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

Equal Employment Opportunity Commission

Jan 31, 2020

Appeal No. 0120172900 (E.E.O.C. Jan. 31, 2020)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Natalie F.,1 Petitioner, v. Ryan D. McCarthy, Secretary, Department of the Army, Agency. Petition No. 2019001866 Appeal No. 0120172900 Agency No. ARMEADE15JUL02484 DECISION ON A PETITION FOR ENFORCEMENT On February 22, 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. 0120172900 (January 31, 2018). See 29 C.F.R. § 1614.503. BACKGROUND At the time of events giving rise to this complaint, Petitioner worked at the Agency’s U.S. Installation Management Command, U.S. Army Garrison at Fort Meade, Maryland. On May 25, 2017, Petitioner and the Agency entered into a settlement agreement to resolve an EEO matter alleging a violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq. The settlement agreement provided, in pertinent part, that in exchange for Petitioner withdrawing her complaint, the Agency agreed to the following terms: A. Rescind the removal of the Petitioner. Expunge the Petitioner’s Official Personnel File of the record of the removal. B. Restoration of the sick leave used during the timeframe of the EEO case (June 2, 2015 to February 24, 2016) up to 254 hours. 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. 2019001866 2 C. Place the Petitioner in the position of a NAF Administrative Assistant, pay band 2, at the same pay as her previous position. D. Pay Petitioner $1,000. The Agency must coordinate with other agencies to effect payment. This may take 45 days or more. The Agency will use reasonable efforts to ensure timely payment, but delay shall not constitute a breach of this agreement. Petitioner subsequently alleged that the Agency breached the settlement agreement. The Agency conducted an inquiry and determined there was no breach. Petitioner appealed. In Appeal No. 0120172900, the Commission found that the Agency had breached the settlement agreement and ordered, in pertinent part, the following: 1. Within thirty (30) calendar days of the date this decision was issued, the Agency is ordered to comply with all the terms of the May 25, 2017 settlement agreement and provide a compliance report detailing its actions to [Petitioner] and the EEOC Compliance Officer referenced below. (Emphasis in original.) 2. As part of this compliance, the Agency shall retroactively place Petitioner in the position of a NAF Administrative Assistant, pay band 2, at the same pay as her previous position, retroactive to 30 days after the effective date (May 25, 2017) of the settlement agreement, and provide her with an appropriate back pay award for this period for any time she was not paid. If due to her disability, Petitioner needs a reasonable accommodation to perform in this position, the Agency shall engage in an interactive process to determine what accommodation may be necessary. (Emphasis in original.) On March 31, 2018, Petitioner filed a petition for enforcement arguing that the Agency failed to take the corrective actions ordered by the Commission’s decision. She followed up with a second petition dated April 11, 2018, asserting that the Agency still has not complied with the provisions of the settlement agreement. On July 24, 2018, the EEOC’s Office of Federal Operations sent the Agency a letter stating that the Agency had not provided any information or evidence to show that it has implemented the Commission’s decision. In response, on August 15, 2018, the Agency submitted a compliance report detailing its compliance actions. The Agency provided proof that it had complied with all the terms of the settlement agreement except for providing Petitioner with restoration of sick leave from June 2, 2015 to February 24, 2016, and restoration of annual leave used in lieu of sick leave from June 2, 2015 to February 24, 2016. Petitioner was to provide the Agency with proof that she would have used sick leave for those dates. In an email contained in the compliance report, dated August 8, 2018, the Agency admitted that the payroll technician processed the re-credited leave incorrectly. On February 22, 2019, the Commission docketed the petition for enforcement at issue. Petitioner contacted the Compliance Officer by email dated July 19, 2019 stating that: 2019001866 3 1. The Agency has not restored the 150 hours of annual leave. 2. The Agency has not restored the 254 hours of sick leave. I submitted proof of my medical appointments to the Agency on February 09, 2018.2 The Agency did not respond to instant petition. ANALYSIS AND FINDINGS EEOC Regulations 29 C.F.R. § 1614.502(a) and § 1614.503 provide that relief ordered in a final3 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 two years, the Agency has failed to provide the Commission proof that it has restored Petitioner’s annual leave and sick leave from June 2, 2015 to February 24, 2016 as ordered in EEOC Appeal No. 0120172900. 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. 2019004318, 2019004319, 2019004320, 2019004321, 2019004322, 2019004323, 2019004324, 2019004325, 2019004327, 2019004328, 2019004329, 2019004330, 2019004332, 2019004334, 2019004335, 2019004336, 2019004337, 2019004338, and 2019004339. Based on the Agency’s failure to provide evidence of its compliance with EEOC’s order in Appeal No. 0120172900, we cannot conclude that it is in compliance. The Commission directs the Agency to immediately take action consistent with the Order below. 2 We note that Petitioner alleged that the Agency included information in her personnel file regarding Leave without Pay (LWOP) status from February 24, 2016 through June 21, 2017. To the extent that she wishes to raise new claims of discrimination or reprisal regarding actions or incidents that occurred after the date of the Agreement, which are not related to the implementation of the Agreement, she should raise those claims with an Agency EEO Counselor. 3 Here, EEOC Appeal No. 0120172900 is the Commission’s final decision as no requests for reconsideration were filed. 2019001866 4 ORDER (1) Within thirty (30) calendar days of the date this decision is issued, the Agency shall provide the Commission proof that it has restored Petitioner’s annual leave and sick leave from June 2, 2015 to February 24, 2016. (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.4 (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). 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. 4 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. 2019001866 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. 2019001866 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 January 31, 2020 Date