Alejandrina L.,1 Petitioner,v.Michael R. Pompeo, Secretary, Department of State, Agency.

Equal Employment Opportunity Commission

Sep 30, 2019

0420180022 (E.E.O.C. Sep. 30, 2019)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Alejandrina L.,1
Petitioner,

v.

Michael R. Pompeo,
Secretary,
Department of State,
Agency.

Petition No. 0420180022

Appeal No. 0120152145

Agency No. DOS-F-0294-14

DECISION ON PETITION FOR ENFORCEMENT

On June 12, 2018, 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. 0120152145 (November 16, 2017). The Commission accepts this petition for
enforcement pursuant to 29 C.F.R. § 1614.503.

BACKGROUND

At the time of events giving rise to the complaint underlying this petition, Petitioner worked as a
Financial Management Analyst at the Agency’s Bureau of International Narcotics & Law
Enforcement Affairs, Office of Resource Management, Budget Execution Division, in
Washington, DC.

Petitioner filed a complaint in which she alleged that the Agency denied her reasonable
accommodation and discriminated against her on the bases of disability and reprisal for prior
protected EEO activity under Section 501 of the Rehabilitation Act of 1973, 29 U.S.C. § 791 et
seq., when management altered her work commitments to include requirements that are not
required of other similarly situated Financial Management Analysts. Petitioner appealed the
Agency’s final decision to the Commission, and in Appeal No. 0120152145, the Commission

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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found that Petitioner had established that she was denied a reasonable accommodation for her
disability. The Commission also found that the Agency took actions against Petitioner in reprisal
for Petitioner's request for reasonable accommodation.

The Commission’s Order specified that the Agency must perform the following actions within
120 days from the date of issuance: 1) provide Petitioner with the option to telework two days
per week; 2) train the responsible management officials; 3) conduct a supplemental investigation
and issue a decision on compensatory damages; 4) award Petitioner back pay for the days she
could not work due to the denial of accommodation; 5) restore any leave Petitioner was required
to take as a result of being denied accommodation; 6) consider taking disciplinary action against
the responsible management officials; and 7) comply with the Commission’s Posting Order.

The matter was assigned to a Compliance Officer and docketed as Compliance No. 0620180109
on November 17, 2017. On March 19, 2018, Petitioner, through her attorney, submitted the
petition for enforcement at issue. Therein, Petitioner asserted that the Agency failed to
communicate with her regarding the Commission’s Order with respect to any of the ordered
remedial corrective actions noted above. Petitioner contended that she exhausted all efforts to
amicably resolve this matter, which included writing to the Agency seeking its cooperation.

On March 28, 2018, the Agency issued a final decision on Petitioner’s entitlement to
compensatory damages. On April 28, 2018, Petitioner filed an appeal with the Commission
concerning the Agency’s supplemental investigation and final agency decision on the
compensatory-damages issue. Petitioner’s appeal has been docketed by the Commission as
Appeal No. 0120182077.2

On April 2, 2018, the Compliance Officer, via letter, notified the Agency that the Commission
had no record indicating whether the Agency completely implemented the Commission's
decision in Appeal No. 0120152145. The Complaince Officer specifically noted in the letter that
the decision directed the Agency to submit a Complaince Report detailing the steps it had taken
to implement the ordered actions, but it had not done so. The Compliance Officer therefore
directed the Agency to submit a Compliance Report with supporting documentation within 20
days of the date of the letter. However, the Agency did not respond to the Compliance Officer,
submit the ordered compliance report, or respond to Petitioner’s Petition for Enforcement.

Therefore, we find that the Agency is not in compliance with our previous Order in Alejandrina
L. v. Department of State, EEOC Appeal No. 0120152145. Our review of the record reflects that
the Agency has not submitted any supporting documentation showing compliance with the
Commission's corrective action, in accordance with 29 C.F.R. § 1614.108 et seq. We therefore
direct the Agency to comply with our Order below. We have reiterated the entirety of our
previous Order, including the compensatory-damages provision, to ensure that the Agency

2 If Petitioner believes that the Agency has not complied with the terms of its final decision on
compensatory damages, Petitioner should notify the Agency EEO Director. See 29 C.F.R.
§ 1614.504.
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submits a Compliance Report addressing all of the ordered relief. We caution the Agency that
failure file a Compliance Report or to 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 CFR § 1614.503(f).
ORDER
The Agency is ORDERED to take the following actions, to the extent that it has not already done
so, within sixty (60) calendar days of the date this decision is issued:
1. If Complainant still occupies the Financial Management Position, or a similar position,
provide Complainant with the option to telework two days a week. If Complainant is
occupying a different position, the Agency should engage in an interactive process with
Complainant to determine whether there is need for any reasonable accommodation.
2. Provide training to the Agency personnel responsible for the denial of reasonable
accommodation and reprisal, mainly, members of the Disability/Reasonable
Accommodation Division (DRAD) and Complainant's managers, placing special
emphasis on an employer's obligation to provide reasonable accommodation to qualified
individuals with disabilities and not to engage in reprisal.
3. Conduct a supplemental investigation on the issue of Complainant’s entitlement to
compensatory damages with respect to this complaint. Complainant will cooperate in the
Agency’s efforts to compute the amount of compensatory damages, if any, and will
provide all relevant information requested by the Agency. The Agency shall issue a final
decision on the issue of compensatory damages with appeal rights to the Commission. A
copy of the final decision must be submitted to the Compliance Officer as referenced
below.
4. Award Complainant the appropriate amount of back pay, interest, and other benefits
pursuant to 29 C.F.R. § 1614.501(c) to compensate Complainant for days she was not
able to work as a result of the denial of accommodation. Complainant shall cooperate in
the Agency's efforts to compute the amount of back pay and benefits due and shall
provide all relevant information requested by the Agency. If there is a dispute regarding
the exact amount of back pay and/or benefits, the Agency shall issue a check to the
Complainant for the undisputed amount. Complainant may petition for enforcement or
clarification of the amount in dispute. The petition for clarification or enforcement must
be filed with the Compliance Officer, at the address referenced in the statement entitled
“Implementation of the Commission's Decision.”
5. Restore or compensate Complainant for any leave that Complainant was compelled to
take as a result of the denial of reasonable accommodation, which includes compensation
for any leave without pay Complainant was compelled to take. Within twenty (20)
calendar days of the date this decision is issued, Complainant must submit to the Agency
a statement of what leave was taken as a result of the denial of accommodation and
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submit documents to substantiate that such leave was taken as a result of the denial of
accommodation.
6. The Agency shall consider taking appropriate disciplinary action against the Agency
officials involved in the discrimination, mainly the DRAD members involved in this
complaint and S2, S3 and S5. 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).
7. Post copies of the Notice discussed below at the Budget Execution Division in
Washington, DC.
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 verifying that all of the corrective action has been implemented.
POSTING ORDER (G0617)

The Agency is ordered to post at its Bureau of International Narcotics & Law Enforcement
Affairs, Office of Resource Management, Budget Execution Division facility copies of the
attached notice. Copies of the notice, after being signed by the Agency's duly authorized
representative, shall be posted both in hard copy and electronic format by the Agency within 30
calendar days of the date this decision was issued, and shall remain posted for 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 as directed in the paragraph entitled “Implementation of the Commission's
Decision,” within 10 calendar days of the expiration of the posting period. The report must be in
digital format and must be submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R.
§ 1614.403(g).

ATTORNEY'S FEES (H0610)

If Petitioner has been represented by an attorney (as defined by 29 C.F.R. § 1614.501(e) (1)(iii),
she is entitled to reasonable attorney's fees incurred in the processing of the petition for
enforcement. 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 becomes final. The Agency shall then process the claim
for attorney's fees in accordance with 29 C.F.R. § 1614.501.

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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 Complainant and his/her representative.
If the Agency does not comply with the Commission’s order, the Complainant may petition the
Commission for enforcement of the order. 29 C.F.R. § 1614.503(a). The Complainant 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 Complainant 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 Complainant 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 CFR § 1614.503(f) for enforcement by that
agency.
COMPLAINANT’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)
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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

September 30, 2019
Date