Toshia F.,1 Petitioner,v.Ryan D. McCarthy, Secretary, Department of the Army, Agency.

Equal Employment Opportunity Commission

Jan 31, 2020

2019004336 (E.E.O.C. Jan. 31, 2020)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Toshia F.,1 Petitioner, v. Ryan D. McCarthy, Secretary, Department of the Army, Agency. Petition No. 2019004336 Appeal No. 0120160388 Agency No. ARGORDON11AUG03437 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. 0120160388 (February 28, 2018). See 29 C.F.R. § 1614.503. BACKGROUND At the time of events giving rise to this complaint, Petitioner worked as a permanent hire Supply Technician, GS-2005-06, Inventory Management Section, Logistics Branch at the Agency’s Dwight D. Eisenhower Army Medical Center in Fort Gordon, Georgia. On August 29, 2011, Petitioner filed a formal EEO complaint alleging the Agency discriminated against her based on race (African-American) and age (52) in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq., when she was not selected for the position of Supply Technician, GS-2005-07. 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. 2019004336 2 Petitioner appealed the Agency’s final decision finding no discrimination. In Appeal No. 0120160388, the Commission concluded that Petitioner prevailed in establishing that she was subjected to discrimination based on her race and age when she was not selected for the Supply Technician position. The Order in the decision specified: 1. Within 60 calendar days, the Agency shall place Petitioner into a substantially equivalent position to the one listed in Vacancy Announcement Number SCDZ11034274, retroactive to the date of her non-selection. If Petitioner declines the position, Petitioner's entitlement to back pay will cease on the date on which she declines the position. 2. Within 120 calendar days, the Agency will determine the appropriate back pay, with interest, and other benefits due to Petitioner, pursuant to 29 C.F.R. § 1614.501. Petitioner will cooperate in the Agency's efforts to compute the amount of back pay and benefits due and will provide all relevant information requested by the Agency. 3. Within 120 calendar days, the Agency shall consider Petitioner's claim for compensatory damages, incurred as result of the Agency's discriminatory actions. Within 15 days of the date this decision becomes final, the Agency shall notify Petitioner of her right to present evidence to the Agency regarding her claim for compensatory damages. Petitioner shall provide objective evidence that the damages in question were a result of the Agency’s discrimination and of the amount of the claimed damages. Within 30 days of the submission of such evidence, the Agency shall issue a final agency decision on this issue, with appropriate appeal rights to the Commission 4. Within 30 calendar days of the date this decision, the Agency shall post a Notice of Violation. The matter was docketed for compliance monitoring as Compliance No. 0620180376 on March 6, 2018. Since that date, the Agency has not provided proof that it has complied with the orders listed as 1, 2, and 4. However, the record included a copy of the Agency’s final decision regarding Petitioner’s entitlement to compensatory damages and attorney’s fees and costs as listed in order 3. 2019004336 3 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 nearly two years, the Agency has failed to report that it has fully complied with the Commission’s orders in EEOC Appeal No. 0120160388. 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, See, EEOC Petition Nos. 2019001866, 2019004318, 2019004319, 2019004320, 2019004321, 2019004322, 2019004323, 2019004324, 2019004325, 2019004327, 2019004328, 2019004329, 2019004330, 2019004332, 2019004334, 2019004335, 2019004337, 2019004338, and 2019004339. Based on the Agency’s failure to provide evidence of its full compliance with EEOC’s orders in Appeal No. 0120160388, we cannot conclude that it is in compliance. The Commission directs the Agency to immediately take action consistent with the Order below. ORDER 1. Within thirty (30) calendar days of the date this decision is issued, the Agency is ordered to provide EEOC with adequate documentation that it has taken the following remedial actions as ordered in Appeal No. 0120160388: a. The Agency shall place Petitioner into a substantially equivalent position to the one listed in Vacancy Announcement Number SCDZ11034274, retroactive to the date of her non-selection. If Petitioner declines the position, Petitioner’s entitlement to back pay will cease on the date on which she declines the position. b. The Agency will determine the appropriate back pay, with interest, and other benefits due to Petitioner, pursuant to 29 C.F.R. § 1614.501. Petitioner will 2 Here, EEOC Appeal No. 0120160388 is the Commission’s final decision as no requests for reconsideration were filed. 2019004336 4 cooperate in the Agency's efforts to compute the amount of back pay and benefits due and will provide all relevant information requested by the Agency. The Agency shall complete this action within 30 calendar days of receipt of this decision. c. Post the Notice of Violation as ordered in Appeal No. 0120160388. 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 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). ATTORNEY'S FEES (1019) If Complainant 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. 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. 2019004336 5 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. 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. 2019004336 6 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. Such requests do not alterthe 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