[Redacted], Leon B., 1 Petitioner,v.Antony Blinken, Secretary, Department of State, Agency.

Equal Employment Opportunity Commission

Apr 28, 2021

Appeal No. 0120182144 (E.E.O.C. Apr. 28, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Leon B.,1 Petitioner, v. Antony Blinken, Secretary, Department of State, Agency. Petition No. 2020004262 Appeal No. 0120182144 Agency No. DOS-0307-17 DECISION ON A PETITION FOR ENFORCEMENT On July 21, 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 Appeal No. 0120182144 (November 5, 2019). The Commission accepts this petition for enforcement pursuant to 29 C.F.R. § 1614.503. Petitioner alleged that the Agency failed to fully comply with the Commission’s Order. BACKGROUND At the time of events giving rise to this complaint, Petitioner was an applicant for a position as a Special Agent, FP-1811-0606, with the Agency’s Diplomatic Security Service (DSS). Petitioner filed a complaint in which he alleged that the Agency discriminated against him on the bases of national origin (Hispanic), color (brown), disability (physical), and age (46) in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq., when his candidacy for a Diplomatic Security Foreign Service Special Agent position was terminated. 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. 2020004262 2 Petitioner appealed the Agency’s final decision to the Commission, and in Appeal No. 0120182144, the Commission found that the Agency subjected Complainant to discrimination as alleged. Specifically, the evidence presented by the Agency was insufficient to provide a clear, individualized explanation for why the Agency terminated Complainant’s candidacy after the assessment process. The following remedial relief was ordered: 1. Within thirty (30) calendar days of the date this decision is issued, the Agency shall change Complainant’s oral assessment results to reflect the same score given to the candidate who received the highest oral assessment score under the December 8, 2016, vacancy announcement for a Diplomatic Security Foreign Service Special Agent (SA), FP-2501-06. 2. The Agency shall apply to Complainant the same process that it applied to other candidates regarding the requirement to obtain a Top-Secret Security Clearance, to obtain a class-one medical clearance with the Special Agent supplemental medical pass, to pass a suitability review, and to take a physical-readiness test. If Complainant meets these requirements, the Agency shall determine Complainant’s ranking on the “register” based on the new assessment score and the applicable veterans’ and language points. The Agency shall then place Complainant in the Diplomatic Security Foreign Service Special Agent position, retroactive to the date that the Agency hired the candidate who held the same ranking on the register that Complainant is deemed to hold. 3. The Agency shall pay Complainant back pay with interest from the date on which it is determined that Complainant would have started the Diplomatic Security Foreign Service Special Agent position. The Agency shall determine the appropriate amount of back pay, with interest, and other benefits due Complainant, pursuant to 29 C.F.R. § 1614.501, no later than sixty (60) calendar days after the date this decision is issued. The Agency will ensure that all tax consequences are taken into account. Complainant 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 Complainant for the undisputed amount within sixty (60) calendar days of the date the Agency determines the amount it believes to be due. Complainant 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. 4. The Agency shall conduct and complete a supplemental investigation on the issue of Complainant’s entitlement to compensatory damages under Title VII and will afford him an opportunity to establish a causal relationship between the Agency’s discriminatory action and his pecuniary or non-pecuniary losses, if any. 2020004262 3 Complainant 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. Within fifteen (15) calendar days of the date this decision is issued; the Agency shall give Complainant notice of his right to submit objective evidence (pursuant to the guidance given in Carle v. Dep’t. of the Navy, EEOC Appeal No. 01922369 (Jan. 5, 1993)), in support of his claim for compensatory damages. Complainant shall have forty-five (45) calendar days from the date he receives the Agency’s notice to submit his compensatory damages evidence. The Agency shall complete the investigation on the claim for compensatory damages within forty-five (45) calendar days of the date the Agency receives Complainant’s claim for compensatory damages. Thereafter, the Agency shall process the claim in accordance with 29 C.F.R. § 1614.110. Within thirty (30) calendar days of determining the amount of compensatory damages due Complainant, the Agency shall pay that amount to Complainant. 5. The Agency is directed to conduct eight (8) hours of in-person or interactive training for the Assistant Special Agent in Charge and the BEX Examiner. The Agency shall address management’s responsibilities with respect to eliminating discrimination in the workplace. The Agency shall conduct the training within ninety (90) days from the date the decision is issued. The Commission does not consider training to be discipline. 6. Within sixty (60) days from the date the decision is issued, the Agency shall consider disciplining the Assistant Special Agent in Charge and the BEX Examiner. The Agency shall report its decision. If the Agency decides not to issue any disciplinary action to any of the named management officials, it shall set forth the reason(s) for its decision not to impose any disciplinary action. If any of the named management officials are no longer employed by the Agency, the Agency shall furnish proof of the date(s) of separation. 7. Within sixty (60) days from the date the decision is issued, the Agency shall consider disciplining the Assistant Special Agent in Charge and the BEX Examiner. The Agency shall report its decision. If the Agency decides not to issue any disciplinary action to any of the named management officials, it shall set forth the reason(s) for its decision not to impose any disciplinary action. If any of the named management officials are no longer employed by the Agency, the Agency shall furnish proof of the date(s) of separation. 8. Within thirty (30) days of the date this decision is issued, the Agency shall post a notice in accordance with the Order below. The matter was assigned to a Compliance Officer and docketed as Compliance No. 2020000934 on November 15, 2019. 2020004262 4 On July 11, 2020, Petitioner submitted the petition for enforcement at issue. In the petition for enforcement, Petitioner argued that the Agency only complied with the order to post a notice. He maintained that the Agency had not paid back pay, compensatory damages, or attorney’s fees; did not change his oral assessment score; he had not been contacted about a top-secret security clearance; and had not provided confirmation of training or disciplinary action. Petitioner stated that the Agency had prior experience with converting scores along with eight months to convert his score and it still failed to explain what work had taken place or why converting the score was so complex that it could not be completed in eight months. As for ordered remedial provision 2, Petitioner asserted that the Agency sent an implementation memorandum to the Bureau of Diplomatic Talent Management, however, it had failed to do anything else and no one had contacted him regarding the suitability review process. Petitioner argued that with respect to back pay, the order did not condition back pay upon any other remedial action and even if back pay were dependent upon remedial provisions 1 and 2, the Agency failed to take prompt action to ensure implementation. Petitioner noted that although he had received compensatory damages, the Agency waited until the last minute to initiate payment. Regarding the ordered training, Petitioner questioned the relevance of the courses completed by the responsible management officials. He asserted that the Agency failed to provide a sufficient reason for not disciplining the responsible management officials and that factors existed to warrant discipline. Petitioner requests sanctions and attorney fees. Additionally, Petitioner submitted a Motion for Sanctions/Modification of Order on July 11, 2020, for the Agency’s “repeated failures to comply with the November 5, 2019 decision.” Petitioner noted that the Agency had filed partial compliance reports on June 9, 2020 and July 10, 2020 and acknowledged that it had not fully complied with the Commission’s order. Petitioner asserted that the Compliance Officer requested compliance reports on January 9, 2020 and January 28, 2020, however, the Agency did not file an interim compliance report until June 9, 2020. Petitioner noted that the Agency filed a second partial compliance report on July 10, 2020, following the Commission’s third request for status updates and proof of compliance. According to Petitioner, the Agency’s submission was deficient and to further prevent discrimination against Complainant, the Agency should pay front pay for a period of two years, in addition to back pay with interest from the day that he would have started the Diplomatic Foreign Service Special Agent position. Petitioner concluded that the Agency had failed, without good cause, to comply in a timely fashion to requests for information and the appropriate sanction would be back pay with interest, two years’ front pay, and attorney’s fees. On July 21, 2020, the Agency submitted an updated compliance report addressing each ordered action. Specifically, the Agency stated that it changed Complainant’s oral assessment score on July 14, 2020, which resulted in a conversion from a 94.7 on a 100-point scale to a 6.06 on a 7- point scale. As for the application of the same process that had been applied to other candidates regarding clearances, suitability review, and a physical-readiness test, the Agency asserted that Petitioner’s application remained ongoing pursuant to its “7 Steps to Becoming a Foreign Service Specialist,” but Petitioner had provided pre-employment information to the Bureau of Diplomatic Security on July 18, 2020. With respect to back pay, the Agency affirmed that an implementation memorandum had been sent to the Agency’s Comptroller’s office on January 22, 2020004262 5 2020, where it was determined that an SF-50 would need to reflect an employment start date to calculate back pay. However, the Agency stressed that an SF-50 would not be generated until remedial actions 1 and 2 were completed. The Agency stated that the remaining ordered actions were complete, including a payment of $15,000.00 in compensatory damages, training for the responsible management officials, determining that there was insufficient evidence to warrant disciplining the responsible management officials, posting of a notice, and payment for attorney’s fees. On August 10, 2020, the Agency submitted its response to Petitioner’s Motion for Sanctions/Modification of Order and Petition for Enforcement. Therein, the Agency asserted that it had provided an updated interim compliance report on July 21, 2020, showing that it had substantially complied with the Order. According to the Agency, six of the eight items requiring Agency action had been implemented and at the time of the response, the Agency was working with Petitioner toward implementing the remaining two items. Specifically, the Agency reported that compliance with remedial provision 2 was ongoing and the back pay in provision 3 would be triggered if, and when, Petitioner qualified to be placed on the register and offered employment. The Agency asserted that the Commission’s order dictated remedies that required input from, and coordination with, several offices and bureaus. The Agency added that any delay in implementing the ordered remedies was due to the complicated coordination, settlement discussions, and the unexpected need to safely evacuate Agency employees due to coronavirus. On August 31, 2020, Petitioner responded to the Agency’s updated compliance report. Petitioner reiterated his position that the Agency should be sanctioned for delaying its partial compliance by eight months. Petitioner stressed that the Agency generally failed to act until shortly after he filed his petition for enforcement. He asserted that while the Agency refused to comply with issuing back pay, nothing in the order conditioned the payment on any other remedial action and the Agency lacked good cause for its refusal to remit back pay. Further, Petitioner noted that the order required the Agency to compute back pay within 60 days of the decision and even if back pay were dependent upon other remedies, the Agency failed to take prompt measures to ensure that those actions were implemented. In support of his argument to sanction the Agency, Petitioner stated that the Agency ignored requests for compliance reports and that the Agency delayed implementation of the ordered remedies much prior to the pandemic. Petitioner reiterated that an award of front pay would be appropriate to remedy the Agency’s failure to implement the order and noted that the Agency’s “substantial compliance” did not occur until 260 days after the order was issued. He asserted that the Agency’s non-compliance had a prejudicial effect on him, resulted in the extreme delay of justice, and negatively impacted the integrity of the EEO process. ANALYSIS AND FINDINGS After a review of the record, we find that the Agency failed to comply with ordered remedial actions 2 and 3. As to remedial action 2, the Agency acknowledged that it had started to comply, but compliance remained incomplete. Regarding remedial action 3, the Agency acknowledged 2020004262 6 that compliance with the back-pay order was also ongoing because an SF-50 would not be generated until remedial actions 1 and 2 were completed. When discrimination is found, the Agency must provide the complainant with a remedy that constitutes full, make-whole relief to restore him as nearly as possible to the position he 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). Back pay, which courts may award as part of make-whole relief, is an equitable remedy. See Albemarle Paper Co., 422 U.S. at 416-22. The Court has held that, “given a finding of unlawful discrimination, backpay should be denied only for reasons which, if applied generally, would not frustrate the central statutory purposes of eradicating discrimination throughout the economy and making persons whole for injuries suffered through past discrimination.” Id. at 421. Here, the Commission ordered the Agency to pay Petitioner back pay with interest from the date on which it is determined that Complainant would have started the Diplomatic Security Foreign Service Special Agent position. Therefore, we agree with Petitioner that the order does not condition the payment of back pay on any other ordered action and further find that the order does not condition the payment upon Petitioner’s placement on the registry. We note, however, that although we have held that pursuant to McKennon v. Nashville Banner Publ’g Co., 513 U.S. 352 (1995), Commission Enforcement Guidance, and Commission precedent, that evidence of unsuitability is after-acquired evidence that does not bar an agency’s liability for having engaged in discrimination, back pay will be limited to the extent that an agency has legal authority to hire Petitioner. Harvey D. v. Dep’t of State, EEOC Petition No. 2019005285 (Dec. 29, 2020). Therefore, the Agency’s obligation to provide Petitioner with back pay will not be extinguished unless the Agency can show that it lacks legal authority to hire Petitioner. To date, the Agency has not done so, and we find that it has not complied with the previous order. Regarding the remaining ordered remedies, the Agency provided sufficient evidence demonstrating that it converted Petitioner’s oral assessment score, paid Petitioner compensatory damages, and provided the ordered hours of EEO training. Likewise, the Agency submitted sufficient evidence that it considered disciplining the responsible management officials and posted the required notice as ordered. As for Petitioner’s request to sanction the Agency for its delayed compliance, we decline to sanction the Agency here. We do not find that the record supports Petitioner’s assertion that the Agency’s conduct warrants the imposition of sanctions at this time. The Commission has the inherent power to control and prevent abuse of its orders, processes and procedures. The Commission can and will impose sanctions for Agency malfeasance. Hashimoto v. Dep't of Housing & Urban Dev., EEOC Petition No. 0420110011 (June 12, 2012) citing Turner v. Dep't of the Interior, EEOC Petition No. 04980037 (Aug. 5, 1999) & Byrd v. Dep't of Agric., EEOC Petition No. 04980004 (Dec. 12, 1997). 2020004262 7 To that end, we remind the Agency that EEOC Regulations 29 C.F.R. § 1614.502(a) and § 1614.503 provide that relief ordered in a final 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. Nevertheless, because Petitioner is a prevailing party in this petition for enforcement, we also order the Agency to award Petitioner attorney’s fees incurred as a result of his need to file this petition for enforcement. CONCLUSION Accordingly, based on a thorough review of the record, the Commission GRANTS Petitioner’s Petition for Enforcement and REMANDS this matter to the Agency for further processing consistent with this decision and the ORDER below. ORDER The Agency is ordered to take the following remedial action: 1. The Agency shall apply to Complainant the same process that it applied to other candidates regarding the requirement to obtain a Top-Secret Security Clearance, to obtain a class-one medical clearance with the Special Agent supplemental medical pass, to pass a suitability review, and to take a physical-readiness test. If Complainant meets these requirements, the Agency shall determine Complainant’s ranking on the “register” based on the new assessment score and the applicable veterans’ and language points. The Agency shall then place Complainant in the Diplomatic Security Foreign Service Special Agent position, retroactive to the date that the Agency hired the candidate who held the same ranking on the register that Complainant is deemed to hold. 2. The Agency shall pay Complainant back pay with interest from the date on which it is determined that Complainant would have started the Diplomatic Security Foreign Service Special Agent position. The Agency shall determine the appropriate amount of back pay, with interest, and other benefits due Complainant, pursuant to 29 C.F.R. § 1614.501, no later than sixty (60) calendar days after the date this decision is issued. The Agency will ensure that all tax consequences are taken into account. Complainant 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 Complainant for the undisputed amount within sixty (60) calendar days of the date the Agency determines the amount it believes to be due. Complainant may petition for 2020004262 8 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. 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. ATTORNEY'S FEES (H1016) If Petitioner has been represented by an attorney (as defined by 29 C.F.R. § 1614.501(e)(1)(iii)), she 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 the date this decision was issued. 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 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. 2020004262 9 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. 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 April 28, 2021 Date