[Redacted], Retha W.,1 Petitioner,v.Sonny Perdue, Secretary, Department of Agriculture (Rural Development), Agency.

Equal Employment Opportunity Commission

Jan 16, 2020

Petition No. 2019005292 (E.E.O.C. Jan. 16, 2020)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Retha W.,1 Petitioner, v. Sonny Perdue, Secretary, Department of Agriculture (Rural Development), Agency. Petition No. 2019005292 Request No. 0520180501 Agency No. RD-2015-00306 DECISION ON A PETITION FOR ENFORCEMENT On August 15, 2019, the Equal Employment Opportunity Commission (EEOC or Commission) docketed a petition for enforcement (PFE) to examine the enforcement of an Order set forth in EEOC Request No. 0520180501 (September 27, 2018). The Commission accepts this petition for enforcement pursuant to 29 C.F.R. § 1614.503. Petitioner alleged that the Agency did not fully comply with the Commission's order for relief. BACKGROUND At the time of events giving rise to this complaint, Petitioner worked as a GS-12 Area Specialist within the Agency’s Rural Development (RD) department in Newnan, Georgia. On or about November 7, 2013, Petitioner and other employees informed the Acting Area Director (AAD) that the office building had black mold on the outside wall, and “other hazards.” On November 22, 2013, Petitioner’s physician diagnosed her with cellulitis of nose and acute sinusitis, with ear pain, headaches, rhinorrhea, fatigue, fever, joint swelling, sinus pain, sneezing, and a sore throat. In November and December 2013, photographs of black mold growing on the outside the office building, as well as in the attic, were sent to the State Director. 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. 2019005292 2 Petitioner also informed management that she was allergic and sensitive to the office building, and experienced watering eyes, coughing, sneezing, and headaches because of the mold outside her office window. Also, on December 11, 2013, the State Office Procurement Specialist (SOPS) received complaints from a number of other RD employees at Newnan that reported that they were experiencing cold/flu-like symptoms and were concerned for their health and safety. On December 24, 2013, the building owner retained a private company to perform mold inspection, and samples were collected. On January 9, 2014, the SOPS received a copy of the inspection report and concluded that “there should be no or minimal impact on employees,” and there was no need for an emergency evacuation. On or about January 23, 2013, Petitioner applied for fulltime telework by submitting a telework agreement. The agreement was signed by the acting Area Director but was not approved by the State Director at that time. However, on March 5, 2014, the State Director approved Petitioner for telework, and Petitioner continued on telework until the Agency moved into a new building in late August 2015. On April 1, 2015, Petitioner filed an EEO complaint in which she alleged that the Agency harassed and discriminated against her on the bases of disability (acute asthma, lung damage, mobility issue, kidney damage, and atrial fibrillation) and sex (female) when: 1. since approximately December 21, 2013, management failed to grant Petitioner’s request for reasonable accommodations, and on January 27, 2015, directed her to return to work after an extended medical absence, in a building that she believes is unsafe; and 2. since approximately December 31, 2013, management required her to work in an unsafe building and ignored repeated concerns she and several of her coworkers brought to management’s attention about the building’s safety. The Agency conducted an investigation and informed Petitioner of the right to request a hearing before an EEOC Administrative Judge or an immediate final agency decision. When Petitioner did not request a hearing within the timeframe provided in 29 C.F.R. § 1614.108(f), the Agency issued a final decision. In the final decision, the Agency found that Petitioner failed to prove that the Agency subjected her to unlawful harassment or denied her reasonable accommodation as alleged. Petitioner appealed the Agency’s final decision to this Commission, which docketed it as EEOC Appeal No. 0120161254. In EEOC Appeal No. 0120161254, the Commission found “the Agency unreasonably delayed providing Petitioner with fulltime telework” from December 11, 2013 until March 5, 2014. Conversely, the Commission found that Petitioner failed to show how other building deficiencies (e.g., broken concrete, improperly flushing toilets) related to her disclosed medical conditions. 2019005292 3 Additionally, the Commission found that Petitioner failed to show that the Agency subjected her to a hostile work environment or discrimination based on sex. EEOC reversed the final agency decision in part and remanded the issue of denial of reasonable accommodation for remedial relief. The appellate decision contained the following Order: To the extent that the Agency has not already done so, the Agency is ordered to undertake the following remedial actions: 1. Within 120 calendar days after this decision is issued, the Agency shall restore any leave (if any) taken by Petitioner because of its failure to provide her with a reasonable accommodation, reportedly from December 11, 2013, until the Agency allowed her to work telework fulltime on March 5, 2014. 2. Within 120 calendar days after this decision is issued, the Agency shall consider taking disciplinary action against the State Director. The Agency shall report its decision on discipline 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 or reasons for its decision not to impose discipline. 3. Within 120 calendar days after this decision is issued, the Agency shall provide eight hours of in-person EEO training to the State Director, AAD, and the AD, as well as all persons charged with processing and responding to reasonable accommodation requests for the Newnan office. The training shall have particular emphasis on the Agency’s obligation to provide reasonable accommodations for disabilities and to prevent retaliation. 4. The Agency shall conduct a supplemental investigation pertaining to Petitioner's entitlement to compensatory damages incurred as a result of the Agency's unlawful actions in this matter. The Agency shall issue a final decision determining Petitioner's entitlement to compensatory damages within 120 calendar days after this decision is issued. 5. The Agency shall post a notice in accordance with the paragraph below. 6. The Agency is further directed to submit a report of compliance, as provided in the statement entitled “Implementation of the Commission's Decision.” 2019005292 4 On July 26, 2018, the Agency filed a request for reconsideration, which the Commission docketed as EEOC Request No. 0520180501. In a decision dated September 27, 2018, for Request No. 0520180501, the Commission denied the Agency’s request, holding that “Appeal No. 0120161254 remains the Commission’s decision.” The reconsideration decision reiterated the prior appellate Order. On October 1, 2018, the matter was assigned to a Compliance Officer and docketed as Compliance No. 2019000019. The Agency submitted a Supplemental Compliance Report dated April 11, 2019, stating that it did not consider disciplinary action against the State Director because he retired effective January 6, 2016 and that it conducted in-person EEO training to all Rural Development Georgia employees on March 13, 2019. The Agency provided a Notification of Personnel Action for the State Director’s resignation effective January 6, 2016 and a training agenda and completed sign-in sheet for EEO training held on March 13, 2019. On August 15, 2019, Petitioner submitted the instant petition for enforcement. Petitioner contends that the Agency delayed, without notice, payment of compensatory damages and attorney’s fees, restoration of annual and sick leave used, and investigation of and issuance of a decision on Petitioner’s entitlement to compensatory damages. On the same day, August 15, 2019, the Agency issued a final decision regarding compensatory damages and attorney’s fees. On September 18, 2019, Petitioner filed an appeal of the August 15 final agency decision. The Commission docketed the appeal as EEOC Appeal No. 2020001343.2 ANALYSIS AND FINDINGS The record shows, on August 15, 2019, the Agency issued a decision regarding compensatory damages and attorney’s fees as previously ordered. That matter is no longer outstanding for failure to comply and will be determined under EEOC Appeal No. 2020001343. However, the issue of restoration of leave remains unaddressed by the Agency. Where there has been a finding of discrimination, the Petitioner is entitled to the restoration of any leave used because of the agency's discriminatory actions. Cox v. Social Security Administration, EEOC Appeal No. 0720050055 (December 24, 2009). As was the case here, the restoration of leave is properly ordered where denial of reasonable accommodation resulted in leave usage. See Lamb v. Social Security Administration, EEOC Appeal No. 0120103232 (March 21, 2012). With respect to leave restoration, we find no evidence that the Agency has complied with our Order with respect to leave restoration, and we reiterate our Order, in pertinent part, below. We also find that Petitioner is a prevailing party with respect to the instant petition and so is entitled to attorney’s fees as articulated below. 2 We note that EEOC Appeal No. 2020001343 is pending processing with the Commission and determinations on remedial relief awards for Agency No. RD-2015-00306 will be made therein. 2019005292 5 CONCLUSION Based on a thorough review of the record and the contentions in the petition for enforcement, including those not specifically addressed, Petitioner's petition is GRANTED. Petitioner's claim for the Agency to restore leave taken due to the Agency’s failure to provide reasonable accommodation is REMANDED for the Agency’s compliance. ORDER Within 120 calendar days after this decision is issued, the Agency shall restore any leave taken by Petitioner because of its failure to provide her with a reasonable accommodation, beginning from December 11, 2013, until the Agency allowed her to work telework fulltime on March 5, 2014. ATTORNEY'S FEES If Petitioner has been represented by an attorney (as defined by 29 C.F.R. § 1614.501(e)(1)(iii)), she is entitled to an award of reasonable attorney's fees incurred in the processing of this petition. 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 the date this decision was issued. 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 (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). 2019005292 6 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. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0617) The Commission may, in its discretion, reconsider the decision in this case if the Petitioner or the Agency submits a written request containing arguments or evidence which tend to establish that: 1. The appellate decision involved a clearly erroneous interpretation of material fact or law; or 2. The appellate decision will have a substantial impact on the policies, practices, or operations of the Agency. Requests to reconsider, with supporting statement or brief, must be filed with the Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. A party shall have twenty (20) calendar days of receipt of another party’s timely request for reconsideration in which to submit a brief or statement in opposition. See 29 C.F.R. § 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9 § VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. Petitioner’s request may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, the request to reconsider shall be deemed timely filed if it is received by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. The agency’s request must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). The request or opposition must also include proof of service on the other party. Failure to file within the time period will result in dismissal of your request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted with your request for reconsideration. The Commission will consider requests for reconsideration filed after the deadline only in very limited circumstances. See 29 C.F.R. § 1614.604(c). 2019005292 7 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. 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 16, 2020 Date