[Redacted], Kristofer D.,1 Petitioner,v.Ryan D. McCarthy, Secretary, Department of the Army, Agency.

Equal Employment Opportunity Commission

Jan 31, 2020

Appeal No. 0720170019 (E.E.O.C. Jan. 31, 2020)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Kristofer D.,1 Petitioner, v. Ryan D. McCarthy, Secretary, Department of the Army, Agency. Petition No. 2019004329 Appeal No. 0720170019 Agency No. ARANAD12APR01788 DECISION ON A PETITION FOR ENFORCEMENT On June 28, 2019, 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. 0720170019 (August 3, 2018). See 29 C.F.R. § 1614.503. BACKGROUND At the time of events giving rise to this complaint, Petitioner worked as a Machinist, WG-314-10, at the Agency’s Anniston Army Depot in Anniston, Alabama. On January 17, 2013, Petitioner filed an EEO complaint alleging that the Agency discriminated against him on the basis of race (Black/African-American) in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq., when on or about March 14, 2012, his supervisor promoted two White employees to WG-3414-11 Machinist positions. Petitioner requested a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). The AJ held a hearing on October 4 and 5, 2016, and issued a decision on November 2, 2016. 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. 2019004329 2 The Agency subsequently issued a final order accepting the AJ’s finding that Petitioner proved that the Agency subjected him to discrimination as alleged but rejecting the AJ’s order concerning policies and procedures for future temporary position promotions and filed an appeal with EEOC. In Appeal No. 0720170019 (August 3, 2018), the Commission upheld the AJ’s decision. However, the decision noted that it had expanded the orders, time frames, and training of specified responsible management officials. The Decision specified that within one hundred and twenty (120) days of the date the decision was issued: 1. The Agency shall take corrective, curative, and preventive action to ensure that race discrimination does not recur. The Agency will develop and conduct training on Title VII’s prohibition against race discrimination, with special emphasis on recruitment, hiring, and promotion. The Agency shall require such training for the responsible management officials, Petitioner’s Supervisor and concurring Director. Such training is not to be less than eight hours of in-person or interactive training, with no less than one hour devoted to recruitment, hiring, and promotion. Such training is to be provided by an appropriate, reputable training organization, such as one that normally provides EEO training at the facility. 2. The Agency shall consider taking appropriate disciplinary action against the responsible management officials. The Commission does not consider training to be disciplinary action. The Agency shall report its decision to the Compliance Officer. If the Agency decides to take disciplinary action, it shall identify the action taken. If the Agency decides not to take disciplinary action, it shall set forth the reason(s) for its decision not to impose discipline. If any of the responsible management officials have left the Agency’s employ, the Agency shall furnish documentation of their departure date(s). 3. The Agency's Anniston Army Depot shall develop and adopt policies and procedures related to recruitment and selection of employees for non-competitive, temporary positions, including 120-day temporary promotions, to ensure equal opportunity for employees to be aware of and be considered for opportunities for 120-day temporary positions, and to ensure equal opportunity in the selection process. Within 30 days from the effective date of such policies and procedures, the Agency shall distribute the policies and procedures to all employees at Anniston Army Depot. 4. The Agency shall provide Petitioner with a non-competitive 120-day temporary promotion to a WG-314-l l machinist position in the Fabrication Repair Division, or a substantially similar position, with back pay, interest, and other benefits due Petitioner from March 11, 2012. Petitioner has 15 days from his receipt of the offer to accept or reject the position. Failure to accept the position within the time frame will be considered a rejection of the offer unless Petitioner can show that circumstances beyond his control prevented a timely response. 2019004329 3 5. The Agency shall pay Petitioner $5,000.00 in compensatory damages. 6. The Agency is ordered to post at its Anniston Army Depot, Directorate of Public Works office and its Fabrication Repair Division in Anniston, Alabama, copies of the attached notice. Copies of the notice, after being signed by the Agency’s duly authorized representative, shall be posted both in hard copy and electronic format by the Agency within 30 calendar days of the date this decision was issued, and shall remain posted for 60 consecutive days, in conspicuous places, including all places where notices to employees are customarily posted. The matter was docketed for compliance monitoring as Compliance No. 0620180706 on August 10, 2018. In the seventeen months since that time, the Agency has failed to file the ordered report of its compliance with EEOC Appeal No. 0720170019 or to respond to the related inquiries from the EEOC. ANALYSIS AND FINDINGS EEOC Regulations 29 C.F.R. § 1614.502(a) and § 1614.503 provide that relief ordered in a final2 EEOC decision is “mandatory and binding” on the agency. The regulations also provide that, on behalf of the Commission, its Office of Federal Operations (OFO) “shall take all necessary action to ascertain whether the agency is implementing the decision of the Commission.” Finally, the regulations provide that failure to implement EEOC orders will subject the agency to a variety of enforcement actions, including the issuance of a notice to show cause to the head of the agency, a referral to the Office of Special Counsel, and/or judicial enforcement. Here, for nearly one-and-a-half years, the Agency has failed to report on its full compliance with the Commission’s order in EEOC Appeal No. 0720170019. Moreover, the Agency has not submitted any statement of its position or explanation in response to notification of the docketing of the instant petition for enforcement. Even more concerning, the Agency’s refusal to report on its compliance with the Commission’s order in this case appears to be part of a larger, ongoing pattern of similar failures. EEOC’s OFO is currently faced with multiple cases involving the Agency where it is unable to effectively fulfill its regulatory responsibility to monitor compliance with its orders because the Agency has failed to provide the required reports and/or evidence of its compliance. See EEOC Petition Nos. 2019001866, 2019004318, 2019004319, 2019004320, 2019004321, 2019004322, 2019004323, 2019004324, 2019004325, 2019004327, 2019004328, 2019004330, 2019004332, 2019004334, 2019004335, 2019004336, 2019004337, 2019004338, and 2019004339. 2 Here, EEOC Appeal No. 0720170019 is the Commission’s final decision as no requests for reconsideration were filed. 2019004329 4 Based on the Agency’s failure to provide evidence of its compliance with EEOC’s order in Appeal No. 0720170019, we cannot conclude that it is in compliance. The Commission directs the Agency to immediately take action consistent with the Order below. ORDER 1. Within thirty (30) calendar days of the date this decision is issued, the Agency is ordered to provide the EEOC with adequate documentation that it has taken the following remedial actions as ordered in Appeal No. 0720170019: a. The Agency shall take corrective, curative, and preventive action to ensure that race discrimination does not recur. The Agency will develop and conduct training on Title VII’s prohibition against race discrimination, with special emphasis on recruitment, hiring, and promotion. The Agency shall require such training for the responsible management officials, Petitioner’s Supervisor and concurring Director. Such training is not to be less than eight hours of in-person or interactive training, with no less than one hour devoted to recruitment, hiring, and promotion. Such training is to be provided by an appropriate, reputable training organization, such as one that normally provides EEO training at the facility. b. The Agency shall consider taking appropriate disciplinary action against the responsible management officials. The Commission does not consider training to be disciplinary action. The Agency shall report its decision to the Compliance Officer. If the Agency decides to take disciplinary action, it shall identify the action taken. If the Agency decides not to take disciplinary action, it shall set forth the reason(s) for its decision not to impose discipline. If any of the responsible management officials have left the Agency’s employ, the Agency shall furnish documentation of their departure date(s). c. The Agency’s Anniston Army Depot shall develop and adopt policies and procedures related to recruitment and selection of employees for non-competitive, temporary positions, including 120-day temporary promotions, to ensure equal opportunity for employees to be aware of and be considered for opportunities for 120-day temporary positions, and to ensure equal opportunity in the selection process. Within 30 days from the effective date of such policies and procedures, the Agency shall distribute the policies and procedures to all employees at Anniston Army Depot. d. The Agency shall provide Petitioner with a non-competitive 120-day temporary promotion to a WG-314-l l machinist position in the Fabrication Repair Division, or a substantially similar position, with back pay, interest, and other benefits due Petitioner from March 11, 2012. Petitioner has 15 days from his receipt of the offer to accept or reject the position. Failure to accept the position within the time frame will be considered a rejection of the offer unless Petitioner can show that circumstances beyond his control prevented a timely response. 2019004329 5 e. The Agency shall pay Petitioner $5,000.00 in compensatory damages. f. The Agency shall post a Notice [as indicated in the decision]. 2. Within sixty (60) calendar days of the date this decision is issued, the Agency shall issue a written report to Director, Federal Sector Programs (FSP), Office of Federal Operations (OFO) that includes: a. An analysis of its Fiscal Year 2018 - 2019 Agency-wide EEO reporting on compliance with EEOC orders to identify problem areas in meeting regulatory reporting requirements, including timely reporting and providing adequate evidence of compliance with EEOC orders. b. A detailed action plan setting forth how the problems identified in its analysis will be corrected, delays ended, and compliance reporting brought in accordance with EEOC regulations. Such plan will include specific and reasonable timeframes within which to meet such goals. The Agency shall provide quarterly progress reports to FSP on the achievements of its action plan throughout the remainder of FY 2020 and shall include a report of its progress in its next MD-715 report.3 3. The Agency is further directed to submit its 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). POSTING ORDER (G0617) The Agency is ordered to post at its Anniston Army Depot, Directorate of Public Works office and its Fabrication Repair Division in Anniston, Alabama, copies of the attached notice. Copies of the notice, after being signed by the Agency's duly authorized representative, shall be posted both in hard copy and electronic format by the Agency within 30 calendar days of the date this decision was issued, and shall remain posted for 60 consecutive days, in conspicuous places, including all places where notices to employees are customarily posted. The Agency shall take reasonable steps to ensure that said notices are not altered, defaced, or covered by any other material. The original signed notice is to be submitted to the Compliance Officer as directed in the paragraph entitled "Implementation of the Commission's Decision," within 10 calendar days of the expiration of the posting period. The report must be in digital format and must be submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). 3 We note that we will be issuing the same order in a number of other cases involving the Agency where similar failures to report compliance have occurred. We clarify that the Agency only needs to develop a single action plan to comply with these orders. 2019004329 6 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. 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. 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. 2019004329 7 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 January 31, 2020 Date