[Redacted], Zachery V., 1 Petitioner,v.John P. Roth, Acting Secretary, Department of the Air Force, Agency.

Equal Employment Opportunity Commission

Feb 25, 2021

Appeal No. 0120170231 (E.E.O.C. Feb. 25, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Zachery V.,1 Petitioner, v. John P. Roth, Acting Secretary, Department of the Air Force, Agency. Petition No. 2020000605 Request No. 0520180139 Appeal No. 0120170231 Agency No. AFB5A0J16002 DECISION ON A PETITION FOR ENFORCEMENT On October 31, 2019, the Equal Employment Opportunity Commission (EEOC or Commission) docketed a petition for enforcement to examine the enforcement of an Order set forth in Zachery V. v. Dep't of the Air Force, EEOC Appeal No. 0120170231 (Oct. 31, 2017). The Commission accepts this petition for enforcement pursuant to 29 C.F.R. § 1614.503. BACKGROUND At the time of events giving rise to this complaint, Petitioner worked as an Information Specialist at the Agency’s 17th Training Wing (AETC) facility at the Goodfellow Air Force in Texas. Petitioner filed a complaint in which he claimed that the Agency discriminated against him on the bases of his race (Caucasian), sex (male), religion (Jewish) and disability (personality disorder) in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq., and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq., when since 2015 the Agency subjected him to a hostile work environment and failed to provide reasonable accommodation. 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. 2020000605 2 The Agency dismissed the complaint on the grounds that Petitioner failed to file his complaint in a timely manner. Petitioner appealed the Agency’s final decision to the Commission, and in Zachery V. v. Dep't of the Air Force, EEOC Appeal No. 0120170231 (Oct. 31, 2017), the Commission found that the Agency improperly dismissed the instant complaint and remanded the matter for further processing. The Commission provided the following Order: The Agency is ordered to process the remanded claims in accordance with 29 C.F.R. § 1614.108. The Agency shall acknowledge to the Complainant that it has received the remanded claims within thirty (30) calendar days of the date this decision was issued. The Agency shall issue to Complainant a copy of the investigative file and shall also notify Complainant of the appropriate rights within one hundred fifty (150) calendar days of the date this decision was issued, unless the matter is otherwise resolved prior to that time. If the Complainant requests a final decision without a hearing, the Agency shall issue a final decision within sixty (60) days of receipt of Complainant's request. A copy of the Agency’s letter of acknowledgment to Complainant and a copy of the notice that transmits the investigative file and notice of rights must be sent to the Compliance Officer as referenced below. The Commission later denied the Agency’s request for reconsideration. The matter was assigned to a Compliance Officer and docketed as Compliance No. 2020000581. Petitioner states that he has not received communication from the Agency concerning the remand and processing of his claims. Petitioner contends that the Agency failed to investigate the complaint. Petitioner argues that the Agency has not sent any information to the Compliance Officer. Petitioner requests as a sanction that an EEOC Administrative Judge issue a default judgment against the Agency. In the alternative, Petitioner requests that an adverse inference be drawn that any information and testimony that the Agency did not provide during the investigation would have reflected unfavorably on the Agency. Petitioner also requests the award of attorney’s fees and costs incurred in the preparation of his petition. Petitioner points out that it has been over a year since the Agency was ordered to process the remanded claims after the denial of its request for reconsideration. In response, the Agency acknowledges that it failed to comply with the Commission’s Order. According to the Agency, its failure to comply was inadvertent. The Agency explains that its failure to comply for over 400 days stemmed from processing deficiencies that existed in its newly instituted Case Management Office system. The Agency states that its systems migration problem resulted in a lack of communication between its Civilian Appellate Review Office and the Goodfellow Base EEO Office, which is where the claim originated and would be investigated. The Agency asserts that due to the systems migration problem, Petitioner’s case was misplaced, and the remand decision was never communicated to the facility that was responsible for notifying Petitioner and initiating the investigation. 2020000605 3 The Agency argues that given its lack of intent in its failure to comply with the Commission’s order, a lesser sanction, if any, should be issued. The Agency maintains that Petitioner has not suffered any actual harm such as retired or unavailable witnesses. According to the Agency, an appropriate sanction to address its conduct is to order it to: (1) post a notice at its Equal Employment Opportunity Compliance and Complaints Review Office concerning its failure to comply with our regulatory timeframes; (2) provide training to its EEO personnel who failed to comply with our regulatory timeframes; (3) consider taking disciplinary action against these EEO personnel; and (4) pay Petitioner attorney’s fees for filing the petition in this case. In its response, the Agency provides a letter dated August 20, 2019, from the Goodfellow Base Vice Commander stating that the complaint has been accepted for further processing and expedited action. On October 22, 2019, an EEO Specialist within the Agency’s Civilian Appellate Review Office certified that a digital reproduction of the report of investigation/investigative file was served to Petitioner and his attorney. ANALYSIS AND FINDINGS It is clear that the Agency acknowledges that it had entirely failed to comply with the Commission’s Order at the time Petitioner filed the instant petition. We discern from its response that it was not the Agency’s intent to delay or otherwise thwart the processing of the instant complaint. Based on its October 22, 2019 correspondence, it is evident that despite the delay the Agency has now complied with the Commission’s Order and completed the ordered investigation. Nonetheless, Commission will now address whether the Agency’s untimely investigation warrants sanctions. The procedures contained in the Commission's regulations are no more or no less than the necessary means to eliminate unlawful employment discrimination in Federal employment. Mach v. Dep't of Def., EEOC Appeal No. 0120080658 (Nov. 30, 2010). As such, the Commission has exercised its inherent authority to enforce its 29 C.F.R. Part 1614 regulations by ordering sanctions in response to various types of violations. See Complainant v. Dep't of Energy, EEOC Appeal No. 0120113823 (Nov. 17, 2015) (sanction warranted where agency failed to submit hearing transcripts on appeal); Complainant v. Dep't of the Air Force, EEOC Appeal No. 0120110789 (Sept. 24, 2013) (sanction appropriate where agency failed to provide copy of hearing record, including hearing transcripts). Sanctions serve a dual purpose. On the one hand, they aim to deter the underlying conduct of the non-complying party and prevent similar misconduct in the future. Barbour v. U.S. Postal Serv., EEOC Appeal No. 07A30133 (June 16, 2005). On the other hand, they are corrective and provide equitable remedies to the opposing party. Given these dual purposes, sanctions must be tailored to each situation by applying the least severe sanction necessary to respond to a party’s failure to show good cause for its actions and to equitably remedy the opposing party. Royal v. Dep’t of Veterans Affairs, EEOC Request No. 0520080052 (Sept. 25, 2009). 2020000605 4 Factors pertinent to “tailoring” a sanction, or determining whether a sanction is even warranted, include: (1) the extent and nature of the non-compliance, including the justification presented by the non-complying party; (2) the prejudicial effect of the non-compliance on the opposing party; (3) the consequences resulting from the delay in justice, if any; (4) the number of times the party has engaged in such conduct; and (5) the effect on the integrity of the EEO process as a whole. Id. Default judgment is among the harshest sanctions available and is only appropriate in limited circumstances. Here, the record reveals that the Agency’s investigation of the remanded complaint was significantly delayed by several technical problems including Agency’s migration to a new case management system. These problems were not necessarily the result of malicious intent or deliberate malfeasance. In terms of the second, third, and fourth factors, the extraordinary delay it took to complete the investigation did compromise Petitioner’s right to have his complaint expeditiously processed. However, the Agency took steps to rectify the problem once notified and Petitioner has produced no evidence demonstrating any harm or prejudice. In terms of the fifth factor, we find that the Agency’s failure to meet the deadlines as ordered in the appellate decision did impugn the integrity of its EEO complaint process. We do not, however, consider either a default judgment or the drawing of an adverse inference an appropriate sanction to address the conduct at issue. Nonetheless, several measures would properly address the situation caused by the Agency. In fact, we generally agree with the Agency’s argument as to the sanctions that should be imposed. Based on the specific facts of this case, we find that the most appropriate sanction to address the Agency’s conduct is to order the Agency to: (1) post a notice at its Civilian Appellate Review Office located at its Joint Base Andrews in Maryland regarding its failure to comply with our regulatory timeframes; (2) provide training to its EEO personnel who failed to comply with our regulatory timeframes; (3) consider taking disciplinary action against these EEO personnel; and (4) pay Petitioner attorney’s fees and costs for filing the petition in this case. More importantly, the Agency should consider putting in place systems which are designed to prevent such extensive delays in resolving EEO complaints. Accordingly, based on a thorough review of the record, the Commission DENIES Petitioner’s Petition for Enforcement. However, the Commission REMANDS this matter to the Agency for further processing consistent with this decision and the ORDER below. ORDER The Agency is ordered to complete the following remedial actions: 1. Within 90 days of the date this decision is issued, the Agency shall provide at least two (2) hours of in-person training to all EEO officials involved in processing complaints regarding their case processing responsibilities, with special emphasis on the importance of abiding by regulatory mandates and time limits. 2. Within 60 days of the date this decision is issued, the Agency shall consider taking appropriate disciplinary action against these responsible EEO personnel. The 2020000605 5 Commission does not consider training to be disciplinary action. The Agency shall report its action to the Compliance Officer. If the Agency decides to take disciplinary action, it shall identify the action taken. If the Agency decides not to take disciplinary action, it shall set forth the reason(s) for its decision not to impose discipline. If any of the responsible management officials have left the Agency’s employ, the Agency shall furnish documentation of their departure date(s). 3. As a sanction, the Agency shall pay Petitioner attorney’s fees and costs for filing this petition in accordance with the procedures set forth below in Paragraph H. 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 that the corrective action has been implemented. POSTING ORDER (G0617) The Agency is ordered to post at its work facility at Andrews Air Force Base, Maryland copies of the attached notice. Copies of the notice, after being signed by the Agency's duly authorized representative, shall be posted both in hard copy and electronic format by the Agency within 30 calendar days of the date this decision was issued, and shall remain posted for 60 consecutive days, in conspicuous places, including all places where notices to employees are customarily posted. The Agency shall take reasonable steps to ensure that said notices are not altered, defaced, or covered by any other material. The original signed notice is to be submitted to the Compliance Officer as directed in the paragraph entitled "Implementation of the Commission's Decision," within 10 calendar days of the expiration of the posting period. The report must be in digital format and must be submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). ATTORNEY'S FEES (H1016) If Petitioner has been represented by an attorney (as defined by 29 C.F.R. § 1614.501(e)(1)(iii)), he is entitled to an award of reasonable attorney's fees incurred in the processing of this petition. 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 2020000605 6 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 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. 2020000605 7 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 February 25, 2021 Date