Harold M.,1 Petitioner,v.Sonny Perdue, Secretary, Department of Agriculture, Agency.

Equal Employment Opportunity Commission

Jun 2, 2020

2019005542 (E.E.O.C. Jun. 2, 2020)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Harold M.,1 Petitioner, v. Sonny Perdue, Secretary, Department of Agriculture, Agency. Petition No. 2019005542 Appeal No. 0120171791 Agency No. CRSD201600557 DECISION ON A PETITION FOR ENFORCEMENT On August 29, 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. 0120171791 (November 7, 2018). The Commission accepts this petition for enforcement pursuant to 29 C.F.R. § 1614.503. Petitioner alleged that the Agency failed to comply with the Commission’s Order. BACKGROUND At the time of events giving rise to this complaint, Petitioner worked as an Information Technology Specialist, GS-2210-13 at the Agency’s Office of the Chief Information Officer facility in Fort Collins, Colorado. On June 8, 2016, Complainant filed his complaint alleging discrimination based on sex when on March 1, 2016, management disapproved his request to extend his work-related travel by one day but granted the same request to a similarly situated female colleague. 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. 2019005542 2 At the conclusion of the investigation, Complainant requested a final agency decision without a hearing. On March 21, 2017, the Agency issued its final decision finding no discrimination regarding the complaint. On April 21, 2017, Complainant appealed the Agency’s final decision to the Commission. While Complainant’s appeal was pending before the Commission, on June 29, 2017, the parties entered into a settlement agreement resolving the complaint. The settlement agreement provided, in the pertinent part, that: 3. The Agency agrees to the following provisions: a. The Agency agrees that [Complainant] is to be immediately and permanently re-assigned to the position of Project Manager, GS-13, with a duty station of 2150 Centre Ave., Fort Collins, Colorado, as a Direct Report to the Director, Enterprise Network services, [Individual A]. This re-assignment will be documented through the issuance of an SF 50. At a minimum, this re-assignment will occur within the next pay period after this agreement is signed. This re-assignment will be without prejudice and is not a save pay status action. b. The Agency agrees that [Complainant] will not now, nor in the future be re-assigned, detailed, or matrixed to any organization that is in direct or indirect supervision of [Individual B] or any of her current subordinates who many be promoted in the future upon her retirement or leaving the Agency to include [Individuals C, D, E, or F]. c. The Agency agrees that [Complainant] will receive his scheduled WIGI on July 12, 2017. 9. The Agency agrees that in the event that the Aggrieved believes that the Agency has failed to comply with the terms of this agreement, the procedures set forth at 29 C.F.R. § 1614.504 shall govern. The Aggrieved shall notify the Agency’s EEO Director, in writing, of the alleged noncompliance within 30 days of when the aggrieved knew or should have known of a breach of this agreement. Both parties concede that neither of them notified the Commission of the June 29, 2017 settlement agreement at that time or during the pendency of the prior appeal. Without having knowledge of the settlement agreement resolving the complaint, the Commission issued its appellate decision on November 7, 2018. Therein, the Commission reversed the Agency’s final decision finding no discrimination and remanded the complaint to the Agency. 2019005542 3 Specifically, the Commission Ordered the Agency: to conduct a supplemental investigation to determine whether Complainant was entitled to compensatory damages; to issue a final agency decision on compensatory damages and pay Complainant the compensatory damages determined; to provide training to the responsible management officials; and to consider taking disciplinary action against the responsible management officials. On August 29, 2019, the Agency issued its final decision denying Complainant’s request for compensatory damages. Therein, for the first time, the Agency admitted that neither of the parties notified the Commission that they entered into the settlement agreement resolving the complaint prior to the issuance of the Commission’s appellate decision. The Agency attached a copy of the June 29, 2017 settlement agreement. On October 4, 2019, Petitioner submitted the subject petition for enforcement. Petitioner argues the Agency breached the June 29, 2017 settlement agreement. Specifically, Petitioner states that the Agency failed to transfer him out of the supervision of [Individual B’s] group to [Individual A] as a direct report under the terms of the settlement agreement. As a result, Petitioner states that he was forced to apply and accept a detail to the Forest Service in July 2017. ANALYSIS AND FINDINGS EEOC Regulation 29 C.F.R. § 1614.503 provides that on behalf of the Commission, its Office of Federal Operations shall take all necessary action to ascertain whether the agency is implementing the decision of the Commission. The regulation further provides that failure to implement the Commission’s 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. In the instant case, the evidence indicates that Complainant appealed the Agency’s March 21, 2017 final decision finding he was not subjected to discrimination. While Complainant’s appeal was pending, the parties resolved the complaint by entering into a settlement agreement. 29 C.F.R. § 1614.504. However, the Commission was not informed of the existence of the June 29, 2017 settlement agreement, and subsequently issued a decision reversing the Agency’s final decision. Given the circumstances, we terminate enforcement of the Commission’s Order set forth in Appeal No. 0120171791.2 CONCLUSION Accordingly, the petition for enforcement is DENIED as the underlying complaint had been settled prior to the Commission’s decision. 2 Regarding his breach claim, Complainant is advised to inform the Agency’s EEO Director, in writing, of the alleged noncompliance of the settlement agreement and/or contact an EEO Counselor regarding any subsequent allegations of discrimination. 2019005542 4 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 June 2, 2020 Date