[Redacted], Lilla B., 1 Petitioner,v.Michael S. Regan, Administrator, Environmental Protection Agency, Agency.

Equal Employment Opportunity Commission

Oct 28, 2021

Petition No. 2021002587 (E.E.O.C. Oct. 28, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Lilla B.,1 Petitioner, v. Michael S. Regan, Administrator, Environmental Protection Agency, Agency. Petition No. 2021002587 Request No. 2021000650 Agency No. 2019-0083-HQ DECISION ON A PETITION FOR ENFORCEMENT On March 29, 2021, the Equal Employment Opportunity Commission (EEOC or Commission) docketed a petition for enforcement to examine the enforcement of an Order set forth in EEOC Request No. 2021000650 (December 9, 2020). 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 matter, Petitioner worked as an Environmental Protection Specialist, GS-0028-13, at the Agency’s Office of Air Quality Planning and Standards located in Durham, North Carolina. She was detailed to a Region 4 (Atlanta) facility. In May 2019, Petitioner initiated equal employment opportunity (EEO) contact alleging that the Agency subjected her to hostile work environment harassment based on sex (female) and reprisal for prior EEO activity (reporting sexual harassment by a coworker) in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq. The Agency docketed the matter as Agency No. 2019-0083-HQ. 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. 2021002587 2 On August 16, 2019, the parties entered into a settlement agreement to resolve Agency No. 2019-0083-HQ, that states, in pertinent part: 4. [The Agency] agrees to support a 6-month detail for [Petitioner] and said detail will include up to twenty thousand dollars ($20,000.00) in travel funding. [Petitioner] will submit all detail-related travel authorizations and vouchers directly to [specific staff] or a designated member of his staff. The detail will conclude at the end of 6 months and if [Petitioner] does not transfer to a different office in the Agency or to a position outside of the Agency, she will return to the Office of Air Quality Planning and Standards, Office of Air and Radiation, Research Triangle Park. . . . 6. The Agency agrees to pay [Petitioner] a non-wage lump sum in the amount of twenty-five thousand dollars ($25,000.00). . . . Payment of this sum represents a full and final settlement of any and all claims for damages by [Petitioner] related to the above-captioned complaint, or any other appeal, complaint, grievance, or civil action filed by [Petitioner] or her representative(s) against [the Agency] pending at the effective date of this agreement. [Petitioner] agrees that she is solely responsible for any tax consequences resulting from this payment. In March 2020, Petitioner alleged that the Agency breached the settlement agreement by extending the 6-month detail without her knowledge and without explanation. The Agency stated that it complied with the agreement, and Petitioner filed an appeal with this Commission, which was docketed as EEOC Appeal No. 2020004460. In EEOC Appeal No. 2020004460, the Commission reversed the Agency’s finding of compliance and remanded the matter for further processing. EEOC ordered the Agency “to notify Petitioner of her option to either return to the status quo prior to the signing of the settlement agreement or to obtain specific performance of the agreement.” The Agency filed a request for reconsideration, which the Commission docketed as EEOC Request No. 2021000650. On December 9, 2020, the Commission issued a decision in 2021000650 denying the Agency’s request. Notwithstanding, the Commission modified the underlying decision (2020004460) to state the following: For purposes of clarity, we do not regard the reimbursement for travel expenses provided in paragraph 4 of the agreement for the six-month detail to be a monetary award that would need to be returned if Petitioner elects to reinstate her underlying complaint. In a letter dated December 18, 2020, to Petitioner’s representative, the Agency stated to “return to status quo,” Petitioner had to return the $25,000 lump sum payment and 187 hours of restored leave. 2021002587 3 The Agency informed Petitioner how to do so and stated that once it received the return payment and restored leave, it would reinstate Agency No. 2019-0083-HQ and issue a Notice of Right to File a formal complaint (NORF). Petitioner filed the instant petition for enforcement, alleging that the Agency failed to submit a final compliance report to EEOC as to how the complaint was resolved and provide supporting documentation. In addition, Petitioner alleged interference by the Agency’s Office of General Counsel. Petitioner asked the Commission “to compel the Agency to comply with the EEOC Order dated December 9, 2020, and December 17, 2020, by: (1) issuing a Notice of Right to File, (2) reinstating EPA No. 2019-0083-HQ as requested by Petitioner, and (3) issuing sanctions against the Agency for their failure to adhere to the Statute and MD-110.” Petitioner stated that she informed the Agency she wished to reinstate Agency No. 2019-0083-HQ on several occasions. In response, the Agency asserted that Petitioner refuses to return the $25,000 and 187 hours of restored leave received under the settlement agreement, which must be done for “return to the status quo” prior to reinstating the processing of Agency No. 2019-0083-HQ. ANALYSIS AND FINDINGS EEOC may, on its own motion or in response to a petition for enforcement or in connection with a timely request for reconsideration, issue a clarification of a prior decision. 29 C.F.R. § 1614.503(c). A clarification cannot change the result of a prior decision or enlarge or diminish the relief ordered, but may further explain the meaning and intent of the prior decision. Id. Petitioner stated that she wants the Agency to reinstate Agency No. 2019-0083-HQ and be issued a notice of right to file a formal complaint. Consistent with our prior decisions, should Petitioner’s complaint be reinstated for further processing, then Petitioner and the Agency would be returned to the status quo at the time that the parties entered into the settlement agreement, which would require that Petitioner return any benefits received pursuant to the settlement agreement. See, e.g., Armour v. Dep’t of Defense, EEOC Appeal No. 01965593 (June 24, 1997); Komiskey v. Dep’t of the Army, EEOC Appeal No. 01955696 (September 5, 1996). Accordingly, we remand Petitioner’s complaint, Agency No. 2019-0083-HQ, for reinstatement from the point processing ceased provided Petitioner returns the benefits promised in exchange for settlement of the underlying complaint. Here, that was a lump sum payment of $25,000 and 187 hours of restored leave. As stated in EEOC Request No. 2021000650, the “travel funding” referred to in paragraph 4 does not have to be returned. If Petitioner chooses not to or is unable to return the lump sum payment and restored leave as outlined in the Order below, Petitioner will retain the benefits conferred by the Agreement and both parties will abide by the terms of the settlement agreement. 2021002587 4 ORDER (1) Within fifteen (15) calendar days of the date of this decision, the Agency shall again notify Petitioner of: (a) the right to the reinstatement of Agency EEO Complaint No. 2019-0083-HQ upon Petitioner returning the lump sum payment of $25,000 (provided for in paragraph 6 of the agreement) and 187 hours of restored leave (the return to the status quo prior to the signing of the settlement agreement), OR (b) allowing the terms of the settlement agreement to stand by requesting specific performance, or not responding to the Agency notice, or not returning the aforementioned benefits from the agreement within a timely manner as outlined below. The Agency shall notify Petitioner that she has forty-five (45) calendar days from the date of receipt of the Agency's Notice within which to return the lump sum payment and restored leave to return to the status quo ante.2 (2) If Petitioner returns the aforementioned benefits within the forty-five (45) calendar day period, the Agency shall have fifteen (15) calendar days from receipt of the returned benefits within which to reinstate the complaint from the point processing ceased, including issuing a notice of right to file a formal complaint. The reinstated complaint should then be processed consistent with the procedures and timelines detailed in 29 C.F.R. Part 1614. (3) If Petitioner does not return the $25,000 lump sum payment and 187 hours of restored leave within forty-five (45) calendar days from receipt of the Agency’s Notice, such action will stand as a request for specific performance and each party will abide by the terms of the settlement agreement. The Agency is directed to submit a report of compliance, as provided in the statement entitled “Implementation of the Commission's Decision.” 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. 2 Essentially, Petitioner has the option of either returning the $25,000 and 187 hours of restored leave conferred pursuant to the agreement within the allotted timeframe and reinstating the complaint, or she can keep the benefits conferred pursuant to the agreement and abiding by the terms of the agreement. 2021002587 5 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. 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. 2021002587 6 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 October 28, 2021 Date