pay award. Complainant further states that the Agency was late in paying attorney’s fees5 and that the Agency did not comply with the posting and training orders. 4 The Commission granted Complainant’s extension of the time to file a statement or brief in support of her appeal, so the referenced statements were timely. 5 In 2020, Complainant sent a letter to the AJ stating that the attorney’s fees should have been paid to her instead of to her attorney’s estate. Complainant does not raise this issue on appeal, and we will not address it. 2020003876 4 In response to Complainant’s appeal, the Agency contends that the EAS-25 Marketing Manager position offered to Complainant was the only vacant EAS-25 position in the Houston District when the AJ’s decision became final on February 11, 2020. According to the Agency, when she declined the offer, she was retroactively promoted to the EAS-25 MCSO position in accordance with the AJ’s order, and the Agency began calculating back pay. The Agency contends that it fully complied with all ordered relief. ANALYSIS AND FINDINGS Under EEOC regulation 29 C.F.R. § 1614.504, a complainant who is not satisfied with the agency's attempt to resolve a final action that has not been the subject of an appeal or civil action, may appeal to the Commission for a determination as to whether the agency has complied with the terms of the decision. When discrimination is found, the agency must provide the complainant with a remedy that constitutes full, make-whole relief to restore her as nearly as possible to the position she would have occupied absent the discrimination. See, e.g., Franks v. Bowman Transp. Co., 424 U.S. 747, 764 (1976); Albemarle Paper Co. v. Moody, 422 U.S. 405, 418-19 (1975); Adesanya v. U.S. Postal Serv., EEOC Appeal No. 01933395 (July 21, 1994). When an agency or the Commission finds that an employee of the agency was discriminated against, the agency shall provide the individual with nondiscriminatory placement into the position she would have occupied absent the discrimination, with back pay computed in the manner prescribed by 5 C.F.R. § 550.805. See 29 C.F.R. § 1614.501(c)(1). Complainant contends that the Agency failed to retroactively promote her to a substantially equivalent position to the EAS-25 MCSO position. The AJ had made findings that the EAS-25 MCSO position “was a unique one-of-a-kind opportunity that was created in the Houston District” and that equivalent positions were rarely available in the Houston District. AJ Decision (AJD) at 10. Regarding Complainant’s retroactive promotion, the AJ ordered the following: The Agency shall within thirty (30) days of the date the decision becomes final, promote [Complainant] to a substantially equivalent position, with the attendant back pay retroactive from October 3, 2015, (the date of the non-selection), to December 8, 2016. In the alternative, the Agency shall virtually promote Complainant from October 3, 2015, to December 8, 2016, awarding [Complainant] the position with all pay and benefits associated with the position until her retirement. The Agency shall retroactively promote [Complainant] to the next appropriate step and/or grade, respectively, if appropriate, on the one year anniversary of her promotion and then on an annual basis or according to Agency policy. AJD at 12. The Agency offered Complainant the EAS-25 Marketing Manager position on January 10, 2020. Complainant contends that the EAS-25 Marketing Manager position was not substantially equivalent to the EAS-25 MCSO position for which she was not selected. 2020003876 5 Instead, Complainant contends that she should have been offered the EAS-25 MPOO position that became vacant in late 2019 because the MPOO position is similar to the MCSO position. According to the record, a former MPOO was detailed as acting MPOO on November 23, 2019, and requested noncompetitive lateral reassignment to the EAS-25 MPOO position, and was noncompetitively reassigned to the EAS-25 MPOO position, effective January 4, 2020. Therefore, the EAS-25 MPOO position may not have been permanently filled for at least a portion of the 30-day period after AJ’s decision became final. However, the record reflects that, on January 10, 2020, the EAS-25 Marketing Manager position was the only EAS-25 position available in the Houston District, and the Agency offered Complainant this position. Complainant stated that she turned down the Marketing Manager position because it was a marketing position and was not substantially equivalent to the EAS-25 MCSO position for which she was not selected. We do not disagree. However, the AJ’s decision found that the EAS-25 MCSO position was a unique, one-of-a-kind opportunity created by the Houston Postmaster and that a similar position had not been available since at least 2011. Therefore, the AJ’s order stated that the Agency could either promote Complainant to a substantially equivalent position or “virtually promote” Complainant to the EAS-25 MCSO position. According to the record, the selectee from 2015 still occupies the EAS- 25 MCSO position for which Complainant was not selected. The record reflects that the Agency “virtually promoted” Complainant to the EAS-25 position and that the Agency has informed Complainant that an EAS-24 station would be added to her area of responsibility to align with the requirements of the EAS-25 MCSO position description. However, the record does not reflect that the Agency increased Complainant’s responsibilities to reflect the greater area of responsibility of the EAS-25 position.6 While we recognize that the Agency has made efforts to comply by “virtually promoting” Complainant to the EAS-25 pay grade and by working towards giving Complainant full EAS-25 MCSO responsibilities, we find that the Agency has not yet fully complied with this provision. The Agency will be in full compliance with the AJ’s order when Complainant is either provided the full responsibilities of the EAS-25 MCSO position or, should the position become vacant, when she is promoted to the original EAS-25 MCSO position for which she was not selected. Regarding back pay, we find that, based on the computations, documentation, and explanation provided by the Agency, the Agency has complied with the order to calculate and provide Complainant with back pay and other benefits, with applicable interest. Moreover, although the AJ ordered the Agency to calculate back pay within 60 days of the date the decision became final, the Agency explained that it could not accurately make these determinations until Complainant made a decision whether to accept the Agency’s offer of the EAS-25 Marketing Manager position. When Complainant filed her appeal, the record reflects that she had not notified the Agency whether she would accept the offer. 6 In a July 27, 2021, request for a status update on her appeal, Complainant notes that the Agency still has not added a level 24 station to her responsibilities. 2020003876 6 Therefore, we do not find that the Agency was in non-compliance with this provision at the time the appeal was filed. See Appleton v. Dep’t of Homeland Sec., EEOC Appeal No. 0120122864 (Jan. 18, 2013). We further find that the Agency is now in compliance with this portion of the AJ’s order. Upon review, we find that the Agency has shown that it paid attorney’s fees to the estate of Complainant’s attorney and posted a notice of discrimination. The Agency also provided evidence that the Houston Postmaster retired before the AJ ordered the training. We therefore find that the Agency has complied with the AJ’s order. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM in part and REVERSE in part the Agency’s determination that it has complied with its final action implementing the AJ’s decision. We REMAND this matter to the Agency for further processing in accordance with this decision and the ORDER below. ORDER The Agency is ORDERED to take the following remedial action. Within 90 calendar days of the date this decision is issued, the Agency shall: 1. If the position is vacant, promote Complainant to the EAS-25 Manager, Customer Service Operations position for which she was not selected in 2015; or 2. Increase Complainant’s area of responsibilities in accordance with the position description for the EAS-25 Manager, Customer Service Operations position. 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. ATTORNEY'S FEES (H1019) If Complainant 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. 2020003876 7 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 CFR § 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. 2020003876 8 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 (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. 2020003876 9 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 September 2, 2021 Date