Complainant,v.Jeh Johnson, Secretary, Department of Homeland Security (Federal Emergency Management Agency), Agency.

Equal Employment Opportunity Commission

Mar 21, 2014

0120121971 (E.E.O.C. Mar. 21, 2014)

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

,
Complainant,

v.

Jeh Johnson,
Secretary,
Department of Homeland Security
(Federal Emergency Management Agency),
Agency.

Appeal No. 0120121971

Hearing No. 451-2011-00057X

Agency No. HS-09-FEMA-00096

DECISION
On March 14, 2012, Complainant submitted correspondence to the Commission alleging that
the Agency was not in compliance with its final order implementing the decision of an EEOC
Administrative Judge (AJ) finding discrimination. The Commission accepts the appeal in
accordance with 29 C.F.R. § 1614.405.

BACKGROUND
During the period at issue, Complainant worked as a Disaster Assistance Employee in the
Agency’s Housing Section in Austin, Texas. Complainant filed a formal complaint alleging
that the Agency discriminated against her on the bases of race (African-American), religion
(Hassidic Jewish), color (Black), and in reprisal for prior protected EEO activity when:

1. On February 26, 2009, she was not transferred, but was released from her Housing
Specialist Position;

2. On February 26, 2009, she learned that she would be replaced by another
employee;

3. On January 6, 2009, her manager denied her request for a [religious]
accommodation to relocate to Galveston, Texas;

4. On December 18, 2008, her manager falsely accused her of restricting employees’
bathroom privileges and removed her from her supervisory role in rental resources;
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5. Her manager continually harassed her, laughed at her, accused her of wrongdoing
or restricting access to the bathroom, and criticized her managerial skills;

6. On or about December 18, 2008, her manager disbanded her section of rental
resources into a housing section; and

7. On January 9, 2009, she received an email of a cartoon depicting a “grossly
exaggerated” African-American woman which she believed was directed to her.

At the conclusion of the investigation, the Agency provided Complainant with a copy of the
report of investigation and notice of her right to request a hearing before an EEOC
Administrative Judge (AJ). Complainant timely requested a hearing. The AJ held a hearing
on May 9, 2011 and issued a bench decision on June 9, 2011.

In the decision, the AJ initially determined that Complainant had established a prima facie case
of discrimination and reprisal. The AJ found that the Agency failed to articulate legitimate,
nondiscriminatory reasons for its actions. The AJ noted that the Agency’s requested and
approved witnesses were denied as a sanction for the Agency representative’s failure to appear
and arrange for three prehearing teleconferences. Even if the Agency’s witnesses had
appeared and testified, the AJ found that Complainant would have prevailed as she
demonstrated that the Agency’s reasons were not credible. As a result, the AJ found that
Complainant had been discriminated and retaliated against as alleged.

Turning to remedies, the AJ awarded Complainant $30,000.00 in non-pecuniary compensatory
damages. In addition, the AJ awarded Complainant back pay with interest for what she would
have been paid had she been deployed in January 2009 for 18 months to either Alvin, Texas or
to Galveston, Texas. Additionally, the AJ ordered the Agency to pay Complainant any other
monetary and non-monetary benefits she would have received. Further, the AJ ordered the
Agency to pay Complainant $26,625.00 in attorney’s fees. Finally, the AJ ordered training for
the responsible management officials and employees and for the Agency to post a notice.

On September 6, 2011, the Agency issued a final order fully implementing the AJ’s decision
and the relief ordered. On December 9, 2011, Complainant sent notice to the AJ alleging that
Agency had not complied with the AJ’s order. The Agency subsequently issued a letter of
determination on February 7, 2012.

On March 8, 2012, Complainant notified the Commission of the Agency’s alleged
noncompliance with the AJ’s order.1

1 The record indicates that Complainant did not notify the Agency EEO Director of the alleged
noncompliance prior to petitioning the Commission.
Specifically, Complainant argued that she received two
electronic fund transfers, but the Agency failed to include any accounting or statement of
compliance showing how it calculated the back pay award. In addition, Complainant alleges
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that she has not received any record of interest being paid on the compensation she received.
Finally, Complainant contends that the Agency failed to pay the lodging allowance and instead
only paid the food portion of the per diem award. Complainant requests that the Commission
order the Agency to fully comply with the AJ’s bench decision; make full payment of all
monetary benefits including interest and all per diem; and pay Complainant an additional
$5,000.00 in attorney’s fees for bringing this notice of noncompliance.

In response, the Agency maintains that it has complied with the AJ’s order. The Agency states
that on January 27, 2012, it sent Complainant and her representative a letter detailing how the
Agency implemented the remedies ordered in the AJ’s decision. Specifically, on October 21,
2011, the Agency paid Complainant a total of $87,313.00, which included $30,000.00 in
compensatory damages, $26,625.00 in attorney’s fees, and $30,688.00 in per diem allotment.
The Agency confirms that the per diem was calculated based on the Fiscal Year 2010 Meals
and Incidental Expenses rate of $56.00 per day for 548 days or 18 months. Further, on
November 29, 2011, the Agency paid Complainant $82,069.54 for back pay and interest for
the 18-month period. The Agency asserts that this calculation was based on an 80-hour pay
period schedule for a D-2 level employee. Finally, the Agency notes that the January 27, 2012
letter included documentation showing specifically when the funds were transferred and how
the back pay was calculated.

As to Complainant’s argument that it failed to include lodging costs, the Agency noted that the
per diem award only included the estimated meals and incidental expenses for the 18 months
Complainant would have been deployed. The Agency states that it did not pay lodging per
diem expenses because those are paid directly by the Agency to the hotels or other lodging
accommodations where Agency employees stay while deployed. The Agency explains that
unlike the per diem for meals and incidentals, which are directly deposited into an employee’s
checking account, expenses for lodging while deployed are paid by the Agency directly to the
employee's travel card. The Agency argues that to reimburse Complainant directly for lodging
expenses when, if she were deployed, the funds would have been applied directly to her
government-issued travel card and used to pay for hotels, would constitute a windfall.
Accordingly, the Agency contends that it has complied with the AJ’s order.

ANALYSIS AND FINDINGS
EEOC regulations provide that a final agency action that has not been the subject of an appeal
shall be binding on the parties. 29 C.F.R. § 1614.504(a). The regulations further provide that
if a complainant believes that an agency has not complied with the terms of the final decision,
that he or she shall so advise the Agency within thirty days of the date on which the
complainant knew or should have known of the non-compliance. Id

. If the complainant is not
satisfied with the Agency's response, he or she may appeal to the Commission for
determination as to whether the Agency is in compliance with the terms of its final decision.
29 C.F.R. § 1614.504(b).

0120121971

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Back Pay with Interest

Complainant claims that the Agency failed to pay interest on the back pay compensation it paid
her and failed to produce documentation showing how it calculated the payment. The Agency
states that on November 29, 2011, it paid Complainant $82,069.54 for back pay including
interest for what she would have been paid had she been deployed to Alvin or Galveston in
January 2009 for 18 months. The Agency produced documentation showing that this amount
was based on a D-2 level salary for an 80-hour pay period over the course of 18 months after
deductions for taxes and Social Security payments and including interest. The Commission
finds that the Agency has produced sufficient evidence showing that it has complied with the
AJ’s order.

Monetary Benefits – Per Diem and Lodging Allowance

Complainant argues that the Agency only paid her the meals portion of the per diem award and
failed to include the lodging allowance of the monetary benefits ordered by the AJ. The
Agency contends that Complainant is not entitled to the lodging allowance because the Agency
pays that amount directly to the hotels or lodging accommodations where employees stay while
deployed. Thus, the Agency argues that lodging allowances are not a direct monetary benefit
to Agency employees unlike the meals per diem which the Agency pays directly to employees.
The record shows that the Agency paid Complainant $30,688.00 in meals per diem expenses at
the rate of $56.00 per day for the 18-month period she would have been deployed. Further,
the record reveals that the Agency pays lodging expenses through the employee’s government-
issued travel credit card while meals are reimbursed directly to the employee. Accordingly,
the Commission finds that lodging expenses are not a direct monetary benefit to which
Complainant is entitled as ordered by the AJ. As a result, the Commission finds that the
Agency has complied with the AJ's order.

Additional Attorney’s Fees

Complainant has not succeeded on any of the issues brought on appeal. Therefore,
Complainant is not entitled to additional attorney's fees in connection with this appeal.

CONCLUSION
Based on a thorough review of the record and the contentions on appeal, the Commission
AFFIRMS the Agency’s letter of determination.

0120121971

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STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION

(M0610)
The Commission may, in its discretion, reconsider the decision in this case if the Complainant
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 or within
twenty (20) calendar days of receipt of another party’s timely request for reconsideration. See
29 C.F.R. § 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R.
Part 1614 (EEO MD-110), at 9-18 (November 9, 1999). All requests and arguments must be
submitted to the Director, Office of Federal Operations, Equal Employment Opportunity
Commission, P.O. Box 77960, Washington, DC 20013. 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 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).
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

(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
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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

Date
March 21, 2014