[Redacted], Lelia D., 1 Complainant,v.James E. McPherson, Acting Secretary, Department of the Navy, Agency.

Equal Employment Opportunity Commission

Jan 14, 2021

Appeal No. 2020004742 (E.E.O.C. Jan. 14, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Lelia D.,1 Complainant, v. James E. McPherson, Acting Secretary, Department of the Navy, Agency. Appeal No. 2020004742 Agency No. DON (MC) 19-00027-04661 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) after the Agency failed to respond, in writing, within thirty-five days of being notified of the allegation of non-compliance with the terms of a January 28, 2020 settlement agreement. The Commission accepts the appeal. See 29 C.F.R. § 1614.402; 29 C.F.R. § 1614.504(b); and 29 C.F.R. § 1614.405. BACKGROUND During the relevant time, Complainant worked as an Administrative and Supply Technician for the Agency’s Wounded Warrior Battalion, West Marine Corps Base in Camp Pendleton, California. Believing that she was subjected to a hostile work environment, based on sex (female), race (African-American), and age (y.o.b. 1958), Complainant filed a formal complaint. On January 28, 2020, Complainant and the Agency entered into a settlement agreement to resolve the matter. The settlement agreement provided, in pertinent part, that the Agency will take the following action: A. Ensure that all of its uniformed Marine supervisors are provided with training concerning dealings with civilians and civilian personnel laws within 120 days of the last signature of this agreement. 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. 2020004742 2 B. Have a Human Resources Specialist as directed by the Quantico Human Resources Office conduct a desk audit of Complainant’s position within 45 days of the last signature on this agreement. In the event that, as a result of the classification review, Complainant’s grade determination is upgraded to a GS- 7, the Agency agrees to submit within fourteen (14) days of the final determination, to the Navy Office of Civilian Human Resources Service Center, the paperwork necessary to process the Complainant’s promotion to a GS-7. If Complainant’s grade is determined to be a GS-6, no further action will be taken. C. If Complainant’s position grades out a GS-7 during the desk audit, the Agency agrees to draft a memorandum memorializing the higher-level duties that Complainant has been performing and stating that Complainant has been performing those duties for the past two years. Such memorandum will be signed by [Agency Official]. D. Pay to Complainant a lump sum of $5,000. The agency agrees to submit all proper paperwork to have the payment processed by DFAS within 20 days of the last signature on this settlement agreement. In a May 19, 2020 email, Complainant alleged breach of provisions (B) and (C) of the settlement agreement, and requested that the Agency specifically implement its terms. Complainant explained that Human Resources acknowledged that the classification review had been completed more than two weeks earlier, thereby delaying her promotion. While understanding that some delays, due to COVID-19, were likely, Complainant informed the Agency of her “intent to file notice of breach of the settlement agreement with the EEOC if further delays are expected in the resolution of this matter.” After approximately three months, Complainant filed the instant appeal. ANALYSIS EEOC Regulation 29 C.F.R. § 1614.504(a) provides that any settlement agreement knowingly and voluntarily agreed to by the parties, reached at any stage of the complaint process, shall be binding on both parties. If a complainant believes that the Agency has failed to comply with the settlement agreement, she shall notify the Agency, in writing, within thirty days of when she knew of the alleged non-compliance. See id. In turn, the Agency is required to respond to a complainant’s concerns in writing. If the Agency has failed to do so within thirty-five days, the complainant may file an appeal with the Commission for a determination as to whether a breach has occurred. See 29 C.F.R. § 1614.504(b). In this case, Complainant informed the Agency on May 19, 2020 of her breach claim. At that time, she also cautioned the Agency that if compliance delays continued, she would seek review by the Commission. By email to the Agency dated June 8, 2020, Complainant explained, “This is our second follow-up on the status of the classification for [her] position.” Further, Complainant noted that in the Agency’s last response, it indicated that it was awaiting one document and action would be completed shortly. 2020004742 3 Instead, 120 days had passed since the execution of the agreement. Consequently, Complainant plainly stated “we will be seeking compliance through a filing with the EEOC . . . .” The instant appeal followed. In response to the appeal, the Agency has not provided a statement or brief, nor any relevant documents.2 Based on the instant record, the Commission is unable to determine whether the Agency is in breach of the settlement agreement. The record does not contain any final decision from the Agency nor any evidence of an inquiry into the breach claim. Therefore, the case is remanded to the Agency for a supplemental investigation. In light of the repeated prior notifications of alleged non-compliance, such investigation shall be completed in an expedited manner. CONCLUSION The case is REMANDED to the Agency for further processing in accordance with this decision and the ORDER below. ORDER The Agency shall conduct a supplemental investigation with respect to whether it is in compliance with its obligations under the January 28, 2020 settlement agreement, particularly with provisions (B) and (C). Thereafter, but no later than 60 calendar days from the date this decision is issued, the Agency shall issue a final decision, with appeal rights to the Commission, on the issue of whether the Agency is in breach of the settlement agreement. IMPLEMENTATION OF THE COMMISSION’S DECISION (K0719) Compliance with the Commission’s corrective action is mandatory. The Agency shall submit its compliance report within thirty (30) calendar days of the completion of all ordered corrective action. The report shall be in the digital format required by the Commission, and submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). The Agency’s report must contain supporting documentation, and the Agency must send a copy of all submissions to the Complainant. 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). 2 The complaint file submitted by the Agency concerns the underlying complaint, that was resolved by the January 28, 2020 settlement agreement, and is irrelevant to the breach allegation before us. Additional efforts to obtain the necessary documents from the Agency have gone unheeded. 2020004742 4 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. 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). 2020004742 5 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. 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 January 14, 2021 Date