0420130027
05-15-2014
Petitioner v. Sally Jewell, Secretary, Department of the Interior (National Park Service), Agency.
Petitioner
v.
Sally Jewell,
Secretary,
Department of the Interior
(National Park Service),
Agency.
Petition No. 0420130027
Appeal No. 0120091468
Agency No. FNP-2007-0216
DECISION ON A PETITION FOR ENFORCEMENT
On September 11, 2013, 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. 0120091468 (August 31, 2012). Petitioner alleged that the Agency failed to fully comply with the relief ordered in the decision above. The Commission accepts this petition for enforcement pursuant to 29 C.F.R. � 1614.503.
BACKGROUND
During the relevant time period, Petitioner worked as a Supervisory Park Ranger at the Independence National Historical Park in Philadelphia, Pennsylvania. In this position, Petitioner served as District Ranger in the Protection Division and was responsible for the management, administration, and supervision of visitor protection and law enforcement.
On February 23, 2007, Petitioner filed an EEO complaint in which she alleged the following:
1. From September 2006 and continuing, the Agency subjected Petitioner to discrimination on the bases of race (African-American), sex (female), and in reprisal for prior EEO activity when someone posted derogatory written material about her in the men's locker room; co-workers and subordinates entered her office without speaking to her; and she was subjected to inappropriate comments from subordinate employees;
2. In February 2007, she was subjected to reprisal when the Agency assigned her to work the third floor, which contained the men's locker room;
3. On April 30, 2007, the Agency subjected her to discrimination on the bases of sex and race when she had to share her office with other employees; and
4. In July 2007, the Agency revoked her law enforcement commission in reprisal for her EEO activity.
The Agency dismissed claim 3 on the basis that this matter failed to state a claim. The Agency further found that claims 1 and 2 were not sufficiently severe or pervasive to state a claim of harassment. Regarding claim 4, the Agency concluded that that management provided legitimate, non-discriminatory reasons for its actions in revoking Petitioner's law enforcement commission, and Petitioner failed to prove that the reasons were pretextual.
Petitioner appealed the Agency's decision, and in a decision dated August 31, 2012, the Commission found that the Agency improperly fragmented Petitioner's complaint, which consisted of a single claim that she was subjected to various incidents of harassments. EEOC Appeal No. 0120091468. The Commission found that Petitioner proved that she was subjected to open ridicule and intimidation in the office that reflected racial animus against her, and this conduct was sufficiently severe and pervasive to create a hostile work environment. The Commission further found that the Agency failed to take prompt and appropriate corrective action to address the reported harassment of Petitioner.
Regarding the July 2007 revocation of Petitioner's law enforcement commission, we were not persuaded that the Agency suspended Petitioner's commission because of retaliatory animus, as she alleged; however, we found that the racial harassment of Petitioner was inextricably linked to the Agency's decision to revoke her law enforcement commission. We noted that management stated that Petitioner's law enforcement commission was suspended because she displayed emotional distress in the workplace, cried in the office, failed to attend some meetings, became withdrawn from her co-workers, and took significant amounts of annual and sick leave, but the Agency created the circumstances that led to Petitioner's reasonable and foreseeable emotional distress. Consequently, we concluded that the Agency could not rely on Petitioner's reasonable reaction to racial harassment as a legitimate reason for suspending her or subjecting her to the independent medical examination (IME), and that the Agency must remedy all consequences of its failure to properly respond to the racial harassment to which Petitioner was subjected, including the July 2007 suspension of her law enforcement commission and the October 2007 IME.
The Commission ordered the Agency to undertake a supplemental investigation to determine Petitioner's entitlement to compensatory damages; expunge from all files and records any documentation or reference to the July 2007 revocation of Petitioner's law enforcement commission and October 2007 IME; provide EEO training to all management officials at its Independence National Historical Park in Philadelphia; provide training to all non-management employees at Independence National Historical Park in Philadelphia; post a notice of the finding of discrimination; and consider taking appropriate disciplinary action against four responsible management officials (Operations Chief, the Chief Ranger, the Acting Chief, and the Deputy Superintendent).
The matter was assigned to a Compliance Officer and docketed as Compliance No. 0620121075 on September 4, 2012. In a petition dated December 18, 2012, Petitioner asked the Commission to enforce our orders in Appeal No. 0120091468. Specifically, petitioner alleges that the Agency failed to comply with our order directing it to rescind the revocation of Petitioner's law enforcement commission; instead, the Agency again suspended petitioner's law enforcement commission on November 19, 2012. Petitioner requested that the Commission order the Agency to comply with our decision by cancelling the suspension of her commission.
In response to the petition for enforcement, the Agency contends that it issued a final decision regarding Petitioner's entitlement to compensatory damages on August 14, 2013, which Petitioner appealed to the Commission. The Agency further maintains that it provided the ordered training to employees and management.
However, the Agency notes that, on August 6, 2012, Petitioner requested to remain on her fixed day-shift schedule as a reasonable accommodation for her medical condition, and in response, the Agency asked her to provide documentation from her physician. The Agency contends that, based on the documentation submitted by Petitioner, the Agency's Medical Review Officer determined that Petitioner is not medically qualified to perform arduous duties as a Law Enforcement Officer, which requires the suspension of her law enforcement commission while the case is reviewed by the Agency. The Agency maintains that Petitioner's law enforcement commission was suspended effective November 19, 2012, and Petitioner was temporarily placed on light duty pending further investigation, medical evaluation, and/or treatment.
Independent Medical Examination (IME) and Revocation of Law Enforcement Commission
The record reflects that, on August 6, 2012, Petitioner asked the Agency to remain in her fixed day-shift schedule as an accommodation because she had been diagnosed as having "Adjustment Disorder with Mixed and Depressed Mood." On August 24, 2012, the Chief Ranger requested that Petitioner submit specific information and evaluations from her treating physician to the Agency's Medical Standards Program Manager. In October 2012, Petitioner submitted the requested documentation from her physician to the Agency.
On November 14, 2012, the Medical Standards Program Manager submitted a memorandum to the Chief Ranger that stated that the Medical Review Officer determined that Petitioner was not medically qualified to safely perform the arduous duties of a Law Enforcement Officer because of "all the information provided with respect to chronic insomnia under treatment with medication." In a letter to Petitioner dated November 19, 2012, the Chief Ranger informed Petitioner that her law enforcement commission would be suspended effective November 19, 2012. The letter further stated that the determination that because Petitioner is not medically fit for law enforcement duty, the Chief Ranger was required to suspend Petitioner's law enforcement commission while her case was reviewed by the Agency.
In a memorandum dated November 28, 2012, the Medical Standards Program Manager notified Petitioner that "the review of [Petitioner's] fitness for duty results from [Petitioner's] treating physician dated October 2, 2012, was completed by the NPS [National Park Service] Medical Review Officer and it was determined that [Petitioner is] not medically qualified to perform arduous duties as a NPS Law Enforcement Officer." Subsequently, Petitioner requested a waiver of the Agency's Medical Standard. On March 21, 2013, Petitioner was notified that the Agency denied her request for a reasonable accommodation based on its determination that she could not safely perform the full range of functions required of a Law Enforcement Officer and supervisor. On June 17, 2013, the Agency permanently revoked Petitioner's law enforcement commission, and on June 24, 2013, offered to reassign her to the position of GS-8 Park Ranger at Independence National Historical Park. Petitioner declined the offer on July 8, 2013.
We note that the orders in our previous decision were intended to remedy the harassment to which Petitioner was subjected in 2006 and 2007, as well as the Agency's failure to promptly and effectively respond to the harassment. Therefore, our previous decision ordered the Agency to expunge from all files and records any documentation or reference to the July 2007 revocation of Petitioner's law enforcement commission and October 2007 IME.
Upon review, we note that the Agency has not provided any evidence that reflects that it removed all references to the 2007 law enforcement commission revocation and IME from Petitioner's files, such as an affidavit from a Human Resources official attesting that all files have been expunged of such references and documentation. Consequently, we find that the Agency has not complied with this aspect of our order.
Petitioner contends that the Agency has not complied with our previous order because the Agency suspended her law enforcement commission on November 19, 2012. The Agency subsequently revoked her law enforcement commission in 2013. However, the 2012 suspension and 2013 revocation of Petitioner's law enforcement commission were based on matters that occurred after the events contained in Petitioner's pertinent EEO complaint as well as our August 31, 2012, decision. Specifically, the Agency's review of Petitioner's October 2012 reasonable accommodation documentation caused the Agency to suspend and ultimately revoke her law enforcement commission. Therefore, the 2012 suspension and 2013 revocation of Petitioner's law enforcement commission are new events that were not the subject matter of our previous decision an order. As such, the Agency's actions are beyond the purview of our previous order and the instant decision. Moreover, while the Agency has a duty to provide qualified individuals with a disability with reasonable accommodation, and reassignment is the accommodation of last resort,1 this petition for enforcement is not the proper vehicle to review whether the Agency met its obligation to provide Petitioner with reasonable accommodation, or was motivated by unlawful retaliation. We note that Petitioner asserts that she has filed a new EEO complaint that alleges that she was subjected to reprisal and additional harassment when the Agency involuntarily demoted her to a lower-graded position in 2013. This allegation is intertwined with the Agency's 2012 suspension and 2013 revocation of her law enforcement commission. Hence, we find that our previous order does not preclude the Agency from suspending the Petitioner based on medical documentation she submitted in October 2012 or thereafter.
Compensatory Damages
We note that the Agency issued Petitioner a copy of its supplemental investigation regarding her entitlement to compensatory damages and issued a final decision on January 14, 2013, that addressed Petitioner's entitlement to compensatory damages. Specifically, the Agency's decision awarded Petitioner $35,425.06 in compensatory damages. Petitioner filed a pending appeal with this Commission on January 30, 2013, regarding the Agency's final decision on compensatory damages. Petitioner v. Dep't of the Interior, Appeal No. 0120131110. Consequently, we find that the Agency complied with our order directing it to investigate and make a determination on Petitioner's entitlement on compensatory damages.
Training
The record reflects that the Agency provided EEO training to 220 managers, supervisors, and non-supervisory employees at its facility at Independence National Historical Park in July and August 2013. Consequently, we find that the Agency complied with our order to provide its employees at Independence National Historical Park with EEO training.
Discipline
The Commission ordered the Agency to consider disciplining the Operations Chief, the Chief Ranger, the Acting Chief, and the Deputy Superintendent. The Agency has not provided any evidence that it has considered disciplining these Agency officials. Therefore, we find that the Agency also has not complied with this aspect of our previous order.
Notice
Our previous decision ordered the Agency to post a notice of our harassment finding in its facility at Independence National Historical Park for 60 consecutive days. The Agency has not provided any evidence that it has complied with this order. Therefore, we find that the Agency has not complied with this aspect of our order.
CONCLUSION
Accordingly, the Commission finds that the Agency has not fully complied with our previous Order set forth in EEOC Appeal No. 0120091468 and, as such, the petition for enforcement is GRANTED. The Agency must now take additional steps to achieve full compliance. Accordingly, we REMAND this matter to the Agency to comply with our orders below.
ORDER
To the extent it has not already done so, the Agency is ORDERED to undertake the following remedial actions:
1. Within thirty (30) days of the date of this decision, the Agency shall expunge from all files and records any documentation or reference to the revocation of Petitioner's law enforcement commission and October 2007 Independent Medical Examination (IME). The Agency shall not take the July 2007 revocation of Petitioner's law enforcement commission and October 2007 IME into consideration when undertaking any future employment decisions or actions.
2. Within sixty (60) days of the date of this decision, the Agency shall consider taking appropriate disciplinary action against the Operations Chief, the Chief Ranger, the Acting Chief, and the Deputy Superintendent. The Commission does not consider training to be disciplinary action. The Agency shall report its decision 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. The Agency shall post a notice of the finding of discrimination in accordance with the order entitled "Posting Order" below.
The Agency is further directed to submit a report of compliance, as provided in the statement entitled "Implementation of the Commission's Decision." The report shall include supporting documentation of the Agency's calculation of back pay and other benefits due Petitioner, including evidence that the corrective action has been implemented.
POSTING ORDER (G0610)
The Agency is ordered to post at its facility at Independence National Historical Park a copy of the attached notice. Copies of the notice, after being signed by the Agency's duly authorized representative, shall be posted by the Agency within thirty (30) calendar days of the date this decision, and shall remain posted for sixty (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 at the address cited in the paragraph entitled "Implementation of the Commission's Decision," within ten (10) calendar days of the expiration of the posting period.
ATTORNEY'S FEES (H0610)
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 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 this decision becoming final. 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 (K0610)
Compliance with the Commission's corrective action is mandatory. The Agency shall submit its compliance report within thirty (30) calendar days of the completion of all ordered corrective action. The report shall be submitted to the Compliance Officer, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. The Agency's report must contain supporting documentation, and the Agency must send a copy of all submissions to the Petitioner. 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.
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 (Z0610)
If you decide to file a civil action, and if you do not have or cannot afford the services of an attorney, you may request from the Court that the Court appoint an attorney to represent you and that the Court also permit you to file the action without payment of fees, costs, or other security. See Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.; the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c). The grant or denial of the request is within the sole discretion of the Court. Filing a request for an attorney with the Court does not extend your time in which to file a civil action. Both the request and the civil action must be filed within the time limits as stated in the paragraph above ("Right to File a Civil Action").
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
May 15, 2014
Date
1 Reassignment is the reasonable accommodation of last resort and is required only after it has been determined that: (1) there are no effective accommodations that will enable the employee to perform the essential functions of his current position; or (2) all other reasonable accommodations would impose an undue hardship. Enforcement Guidance on Reasonable Accommodation, EEOC No. 915.002 at Question 24 (Oct. 17, 2002).
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0420130027
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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