[Redacted], Randolph A., 1 Petitioner,v.Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

Jun 23, 2021

Petition No. 2020004882 (E.E.O.C. Jun. 23, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Randolph A.,1 Petitioner, v. Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency. Petition No. 2020004882 Request No. 2020000861 Prior Nos. 0120120184, 0520160050, 0420170020, 0120181473 Agency No. 200P-00102010104757 DECISION ON A PETITION FOR ENFORCEMENT On September 2, 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 Request No. 2020000861 (June 23, 2020). The Commission accepts this petition for enforcement pursuant to 29 C.F.R. § 1614.503. BACKGROUND In September 2010, Petitioner filed a formal EEO complaint alleging that his non-selection for a GS-13 Statistician position at the Agency’s Medical Center in San Francisco, California, was based on race (Asian), national origin (Taiwan), age, and in reprisal for his prior EEO activity. Following an investigation, Petitioner requested a hearing before an EEOC Administrative Judge (AJ). The AJ, however, granted the Agency’s motion for summary judgment and issued a decision, without a hearing, finding no discrimination was established. The Agency issued a decision fully implementing the AJ’s decision. Petitioner appealed the decision to the Commission. 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. 2020004882 2 The Commission determined that the AJ properly granted summary judgment as the record did not contain a genuine issue of material fact. See EEOC Appeal No. 0120120184 (August 6, 2015). However, the Commission found that the record reflected that Petitioner’s non-selection was based on unlawful reprisal in violation of Title VII. The Agency was ordered to provide Petitioner various remedies, including the following: an offer to place Petitioner in the Statistician, GS-13, position or its equivalent; back pay and benefits with interest; and attorney’s fees and costs. Additionally, a supplemental investigation, regarding Petitioner’s entitlement to compensatory damages, was ordered. See id. Disputing the Commission’s decision, the Agency filed a request for reconsideration. See EEOC Request No. 0520160050 (February 2, 2016). The request was denied, and the Agency was ordered to comply with the order previously set forth in EEOC Appeal No. 0120120184. According to Petitioner, while the Agency initially appeared to comply with the order, by initiating an investigation into compensatory damages and offering him the Statistician position, in June 2016, the Agency nonetheless withdrew its job offer. Further, in correspondence dated June 23, 2016, the Agency requested that the Commission vacate its decision based on a November 15, 2010 settlement agreement. Details regarding the November 2010 agreement were also submitted, on August 24, 2016, as part of the Agency’s compliance report regarding EEOC Appeal No. 0120120184/Request No. 0520160050. Arguing that the Agency’s requests to vacate were an impermissible appeal, Petitioner filed a Petition for Enforcement seeking Agency compliance with the Commission’s prior decisions and orders. The Commission docketed the petition on May 2, 2017, to examine the matter. In EEOC Petition No. 0420170020, the Commission found the Agency’s post-appeal argument (that Petitioner’s recovery is barred by the 2010 settlement agreement) was untimely raised. Moreover, “the Agency has waived this argument by failing to raise it during the hearing stage, the initial appeal, or even in its own request for reconsideration, all adjudicated well after the purported Release was signed.” See EEOC Petition No. 0420170020 (Nov. 22, 2017). The Agency’s “attempts to contravene the Commission’s express order of remedies” were rejected. See id. Concluding that the Agency had not complied with our previous orders, Petitioner’s petition for enforcement was granted. The Agency was ordered to complete the actions required of it, as originally set forth in EEOC Appeal No. 0120120184.2 Approximately six weeks later, in a letter dated January 18, 2018, the Agency wrote to EEOC Acting Chair Lipnic seeking review and reversal of the order based on the November 2010 settlement agreement. Following these failed efforts, on February 22, 2018, the Agency issued a final order regarding Petitioner’s entitlement to compensatory damages. Specifically, the Agency awarded Petitioner $75,000 in non-pecuniary damages, and a total of $96,976.81 in compensatory damages. Petitioner appealed the award to the Commission. 2 The matter was assigned Compliance No. 0620180146, which remains open. 2020004882 3 In EEOC Appeal No. 0120181473 (Sept. 19, 2019), the Commission reviewed the Agency’s decision on compensatory damages,3 and in so doing, yet again addressed the Agency’s contention that Petitioner’s case was precluded by the November 2010 settlement agreement. Specifically, the Commission noted that, “as discussed in previous associated matters in this case,” the Agency’s arguments regarding the settlement agreement are untimely and waived. Further, the Commission observed: “While the Agency may have intended for the settlement agreement to cover this complaint, the record is clear that the Agency continued processing and litigating the complaint following the signing of the agreement.” The Commission was not persuaded by the Agency’s arguments of bad faith or misconduct on the part of Petitioner or communication issues within the Agency. Turning to the merits of the Agency’s award of compensatory damages, the Commission modified the award for a total of $129,540.09.4 The Agency filed a Request for Reconsideration and again attempted to resurrect its contention that Petitioner is not entitled to any award of compensatory damages because the underlying complaint was settled on November 15, 2010. See EEOC Request No. 2020000861 (June 23, 2020). Despite repeatedly addressing the Agency’s assertion in prior decisions, the Commission nonetheless provided the Agency with further reasoning and explanation. Assuming, for the purpose of analysis only, that the November 2010 agreement applied to the EEO complaint at issue,5 the Commission stated that such agreements typically result in the dismissal of an appeal where “the existence of [the] settlement agreement was raised prior to a finding of liability by the Commission.” See id. In this case, the Agency’s disclosure was well after the Commission found the Agency was liable and the corresponding Agency request for reconsideration was denied. The Commission cited the doctrine of laches as applicable in light of the “almost six-year delay” by the Agency. See id. The Commission noted that the ineffective record-keeping system described by the Agency, “illustrates its failure to act with due diligence”, rather than providing an adequate excuse. See id. Perhaps most importantly, the Commission found that Petitioner was prejudiced by the Agency’s delay. Petitioner was pro se and did not hire an attorney until after the Agency was found liable and ordered to provide relief. Since that time, Petitioner has incurred litigation costs “based on his detrimental reliance on the Agency’s actions.” See id. The Agency’s request was denied and the Agency was ordered to comply with the Order set forth in 3 Observing that Complainant’s appeal also addressed back pay and attorney’s fees, the Commission noted that these remedies were not included in the Agency’s February 22, 2018 decision and therefore not presently before us. If Complainant believed that the Agency had not provided all the relief he was entitled to, the Commission advised him to raise the matter through Compliance Case No. 0620180146. 4 The award was comprised of $100,000 in non-pecuniary damages, $6498.00 for future pecuniary damages, and $23,042.09 in past pecuniary damages. 5 The “global” settlement agreement was reached in a proceeding concerning another EEO complaint. 2020004882 4 EEOC Appeal No. 0120181473, modifying the Agency’s decision on compensatory damages. A new compliance file was opened (Compliance No. 2020003972). Rather than comply with our order, a week later, the Agency submitted to the Compliance Officer a copy of its earlier January 18, 2018 letter to Acting Chair Lipnic. On September 2, 2020, the instant petition was docketed. The Agency plainly asserts that it “owes Petitioner nothing as the EEOC and OFO are without jurisdiction to make an award in this dismissed case.” For no less than the third time, the Agency proffers its January 18, 2018 letter to support its belief that the underlying complaint has been settled and Petitioner is not entitled to any remedies. ANALYSIS From the time of our decision in Petition No. 0420170020, more than three years ago, to the instant petition, neither have the Agency’s contentions substantively changed nor have the Commission’s determinations. The Agency does not dispute that it first raised the matter of the November 2010 settlement agreement years later - after the instant case was investigated, after the matter went before an AJ, after the Agency itself issued a final decision, after Petitioner filed an appeal, after the Commission determined that the Agency had retaliated against Petitioner, after the Agency was ordered to provide relief, and after the Agency exhausted its appeals with the Commission when it received a decision on its request for reconsideration. Despite exhausting the EEO process, the Agency’s argument regarding the 2010 settlement agreement was acknowledged, and dispensed with, in the Commission’s November 22, 2017 determination granting Petitioner’s petition. See EEOC Petition No. 0420170020. The Agency, however, continues its efforts to dismiss the underlying complaint. Analogously, Rule 8(c) of the Federal Rules of Civil Procedure requires a party to affirmatively plead certain specified defenses, including accord and satisfaction, release, and wavier. Failure to do so generally results in the waiver of that defense and its exclusion from the case. See Federal Practice and Procedure (Wright & Miller), § 1278 Effect of Failure to Plead an Affirmative Defense; Badway v. United States 367 F.2d 22, 25 (1st Cir. 1966). See also, Wood v. Milyard, 566 U.S. 463,470, 132 S. Ct. 1826, 1832 (2012) (“An affirmative defense, once forfeited, is exclu[ded] from the case, . . . and, as a rule, cannot be asserted on appeal."). Even where a court chooses not to strictly apply Rule 8(c) and uses its discretion to allow a party to later amend its pleadings to raise an affirmative defense pursuant to Federal Rule of Civil Procedure 15(a), factors such as undue delay, bad faith, undue prejudice to the opposing party, and futility are considered. See Forman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 230 (1962)., Here, the Agency seeks to submit a global settlement agreement that it was a party to and has been in its possession since the filing of the instant complaint. See Burns v. Imagine Films Entertainment, Inc. 165 F.R.D. 381 (1996) (defendant’s motion to amend denied where an oversight within defense counsels’ law firm regarding their possession of an agreement to 2020004882 5 arbitrate resulted in a four-year delay in asserting new affirmative defenses based on the agreement). In Burns, the defendants engaged in years of pretrial litigation, including motions addressing the merits of the case, and submitted to the jurisdiction and procedures of the court. Only after the plaintiffs filed for sanctions did the defendants raise the issue of an arbitration agreement. See id. Likewise, in the instant case, the Agency argued the existence and applicability of the settlement agreement for the first time, in February 2016, after a finding of discrimination was entered and it initially took steps to partially comply with the Commission’s remedial orders. We note that as litigation proceeds, a party’s ability to amend becomes more limited. While Rule 15(a) looks to undue delay and prejudice to the other party, Rule 16(b) “good cause” standard is more demanding. See Johnson v. Mammoth Recreations, Inc. 975 F.2d 604 (9th Cir. 1992). The focus turns to the “diligence of the moving party”. Holmes v. Grubman, 568 F.3d 329, 335 (2nd Cir. 2009). “[C]arelessness is not compatible with a finding of diligence and offers no reason for a grant of relief.” Fed.R.Civ.P. 16 advisory committee’s note (1983 amendment). Here, the Agency can only look to its own internal practices and policies for its failure in identifying the global settlement agreement in a timely manner. The Agency’s actions, or inactions, illustrate a lack of due diligence. See Liverpool v. Davis, 2020 WL 7398745 (Defendants did not dispute that their attorneys, the New York City Law Department, had a copy of a general release for the duration of the case, but did not timely learn of its existence because a prior claim by plaintiff was handled by another division of the department. While sympathizing with the defendants, that they did not receive the full benefit of agreement, the Court noted that the defendant did not show “good cause” for their more than three year delay in “locating a piece of paper they and their counsel have possessed since before Plaintiff filed suit.”). Here, the circumstances do not support a finding that the Agency acted with the required diligence. When an Agency executes a global settlement in an EEO case it is incumbent upon it to have systems in place to ensure that all pending complaints are properly disposed of. That was clearly not done in the instant case. Our discussion of the Federal Rules of Civil Procedure, while merely illustrative and not binding on the federal EEO administrative process, is offered in the hopes of providing clear understanding to the Agency. While the denial of amendments in the federal cases cites are analogous to the matter before us, we also reiterate an important distinction - here, the Agency did not raise the settlement agreement during the early stages of processing or even while the case was before an AJ. It was only after a finding of discrimination was entered on appeal and the exhaustion of its challenges to that decision that the Agency raised for the first time the existence of the 2010 settlement agreement. Between the denial of the Agency’s first request for reconsideration of the finding of liability and the granting of Petitioner’s first petition for enforcement, the Agency presented the matter of the 2010 settlement agreement to the Commission at least four times. None of its attempts, with Compliance Officers, the Office of the Acting Chair, or in response to the Petition for Enforcement, succeeded. The Agency has expended all opportunities to present its objections to the Commission’s finding of discrimination. 2020004882 6 In a concession to the legitimacy of the underlying complaint and the Commission’s string of orders, the Agency eventually issued a final decision regarding compensatory damages. In its February 22, 2018 decision, as noted above, the Agency awarded Petitioner $96,976.81. When Petitioner exercised his right to appeal, however, the Agency again returned to its unsuccessful argument that the case was barred by the 2010 settlement agreement. The Agency’s time for presenting its objections to the finding of discrimination and award of remedies, made in August 2015 in EEOC Appeal No. 0120120184, has long passed. The unduly long procedural history of this case reflects erratic compliance by the Agency, surrounded by repeatedly made, and rejected, arguments to have this case dismissed. We find that the Agency is not in compliance with our previous orders in EEOC Appeal No. 0120181473 and EEOC Request No. 2020000861. Petitioner’s petition for enforcement is GRANTED. We direct the Agency to comply with the Order below. ORDER Within sixty (60) calendar days of the date this decision is issued, the Agency, to the extent it has not already done so, is ORDERED to pay Petitioner compensatory damages in the amount of $129,540.09. 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). Failure by the Agency to either file the compliance report or implement the orders set forth in this decision 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. ATTORNEY'S FEES (H1019) If Petitioner 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 2020004882 7 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. 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. 2020004882 8 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 June 23, 2021 Date