Berenice R.,1 Petitioner,v.James C. Duff, Director, Administrative Office of the U.S. Courts, Agency.

Equal Employment Opportunity Commission

Nov 30, 2017

0420170019 (E.E.O.C. Nov. 30, 2017)

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

Berenice R.,1
Petitioner,

v.

James C. Duff,
Director,
Administrative Office of the U.S. Courts,
Agency.

Petition No. 0420170019

Petition No. 0420160011

DECISION ON A PETITION FOR ENFORCEMENT

On April 19, 2017, the Equal Employment Opportunity Commission (EEOC or Commission)
docketed a petition for enforcement to examine the enforcement of an Order set forth in EEOC
Petition No. 0420160011 (February 23, 2017). The Commission accepts this petition for
enforcement pursuant to 29 C.F.R. § 1614.503. Petitioner alleged that the Agency failed to
fully comply with the Commission’s order. For the reasons that follow, the petition is
GRANTED.

ISSUES PRESENTED

The issues presented are: (1) whether the Commission has subject matter jurisdiction over
Petitioner’s complaint; (2) whether the Agency is in full compliance with the Commission’s
Order in EEOC Petition No. 0420160011; (3) whether a default judgment as a sanction against
the Agency is warranted; and (4) whether Petitioner is entitled to attorney’s fees as a prevailing
party.

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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BACKGROUND

At the time of events giving rise to this complaint, Petitioner worked as a Supervisory Program
Analyst in the Agency’s Office of Judges Program/Magistrate Judges Division in Washington,
D.C. Petitioner filed a complaint in which she alleged that the Agency discriminated against
her on the bases of race (Caucasian) and sex (female) in violation of Title VII of the Civil
Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq. and the Equal Pay Act
of 1963, as amended, 29 U.S.C. § 206(d) et seq.

On December 28, 2011, Petitioner appealed the Agency’s final decision to the Commission, 2
and in EEOC Appeal No. 0120120996 (Oct. 16, 2015), the Commission found that the Agency
failed to offer Petitioner the choice between a hearing with an EEOC Administrative Judge
(AJ) or an immediate final Agency decision in accordance with 29 C.F.R. § 1614.108(f). The
Order specified that the Agency was to provide Petitioner with a notice of her right to a
hearing pursuant to 29 C.F.R. § 1614.108(f). The matter was assigned to a Compliance
Officer and docketed as Compliance No. 0620160074 on October 21, 2015.

On January 7, 2016, Petitioner submitted a petition for enforcement, contending that the
Agency failed to comply with the Commission’s order by offering her the choice between a
hearing with an EEOC AJ and a final decision. The Agency contended that Petitioner had
been offered the choice of a hearing, as she had been offered the choice between a FAD with
appeal rights and participation in the Agency’s alternative Fair Employment Practices System
(FEPS) complaint processing system, which includes a hearing in front of a non-EEOC hearing
officer but affords participants no appeal rights.

In EEOC Petition No. 0420160011 (Feb. 23, 2017), the Commission found that Petitioner, as
a pre-Administrative Office of the U.S. Courts Personnel Act of 1990, 28 U.S.C. § 602, (Act)
employee (pre-Act employee) had the right to request a hearing in front of an EEOC AJ. We
also determined that Petitioner was a prevailing party and entitled to attorney’s fees incurred as
a result of the petition for enforcement. The Order specified that the Agency had to: (1)
provide Petitioner with a copy of the entire investigative file and a notice of her right to request
a hearing pursuant to 29 C.F.R. § 1614.108(f); and (2) pay Petitioner attorney’s fees for the
petition of enforcement.

The matter was assigned to a Compliance Officer and docketed as Compliance No.
0620170330 on February 24, 2017. On April 19, 2017, Petitioner submitted the petition for
enforcement at issue.

2 Petitioner had appealed a prior FAD issued by the Agency regarding the same EEO
complaint on January 19, 2006. In EEOC Appeal No. 0120061807 (September 23, 2010), we
vacated the Agency’s FAD and remanded the matter for a supplemental investigation and
issuance of the appropriate rights.
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CONTENTIONS ON PETITION FOR ENFORCEMENT

Petitioner’s Contentions on Petition for Enforcement

Petitioner contends that the Agency has failed to comply with the Commission’s order because
it has not provided her with notice of her right to a hearing in front of an EEOC AJ.
According to Petitioner, on March 29, 2017, the Agency issued Petitioner a letter offering her
the choice between a FAD and a FEPS hearing. The letter stated that if Petitioner elected the
FEPS process, she could appeal the Agency’s final decision to the Commission and file a
lawsuit, even though pre-Act employees who elect FEPS waive the right to use the 29 C.F.R.
Part 1614 process. Petitioner stated that she contacted the Agency to ask why she had not
received notice of her right to request a hearing in front of an EEOC AJ and that the Agency
responded that, upon the issuance of the March 29, 2017, letter, it believed that it was in
compliance with the Commission’s February 23, 2017, Order.

Petitioner requests that the Commission sanction the Agency by entering a default judgment.
Petitioner notes that the Agency has failed to comply with the Commission’s orders three
times, resulting in an 11-year delay for Petitioner. Petitioner contends that the delay has
prejudiced her and affected the integrity of the EEO process.

Agency’s Contentions on Petition for Enforcement

In response to the petition for enforcement, the Agency contends that the Commission lacks
subject matter jurisdiction because Petitioner was an excepted service employee when the
alleged discrimination took place and when she filed her EEO complaint. The Agency also
argues that the EEOC does not have the jurisdiction to interpret or enforce the Act. Therefore,
the Agency requests that the Commission deny Petitioner’s petition for enforcement for lack of
jurisdiction.

The Agency maintains that even assuming, arguendo, that the Commission has jurisdiction to
interpret the Act, the Agency’s March 29, 2017, notice of rights comports with the rights of
pre-Act employees and addresses the concerns articulated in the Commission’s order because
there is no loss of entitlement to appellate review by the EEOC if Petitioner elects a hearing
through the FEPS process, as the letter stated that she could still appeal to the EEOC.

According to the Agency, the Act does not allow Petitioner to request a hearing before an
EEOC AJ because Section 602(f) of the Act enumerates three rights that pre-Act employees
retained after the passage of the Act: (1) appeal of a reduction in grade or removal to the Merit
Systems Protection Board (MSPB); (2) appeal of an adverse action to the MSPB; and (3) an
“appeal with the Equal Employment Opportunity Commission under part 1613 of title 29 of the
Code of Federal Regulations, shall continue to be entitled to such appeal so long as the
individual remains an employee of the Administrative Office.” The Agency argues that if
Congress intended for pre-Act employees to retain additional rights, such as the right to a
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hearing before an EEOC AJ, it would have specifically listed that right. Moreover, the
Agency notes that 29 C.F.R. Part 1614 did not exist in 1990 when the Act was enacted, so
even if pre-Act employees retained all rights and remedies that existed prior to the passage of
the Act, any rights and remedies under 29 C.F.R. Part 1614 did not yet exist.

With respect to attorney’s fees, the Agency contends that the Commission lacks jurisdiction to
award attorney’s fees to a judicial branch excepted service employee. Further, the Agency
argues that Petitioner is not entitled to attorney’s fees because she is not a prevailing party, as
the Commission has not made any determination as to the merits of Petitioner’s discrimination
claims.

Petitioner’s Response to Agency’s Contentions on Petition for Enforcement

Petitioner contends that the Agency has not previously argued that the Commission lacks
subject matter jurisdiction over her EEO complaint, so she requests that the EEOC ignore this
new argument made for the first time in response to her second petition for enforcement.
Petitioner notes that the same procedure that existed under 29 C.F.R. Part 1613 now exists
under 29 C.F.R. Part 1614. Petitioner argues that she was hired in 1988 as a competitive
service employee but that she was converted to an excepted service employee on October 30,
1990, because of the passage of the Act, and she presents evidence of her competitive service
status at time of hire and her conversion to excepted service status on October 30, 1990.
According to Petitioner, no one would be able to take advantage of the grandfather clause in
the Act, as all competitive service employees were converted to excepted service upon the
passage of the Act. Petitioner notes that the Commission has interpreted other statutes such as
the Aviation and Transportation Security Act and the Airport Improvement Program
Temporary Extension Act of 1994 to determine whether the EEOC has subject matter
jurisdiction.

Petitioner contends that she was a prevailing party on her previous petition for enforcement
and therefore entitled to attorney’s fees. Petitioner notes that the Commission has previously
granted attorney’s fees for parties prevailing on a petition for enforcement where the agency
failed to comply with a prior order of the Commission.

ANALYSIS AND FINDINGS

EEOC Regulation 29 C.F.R. § 1614.503(a) provides that an aggrieved person may petition for
enforcement of an order issued by the Commission under its appellate jurisdiction. In this
case, Petitioner alleges that the Agency is not in compliance with the Commission’s order in
EEOC Petition No. 0420160011.

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Jurisdiction of the Commission

The Commission finds that it has subject matter jurisdiction over Petitioner’s complaint and the
authority to order the Agency to provide her with notice of the right to request a hearing in
front of an AJ. Our determination that we have jurisdiction over Petitioner’s EEO complaint is
in accordance with previous Commission decisions relating to Petitioner’s EEO complaint.
Petitioner filed EEOC Appeal No. 0120061807 on January 19, 2006.

Prior to the submission of its contentions on petition for enforcement, the Agency has not
challenged the Commission’s jurisdiction over Petitioner’s EEO complaint. Raising the
argument for the first time after 11 years is untimely and inappropriate. The Agency failed to
raise its jurisdictional challenge in response to one of Petitioner’s appeals or by filing a request
for reconsideration following one of our appellate decisions. Furthermore, the Commission
has previously determined that it has jurisdiction over appeals filed by pre-Act employees. In
EEOC Appeal No. 0120061807 (September 23, 2010), we first analyzed our jurisdiction over
Petitioner’s EEO complaint. We found that because Petitioner was a competitive service
employee prior to the enactment of the Act in 1990, she was a pre-Act employee and therefore
entitled to file an appeal with this Commission.

Although the Section 3(f) note for the Act does not specifically list the right to a hearing in
front of an EEOC AJ as a right preserved by the Act, the grandfather clause in Section 3(g)
states that “[n]othing in this Act shall be construed to abolish or diminish any right or remedy
granted to employees of or applicants for employment” with the Agency. Prior to the passage
of the Act, competitive service employees of the Agency had the right to request a hearing in
front of an EEOC AJ through the 29 C.F.R. Part 1613.3 The Act would certainly abolish or
diminish a right granted to pre-Act employees if, upon the enactment of the Act, pre-Act
employees could no longer request a hearing in front of an EEOC AJ because they were
converted from competitive service to excepted service. According to the Agency’s argument,
no pre-Act employees would be subject to the grandfather clause. However, Congress would
not have included a grandfather clause if it did not intend to grandfather in the rights of pre-
Act employees. Therefore, we find that pre-Act employees have the right to request a hearing
in front of an EEOC AJ.

Agency’s Failure to Comply with the Commission’s Order

After a review of the record, we find that the Agency failed to comply with our order.
Although the Agency did issue Petitioner a new notice of rights, the March 29, 2017, notice of
rights does not afford Petitioner the right to a hearing before an EEOC AJ. A FEPS hearing
with appeal rights does not comply with either the spirit or the letter of our decision and order,

3 The Agency points out that the current regulatory provisions contained in 29 C.F.R. Part
1614 were not enacted until after the 1990 enactment of the Act. However, 29 C.F.R. Part
1614 superseded 29 C.F.R. Part 1613.
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which discussed at length Petitioner’s right to a hearing before an EEOC AJ and explicitly
ordered that Petitioner be given notice of the right to request a hearing pursuant to 29 C.F.R. §
1614.108. Section 1614.108(f) states that the Agency shall notify a complainant of the “right
to request a hearing and decision from an administrative judge.” A FEPS hearing officer is
not an EEOC AJ, so the Agency’s modified notice of rights fails to comply with our order.
Moreover, the Agency has indicated that it will not pay Petitioner attorney’s fees for prevailing
on EEOC Petition No. 0420160011. Accordingly, we find that the Agency has failed to
comply with our order.

Petitioner’s Request for a Default Judgment

Petitioner, through her attorney, has requested that we sanction the Agency for its failure to
comply with our orders. Sanctions serve a dual purpose. On the one hand, they aim to deter
the underlying conduct of the non-complying party and prevent similar misconduct in the
future. Barbour v. U.S. Postal Serv. , EEOC Appeal No. 07A30133 (June 16, 2005). On the
other hand, they are corrective and provide equitable remedies to the opposing party. Given
these dual purposes, sanctions must be tailored to each situation by applying the least severe
sanction necessary to respond to a party' s failure to show good cause for its actions and to
equitably remedy the opposing party. Royal v. Dep' t of Veterans Affairs, EEOC Request No.
0520080052 (Sept. 25, 2009). Several factors are considered in “tailoring” a sanction and
determining if a particular sanction is warranted: (1) the extent and nature of the non-
compliance, and the justification presented by the non-complying party; (2) the prejudicial
effect of the non-compliance on the opposing party; (3) the consequences resulting from the
delay in justice; and (4) the effect on the integrity of the EEO process. Gray v. Dep' t of
Defense, EEOC Appeal No. 07A50030 (Mar. 1, 2007).

We note that, regarding the fourth factor, the effect on the integrity of the EEO process should
not be underestimated when tailoring a sanction. Cox v. Soc. Sec. Admin., EEOC Appeal No.
0720050055 (Dec. 24, 2009). “Protecting the integrity of the 29 C.F.R. Part 1614 process is
central to the Commission' s ability to carry out its charge of eradicating discrimination in the
federal sector.” Id. The Commission must ensure that all parties abide by its regulations and
orders.

Under the current circumstances, we do not find that the Agency’s behavior yet warrants the
imposition of a sanction at this time. However, we remind the parties that the Commission has
“the inherent power to control and prevent abuse of its orders, processes and procedure” and
“the Commission can and will impose sanctions for Agency malfeasance.” Turner v. Dep' t of
the Interior, EEOC Petition No. 04980037 (Aug. 5, 1999); see also Byrd v. Dep' t of
Agriculture, EEOC Petition No. 04980004 (Dec. 12, 1997). EEOC Regulation 29 C.F.R. §
1614.503(e) expressly authorizes the Commission to issue a notice to show cause to the head of
a federal agency regarding failure to comply with Commission' s orders. Continuing failure to
comply with an order of the Commission can also result in this case being certified to the
Office of Special Counsel for enforcement action. 29 C.F.R. §1614.503(f).
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Petitioner’s Entitlement to Attorney’s Fees

To establish entitlement to attorney' s fees, Petitioner must first show that she is a prevailing
party. CRST Van Expedited, Inc. v. E.E.O.C. , 136 S.Ct. 1642 (2016). A prevailing party for
this purpose is one who succeeds on any significant issue, and achieves some of the benefit
sought in bringing the action. Davis v. Dep’t of Transportation, EEOC Request No. 05970101
(Feb. 4, 1999) (citing Hensley v. Eckerhart, 461 U.S. 427, 433 (1983)). In the instant case,
we find that Petitioner was a prevailing party with respect to EEOC Petition No. 0420160011
and with respect to the instant petition for enforcement.

With respect to EEOC Petition No. 0420160011, we found that the Agency did not comply
with its obligation to provide Petitioner with notice of the right to a hearing pursuant to 29
C.F.R. § 1614.108. Therefore, we ordered the Agency to provide Petitioner with notice of this
right. As such, we reiterate our finding that Petitioner was a prevailing party. See Terrell v.
Dep' t of Health and Human Serv., EEOC Petition No. 04950018 (Nov. 7, 1996) (complainant
who successfully obtained compliance with a Commission order through a petition for
enforcement was entitled to be reimbursed for attorney' s fees and costs incurred in processing
the petition); see also Teal v. U.S. Postal Serv. , EEOC Petition No. 04990026 (Aug. 7, 2000)
(ordering the agency to pay attorney' s fees for a petition for enforcement and conduct a
supplemental investigation when it was unclear as to whether the agency, among other things,
complied with the Commission' s order to properly award back pay).

We also find that Petitioner is a prevailing party with respect to the instant petition for
enforcement because we are ordering the Agency to provide Petitioner with notice of the right
to request a hearing in front of an EEOC AJ as well as ordering the Agency to pay Petitioner
attorney’s fees for EEOC Petition No. 0420160011.

CONCLUSION

Based on a thorough review of the record and the contentions submitted in support or
opposition to the petition for enforcement, including those not specifically addressed herein,
the petition for enforcement is GRANTED. The Agency is directed to take action in
accordance with this decision and the ORDER below.

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ORDER

The Agency is ordered to take the following remedial actions:

1. Within thirty (30) days of the date this decision is issued, the Agency shall provide
Petitioner with a copy of the entire investigative file (both initial ROI and supplemental
investigation) and a notice of her right to a hearing in front of an EEOC AJ pursuant to
29 C.F.R. § 1614.108(f); and

2. The Agency is directed to pay Petitioner attorney’s fees for the petitions of enforcement
on which Petitioner was successful: EEOC Petition No. 0420160011 and EEOC
Petition No. 0420170019, as set forth in the below-entitled paragraph, “Attorney’s
Fees.”

The Agency is further directed to submit a report of compliance in digital format as provided
in the statement entitled "Implementation of the Commission' s Decision." The report shall be
submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g).
Further, the report must include evidence that the corrective action has been implemented.

ATTORNEY' S FEES (H1016)
If Complainant 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 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 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 (K0617)
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 in the digital format required by the Commission, and
submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). The
Agency’s report must contain supporting documentation, and the Agency must send a copy of
all submissions to the Complainant. 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.
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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.

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.

COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION-EQUAL PAY ACT (Y0408)
You are authorized under section 16(b) of the Fair Labor Standards Act (29 U.S.C. § 216(b))
to file a civil action in a court of competent jurisdiction within two years or, if the violation is
willful, three years of the date of the alleged violation of the Equal Pay Act regardless of
whether you have pursued any administrative complaint processing. The filing of the 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.

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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

November 30, 2017
Date