Shayne B.,1 Petitioner,v.Ryan D. McCarthy, Secretary, Department of the Army, Agency.

Equal Employment Opportunity Commission

Jan 31, 2020

2019004322 (E.E.O.C. Jan. 31, 2020)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Shayne B.,1 Petitioner, v. Ryan D. McCarthy, Secretary, Department of the Army, Agency. Petition No. 2019004322 Appeal No. 0120180760 Agency No. ARTACOM17OCT03669 DECISION ON A PETITION FOR ENFORCEMENT On June 28, 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. 0120180760 (March 13, 2018). See 29 C.F.R. § 1614.503. BACKGROUND At the time of events giving rise to this complaint, Petitioner worked as an Industrial Specialist, GS-1150-09, at the Agency’s Watervliet Arsenal in Watervliet, New York. On October 4, 2017, Petitioner filed a formal complaint alleging that the Agency subjected him to discrimination on the bases of sex (male), religion (Jewish), age (72), and reprisal for prior protected EEO activity when, on October 3, 2017, Petitioner became aware that he was not interviewed or selected for the position of Industrial Specialist, #NEAJ175991963781, in a recruitment action, Vacancy ID: 1963781. The Agency dismissed the complaint, pursuant to 29 C.F.R. § 1614.107(a)(1), for failure to state a claim. Petitioner appealed. 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. 2019004322 2 In Appeal No. 0120180760, issued March 13, 2018, the Commission reversed the Agency’s dismissal and ordered the Agency to process the remanded claims in accordance with 29 C.F.R. § 1614.108. The Agency was to acknowledge to the Petitioner that it had received the remanded claims within thirty (30) calendar days of the date the decision was issued. The Agency was ordered to issue Petitioner a copy of the investigative file and also to notify Petitioner of the appropriate rights within one hundred fifty (150) calendar days of the date the decision was issued, unless the matter is otherwise resolved prior to that time. The matter was docketed for compliance monitoring as Compliance No. 0620180406 on March 14, 2018. The Agency provided EEOC its acknowledgment letter dated April 30, 2018. However, in the twenty-one months since that time, the Agency has failed to file the ordered report of its full compliance with EEOC Appeal No. 0120180760, including evidence that it completed the investigation, or to respond to related inquiries from the EEOC. ANALYSIS AND FINDINGS EEOC Regulations 29 C.F.R. § 1614.502(a) and § 1614.503 provide that relief ordered in a final2 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 over a year-and-a-half, the Agency has failed to report in on its compliance with the Commission’s remand order in EEOC Appeal No. 0120180760. 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. 2019001866, 2019004318, 2019004319, 2019004320, 2019004321, 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. 0120180760, we cannot conclude that it is in compliance. The Commission directs the Agency to immediately take action consistent with the Order below. 2 Here, EEOC Appeal No. 0120180760 is the Commission’s final decision as no requests for reconsideration were filed. 2019004322 3 ORDER 1. Within thirty (30) calendar days of the date this decision is issued, the Agency shall provide the assigned EEOC Compliance Officer the following as ordered in EEOC Appeal No. 0120180760: a) a copy of the Agency’s notice that transmitted the completed investigative file and notice of rights; b) either a copy of the Petitioner’s request for a hearing, a copy of Petitioner’s request for a FAD, or a statement from the Agency that it did not receive a response from Petitioner by the end of the election period; and c) if Petitioner failed to request a hearing and/or requested a FAD, the Agency shall provide a copy of the FAD. 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.3 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). 3 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. 2019004322 4 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. 2019004322 5 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