Herb L.,1 Complainant,v.Dr. Mark T. Esper, Secretary, Department of Defense (Defense Intelligence Agency), Agency.

Equal Employment Opportunity Commission

Sep 30, 2019

0120181829 (E.E.O.C. Sep. 30, 2019)

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

Herb L.,1
Complainant,

v.

Dr. Mark T. Esper,
Secretary,
Department of Defense
(Defense Intelligence Agency),
Agency.

Appeal No. 0120181829

Hearing No. 570-2014-00505X

Agency No. DIA-2012-00096

DECISION

Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or
Commission), pursuant to 29 C.F.R. § 1614.403(a), in which he raises the issue of noncompliance
with the Agency’s final order dated September 27, 2017. In that order, the Agency fully
implemented the decision of an EEOC Administrative Judge (AJ) finding that the Agency had
violated Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et
seq., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. §
791 et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29
U.S.C. § 621 et seq. For the following reasons, the Commission REVERSES the Agency’s
determination that it has substantially complied with the Agency’s final order, and REMANDS
this matter for further processing.

ISSUES PRESENTED

Whether Complainant’s allegation of non-compliance was raised in a timely manner; and whether
the Agency has complied with its September 27, 2017, final order.

1 This case has been randomly assigned a pseudonym which will replace Complainant’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, Complainant worked as a Deputy Comptroller,
GG-15 at the Agency’s Office of the Chief Financial Officer in Washington, D.C. On December
10, 2012, Complainant filed an EEO complaint alleging that the Agency discriminated against him
on the bases of race (Asian), disability (walks with a cane and wears prism glasses for double
vision), age (60), and reprisal for prior protected EEO activity when:

1. a. In July 2012, he was not selected for the Comptroller position;
b. On September 1, 2012, he was informed that the Acting Comptroller duties were
being removed from his performance objectives; and,
c. On September 10, 2012, he was managerially reassigned to the Chief, Internal
Controls and Financial Policy position.
2. He was subjected to a hostile work environment based on race, age, physical
disability, and retaliation with respect to numerous work place interactions.
3. He was subjected to a hostile work environment based on reprisal (current
complaint) when on April 2013, Supervisor 1 advised him via email not to be rude
or to raise his voice to his coworker as he had done earlier that day.

Following a hearing, on January 25, 2017, an EEOC Administrative Judge (AJ) issued an initial
decision in favor of Complainant finding discrimination with respect to Claim 1b, 1c, and Claim
2. Thereafter, on May 17, 2017, the AJ issued a final decision concerning the relief due to
Complainant. The AJ ordered the following relief: within ninety (90) calendar days of the date the
Agency issued its final order:

A. offer Complainant placement into a Deputy Comptroller position outside of
the DIA Office of the Chief Financial Executive. Complainant may be place
into a Deputy Comptroller position within the Department of Defense or
any component of the Department of Defense.
B. to pay Complainant $75,000 in non-pecuniary compensatory damages as
set forth in detail above.
C. provide training as set forth in detail above.
D. post a Notice regarding the finding of discrimination as set forth in detail
above (Notice attached to this Decision).
E. pay Complainant $68,927.50 in attorney’s fees.

On July 19, 2017, the Agency issued a final order indicating to Complainant that it would fully
implement the AJ’s decision. The Agency revised and reissued its final order on September 27,
2017, indicating that that it was working to comply with the AJ’s order to offer Complainant a
Deputy Comptroller position outside of the DIA Office of the Chief Financial Executive (Order
“A”), but that it was having difficulty complying, because it lacked authority to offer Complainant
a position in other DOD components.

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CONTENTIONS ON APPEAL

On appeal, Complainant contends, among other things, that his appeal should be considered timely.
Complainant maintains that the Agency provided compliance reports approximately every 60 - 90
days regarding its attempts to locate a position. As these compliance reports were informal, appeal
rights were never provided. Therefore, other than the original final order indicating that the Agency
would fully implement the AJ’s decision, additional appeal rights were never provided. Further,
Complainant asserts that the Agency’s argument that it was acting in good-faith to locate a position
is not an excuse for its failure to comply with the AJ’s order. Complainant maintains that he
provided five positions to the Agency that he was interested in, but the Agency failed to consider
these positions. Complainant requests that the Agency locate and offer him a position, and that he
is entitled to additional attorney’s fees, and monetary relief for the stress associated with this
complaint.

In response, the Agency contends that Complainant’s appeal is untimely. The Agency maintains
that it provided a compliance report on September 25, 2017. On October 25, 2017, Complainant
contacted the EEO Director and alleged that the Agency was not in compliance. The Agency
provided a response on November 29, 2017, and again on January 24, 2018. The Agency indicated
that while it had complied with provisions B through E, it had been unable to comply with
provision A because there were no positions available like the position that was ordered by the AJ.
The Agency contends that after receiving the January 24, 2018, compliance report Complainant
should have filed an appeal by February 28, 2018 but did not file until some two months later May
11, 2018. Therefore, the Agency maintains that Complainant’s appeal should be dismissed as
untimely. Further, the Agency contends that even if the appeal is found to be timely, the Agency
has done everything in its power to comply with the AJ’s order, including submitting a Motion for
Clarification to the AJ, and has acted in good faith.2

ANALYSIS AND FINDINGS

Timeliness

EOC Regulation 29 C.F.R. §1614.504(a) provides in part that: “If the complainant believes that
the agency has failed to comply with the terms of a . . . decision, the complainant shall notify the
EEO Director, in writing, of the alleged noncompliance within 30 days of when the complainant
knew or should have known of the alleged noncompliance. EEOC Regulation 29 C.F.R.
§1614.504(b) provides in part that:

2 The Agency provided several compliance reports regarding its actions to locate Complainant a
position. In its latest compliance report, dated January 24, 2018, the Agency indicated that it had
complied with provisions B through E, would continue searching for a position and indicated that
it was searching for positions on USAJOBS.

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the agency shall resolve the matter and respond to the complainant, in writing. If
the agency has not responded to the complainant, in writing, or if the complainant
is not satisfied with the agency’s attempt to resolve the matter, the complainant may
appeal to the Commission for a determination as to whether the agency has
complied with the terms of the. . . decision. The complainant may file such an
appeal 35 days after he or she has served the agency with the allegations of
noncompliance but must file an appeal within 30 days of his or her receipt of an
agency’s determination.

Based on a thorough review of the record and the contentions on appeal, including those not
specifically addressed herein, we find Complainant’s appeal is timely. The record reveals that the
Agency, in its most recent compliance report, which was dated January 24, 2018, informed
Complainant that it would continue searching for a position for him. Consequently, we do not find
that Complainant should reasonably have suspected that the Agency had issued its determination
on the matter.

Non-compliance with Final Order

EEOC Regulation 29 C.F.R. § 1614.504(a) provides that a final agency action that has not been
the subject of an appeal or a civil action shall be binding on the agency. The Agency issued a final
order indicating that it would fully implement the AJ’s decision. Consequently, the AJ’s decision
is now the Agency’s decision. The Agency could have chosen to not fully implement the AJ’s
decision and file an appeal to the EEOC, but it did not do so. We are not persuaded by the Agency’s
assertion that it needs further clarification from the AJ on this matter. The Agency’s final order
indicated that it would:

offer Complainant placement into a Deputy Comptroller position outside of the
DIA Office of the Chief Financial Executive. Complainant may be place into a
Deputy Comptroller position within the Department of Defense or any component
of the Department of Defense.

The Commission has long recognized that an agency may not be able to provide the exact position
but might be able to provide a substantially equivalent position. Moreover, we note Complainant’s
statement that he submitted several positions that he would find acceptable. Contrary to the
Agency’s assertion otherwise, its final order was not limited to a sub-component, i.e., the DIA.
The Agency agreed that Complainant could be placed “within the Department of Defense or any
component of the Department of Defense.” Accordingly, although we find that the Agency has
complied with its final order with regard to provisions B – E, we must find that it has failed to
comply with provision A.

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CONCLUSION

Accordingly, we find that the Agency has not fully complied with its September 27, 2017, final
order. This matter is REMANDED to the Agency for further processing in accordance with this
decision and the ORDER below.

ORDER

Within 120 days of the date of this decision, the Agency shall:

Offer Complainant placement into a Deputy Comptroller, or substantially equivalent, position
outside of the DIA Office of the Chief Financial Executive. Complainant may be place into a
Deputy Comptroller, or substantially equivalent, position within the Department of Defense or any
component of the Department of Defense.

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 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)),
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 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
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
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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.

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
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. 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. Complainant’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.
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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 (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 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