0420150015
01-11-2018
Bella S.,1 Petitioner, v. Jeff B. Sessions, Attorney General, Department of Justice (Drug Enforcement Administration), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Bella S.,1
Petitioner,
v.
Jeff B. Sessions,
Attorney General,
Department of Justice
(Drug Enforcement Administration),
Agency.
Petition No. 0420150015
Request No. 0520130561
Agency No. 89-66598-005
DECISION ON A PETITION FOR ENFORCEMENT
On June 29, 2015, the Equal Employment Opportunity Commission (EEOC or Commission) docketed a petition for enforcement to examine the Agency's compliance with the Order set forth in EEOC Request No. 0520130561 (August 12, 2014). Petitioner alleged that the Agency failed to fully comply with the Commission's Order. For the reasons stated below, we DENY the petition.
ISSUE PRESENTED
Whether the Agency complied with the provision in the Commission's Order in EEOC Request No. 0520130561 to implement a Gender Discrimination Remedy Plan (GDRP), which was intended to eliminate discrimination against female Special Agents (SA) who apply for foreign assignments.
BACKGROUND
This matter has a long and complicated procedural history. Consequently, we will only state those facts that are pertinent to resolving this matter. Petitioner is a Special Agent (SA), GS-13, with the Drug Enforcement Agency (DEA). She, as the Class Representative, filed a formal class complaint on March 17, 1993, alleging that the Agency discriminated against her and similarly situated females on the basis of sex (female) when it denied female SAs foreign assignments and promotions to supervisory positions. Additionally, Petitioner alleged that the Agency's actions constituted a pattern and practice of unlawful discrimination against female SAs in selections for foreign assignments and promotions to the grades 14 and above.
On April 27, 2011, after a nine-day hearing, an EEOC Administrative Judge (AJ) issued a decision, titled "Class Action Interim Hearing Decision," finding liability against the Agency. On October 7, 2011, the Agency filed a motion to decertify the class. On January 12, 2012, the AJ denied the Agency's motion and issued a report of findings and recommendations. The report included the AJ's previously issued finding of liability, and also included the recommended remedies to make Complainant whole. On March 13, 2012, the Agency issued a final decision rejecting the findings and recommendations of the AJ. Petitioner filed an appeal with the Commission.
In EEOC Appeal No. 0120122033 (Jun. 7, 2013), the Commission reversed the Agency's decision. Subsequently, the Agency filed a request for reconsideration. In EEOC Request No. 0520130561 (Aug. 12, 2014), the Commission denied the Agency's request. Among other remedies, the Agency was directed to:
[i]mmediately take meaningful and effective measures to ensure that discrimination within the Agency does not continue against female SAs who apply for foreign assignments. These measures shall include, but are not limited to, the creation and implementation of a Gender Discrimination Remedy Plan designed to eliminate the discrimination, as described above. The Agency shall monitor these measures for at least five years to ensure that its implementation has effective and tangible results. The Agency shall report these measures and results as part of its barrier analysis in its annual MD-715 report for the next five years.
PETITION FOR ENFORCEMENT CONTENTIONS
On June 29, 2015, Petitioner submitted the petition for enforcement at issue herein. Petitioner contends that the Agency is merely asking that the Commission simply trust that it has corrected the pervasive discriminatory environment proven in this case. Petitioner maintains that the Agency has taken no steps to review or modify its foreign assignment selection process since the Commission issued its final order. According to the Petitioner, there has been continued discrimination against female Special Agents - including zero assignments of female SAs to Grade 14 or Grade 15 assignments since 2012, and an Inspector General's report regarding widespread sexual harassment and misconduct among male DEA agents and managers overseas. Petitioner maintains that, during the two complete years for which the Agency presented data, females were selected at lower rates than would be expected:
- For FY 2013, while a nondiscriminatory system would anticipate nearly 11 females being selected for Grade 13 assignments, only 8 were actually selected. This is a 26.6% lower rate of selection.
- For FY 2014, while a nondiscriminatory system would anticipate 9 females being selected for Grade 13 assignments, only 6 were actually selected. This is a 34% lower rate of selection.
- For 2012-2014, there were zero females selected for Grade 14 or Grade 15 foreign assignments.
Petitioner also argues that a recent Inspector General report indicated that the Agency had a long way to go in providing a fair, discrimination-free foreign assignment program. Consequently, Petitioner requests that the Commission find that the Agency is not in compliance with our final order, and order the Agency, within thirty (30) days, to provide the following information to the Commission and to the Class:
- For the time period October 1, 1992 to the present, the identity of all applicants for any foreign assignment, including the name and sex of each applicant, the location of the foreign assignment, and the Grade level of the foreign assignment;
- For the time period October 1, 1992 to the present, the identity of all selectees for any foreign assignment, including the date on which the selection decision was made, the Grade level of the assignment given, and the location of the foreign assignment; and
- Documents establishing the information provided regarding the identity of foreign- service applicants and selectees.
Petitioner also requests that the Commission, within thirty (30) days, engage outside experts in the field of Industrial-Organizational Psychology to conduct a comprehensive review of the Agency's foreign assignment selection process. Subsequently, Petitioner requests that, within 150 days, the Agency's retained experts should provide a report to the Commission and the parties regarding whether the Agency's current foreign-service selection process is properly constructed to prevent sex discrimination against female SAs.
In response, the Agency maintains, among other things, that the Petitioner does not dispute that it has followed each of the directives of the OFO's August 12, 2014, Order in this matter. Instead, Petitioner, according to the Agency, is making unfounded criticisms against the Agency and is trying to improperly assume the role of monitor of its foreign selections.
The Agency rejected Petitioner's assertion that the statistics it provided did not establish that remediation of the discrimination against female Special Agents has taken place. With regard to Petitioner's argument that it did not provide any information about selection decisions between 1994 and 2011, the Agency stated that this assertion is baseless because it is outside the scope of the Commission's order. According to the Agency, in its August 12, 2014 Order, OFO directed the Agency to implement a Gender Discrimination Remedy Plan and monitor it "annually for at least five years after its implementation;" the required annual monitoring included Agency analysis of applicant flow data for foreign selections. The Agency asserts that it went above and beyond what the OFO required. The Agency implemented the GDR Plan in 2016, making the first annual monitoring report due with the Agency's 2016 MD-715 Report. Yet, the Agency did not wait until 2016 to provide the first applicant flow data analysis and the Agency did not limit its analysis to a single year. To demonstrate the absence of discrimination under the post-1992 foreign selection process, and to maximize the value of its analysis, the Agency maintained that it provided analysis based on available data for three years: 2012, 2013 and 2014.
The Agency also asserts that Petitioner is also incorrect in stating that it did not include all applicants for positions in its data. The Agency explains that the Best Qualified Lists (BQL) it provided included the applicant pool data for all applicants. GS-12 and -13 applicants need only be eligible by grade attained and time in grade to be included on the BQL. GS-14 and -15 applicants need only be similarly eligible and apply to be included on the list.
Finally, the Agency contends that Petitioner is wrong in stating that there is systemic discrimination against female SAs based on their statistics as there was no evidence that there were differences between male and female applicants that was statistically significant. Likewise, the Agency argues that Petitioner's argument regarding a report by the Inspector General which indicated that the Agency has a long way to go in providing a fair, discrimination-free foreign assignment program and other matters are not material.
ANALYSIS AND FINDINGS
The Commission's regulations provide that an employee may petition the Commission for enforcement of an appellate decision. 29 C.F.R. � 1614.503(a).
Upon our review of this matter, we find that Petitioner has not established that the Agency has not complied with our prior Order. The record shows that the Agency implemented the GDR Plan in 2016 and provided analysis based on the years 2012, 2013, and 2014. As the Order required five years of monitoring, the Agency, at the time this petition was filed, was still required to provide data for 2015 and 2016. There is no indication at this point that the Agency did not comply with its obligation. With regard to Petitioner's argument that the Agency should provide other types of information from 1992 through the present, and engage outside experts, we find that this is outside of the scope of the Commissions' Order. Likewise, we note that if Petitioner felt that the Commission's original Order was deficient, she could have requested reconsideration. In sum, we simply do not find that the arguments raised by Petitioner establish that the Agency has not complied with our Order.
STATEMENT OF RIGHTS - ON APPEAL
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S0610)
You have the right to file a civil action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. 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. If you file a request to reconsider and also file a civil action, 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. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant'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
_1/11/18_________________
Date
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.
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