[Redacted], Natalie F., 1 Complainant,v.Christine Wormuth, Secretary, Department of the Army, Agency.

Equal Employment Opportunity Commission

Jan 26, 2023

Appeal No. 2021004065 (E.E.O.C. Jan. 26, 2023)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Natalie F.,1 Complainant, v. Christine Wormuth, Secretary, Department of the Army, Agency. Appeal No. 2021004065 Hearing Nos. 531-2019-00502X 531-2020-00085X Agency Nos. ARMEADE18AUG03332 ARMEADE17DEC04591 DECISION Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission) concerning her complaint of unlawful employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. §791 et seq. and Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq. For the following reasons, the Commission VACATES the Agency’s decision that it has complied with the Agency’s final order. BACKGROUND On February 24, 2016, Complainant was terminated from her position as an Administrative Assistant, Pay Band 3, at the Agency’s facility in Fort Meade, Maryland. Complainant was left without income from February 2016 to June 2017. On May 25, 2017, Complainant and the Agency signed a negotiated settlement agreement (NSA) providing that the termination would be expunged from Complainant’s personnel records, restoring sick leave used during the timeframe of the EEO case (June 2, 2015 - February 24, 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. 2021004065 2 2016) up to 254 hours, restoring annual leave if used in place of sick leave during the timeframe of the EEO case (June 2, 2015 - February 24, 2016) up to 150 hours, if sick leave was depleted. It also stated that Complainant would be reinstated to a Nonappropriated Fund (NAF) Pay Band 2 position at her previous rate of pay. In addition, Complainant was to be paid $1,000. Thereafter, Complainant filed a claim that the Agency breached the NSA. On January 31, 2018, the Commission issued a decision in Natalie F. v. Department of Army, EEOC Appeal No. 0120172900 (Agency No. ARMEADE15JUL02484) finding the Agency breached the NSA and ordering specific enforcement of the agreement. The decision ordered the Agency to retroactively place Complainant in the position of a NAF Administrative Assistant, Pay Band 2, at the same pay as her previous position retroactive to 30 days after the effective date (May 25, 2017) of the settlement agreement, and provide Complainant back pay for the time when she was not paid. The Commission also ordered that, if Complainant needed a reasonable accommodation, the Agency should engage in the interactive process to determine what accommodation may be necessary. On December 1, 2017, Complainant initiated EEO contact on a new EEO complaint. On January 23, 2018, Complainant filed a formal complaint alleging that the Agency subjected her to unlawful discrimination and retaliation based on her prior EEO activity. The complaint contained the following claims: A. Complainant was subjected to reprisal for prior complaints and discrimination based on disability (back injury) when: 1. On August 24, 2017, the Agency made a determination that Complainant was unsuitable for employment; 2. After May 25, 2017, and continuing, the Agency failed to rescind the removal and fully expunge Complainant’s record which caused a loss of pay and to be placed in a Leave Without Pay (LWOP) status; 3. The Agency imposed a lifting requirement as a new condition of the job offered under the terms of the agreement; 4. After the settlement was signed, the Agency subjected Complainant to a Non- appropriated Fund Instrumentality Employment Inquiry; 5. On unspecified date, a management official sent a falsified letter to Complainant’s former supervisors who were named in Complainant’s prior complaint, asking them for references, even though Complainant had not requested a reference from those two former supervisors and had not applied to work at the CDC I; 6. On an unspecified date, the Agency solicited derogatory employment references which caused Complainant to be subject to the Program Review Board (PRB) inquiry; 7. The Agency improperly relied on the PRB and the Garrison Commander’s decision of “Unsuitability,” based on the negative references it solicited for Complainant; 2021004065 3 8. The Agency subjected Complainant to the requirements of a new applicant background check, instead of recognizing Complainant as an incumbent employee by using the re-verification background check for current employees, since Complainant’s background check as a current employee was valid until the year 2020; 9. The Agency delayed placing/reassigning Complainant, claiming there was no position where Complainant could be placed that would comply with Agreement; 10. On an unspecified date, the Agency provided Complainant with only a redacted copy of the Non-appropriated Fund Instrumentality Employment Inquiry and refused to provide Complainant with a copy of the negative references that it solicited; 11. The Agency delayed placing Complainant and/or delayed addressing Complainant’s request for reasonable accommodation/ disability discrimination claim, after the Agency regarded Complainant as “disabled” (unable to lift 40 pounds); 12. The Agency caused Complainant to be without income from February 2016 to June 2017, due to its refusal to place Complainant in the position identified in the Agreement; 13. The Agency failed to provide Complainant with full monetary recovery for all lost back pay, and/or leave owed to Complainant due to the Agency’s delay in complying with the Commission’s Order of Relief; 14. The Agency refused to accept Complainant’s new claims; and 15. The Agency interfered with the EEO process. B. Complainant was subjected to reprisal based on prior EEO claim ARMEADE15JUL02484, when during the processing of a negotiated settlement agreement, she was coded “Employee asked for LWOP” for the prior February 24, 2016 through June 21, 2017. C. Complainant was subjected to disability discrimination based on disparate treatment when the Agency falsely claimed in her records that she had requested LWOP which constituted unequal application of the Agency’s policy. Following a hearing, an EEOC Administrative Judge (AJ), issued a Decision on Liability on August 18, 20202, finding the Agency unlawfully discriminated against Complainant based on her disability and prior EEO activity and was in further breach of the NSA at issue. Thereafter, the AJ held a hearing on damages and subsequently issued a Decision on Damages and Order Entering Judgment on September 30, 2020.3 2 The AJ noted the Decision on Liability was not final until an Order Entering Judgment was issued following the damages phase of the matter. 3 The AJ also issued a clarification to the Decision on Damages on October 2, 2020. 2021004065 4 To remedy the discrimination and retaliation found, the AJ ordered: payment of $9,444.45 in pecuniary damages; $120,000.00 in nonpecuniary damages; back pay for the period of February 24, 2016 through June 21, 2017, plus interest accrued on those wages to present date; payment for annual leave and sick leave during the relevant time; lost Agency retirement contributions and interest to present date; compensation for the 12% lost 401k contributions plus accrued interest to present date; and a tax offset payment for the tax year in which Complainant receives the lump sum payment for back pay and interest. On February 18, 2021, the Agency issued a final action. The Agency’s final action fully implemented the AJ’s decision. The Agency noted that regarding tax offset payment, as ordered by the AJ, Complainant must first provide the Agency with information from her tax advisor or accountant reflecting the difference in increased taxes based on the Agency’s back pay award. The final action afforded Complainant appeal rights to the Commission. Complainant did not file an appeal from the Agency’s final decision. Complainant filed the present appeal on July 8, 2021. Complainant claims the Agency is not in compliance with the relief ordered by the AJ. Complainant notes that on March 10, 2021, the Agency only complied with awarding damages and out of pocket expenses which totaled $129,444.45. She states to date, the back pay award has not been issued. She provides several emails between herself and the Agency regarding back pay and interest calculations. Complainant notes that as required by the Agency’s final action letter, she provided the necessary supporting 2020 IRS tax documentation, along with an explanation for the tax offset which estimated the new tax bracket she will fall into for the 2021 tax year, after she receives payment for the lump sum and the estimated tax offset. Complainant subsequently submitted a brief in support of her appeal which was dated August 11, 2021; however, it was uploaded to the EEOC Public Portal on August 12, 2021, shortly after midnight. In an August 12, 2021 response to Complainant’s claims of non-compliance, the Agency argues Complainant’s August 12, 2021 brief was untimely and should be rejected. With regard to the substance of Complainant’s contentions, the Agency acknowledges it has not fully performed the relief ordered in the February 2021 final action on the AJ’s September 30, 2020 decision. The Agency states it is processing payment of its calculations of back pay and has had numerous exchanges with Complainant about the tax offset and, what is required for contributions to Complainant’s 401k plan from the back pay order ANALYSIS AND FINDINGS 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 regulation provides further that if a complainant believes that the agency has not complied with the terms of the final decision, that the complainant shall notify the Agency EEO Director, in writing, within thirty days of the date on which the complainant knew or should have known of the noncompliance. 2021004065 5 29 C.F.R. § 1614.504. If Complainant does not receive a response or is not satisfied with said response, a complainant may appeal to the Commission for a determination as to whether the agency is in compliance. 29 C.F.R. § 1614.504(b). Initially, we address the Agency’s argument that Complainant’s August 12, 2021 brief was untimely filed. We note that in the Commission’s July 13, 2021 letter acknowledging her appeal, Complainant was informed that she could submit a supporting statement by August 11, 2021. Thus, we find her August 12, 2021 brief was untimely, and we decline to consider it. Even if we did consider it, however, it would not change the ultimate outcome of this decision. At the outset, we note Complainant acknowledged she received from the Agency damages and out of pocket expenses which totaled $129,444.45. Thus, we will not address those issues in our decision. Back pay and Benefits The Agency was required to pay Complainant backpay for the period of February 24, 2016 through June 21, 2017, plus interest accrued on those wages to present date. In addition, the Agency was required to pay Complainant for lost Agency retirement contributions and interest to present date. The Agency was also ordered to provide compensation for the 12% lost 401k contributions plus accrued interest to present date. Further, the Agency was required to pay Complainant for lost sick and annual leave hours during the relevant time. Finally, the Agency was also ordered to provide a tax offset payment for the tax year in which Complainant receives the lump sum payment for back pay and interest. In its response to Complainant’s appeal, the Agency states its compliance with these is ongoing. Thus, we find the Agency failed to show compliance with these provisions and the matter is remanded for further processing. CONCLUSION Accordingly, the matter is REMANDED to the Agency for further action in accordance with the Order herein. ORDER Within 60 days of the date this decision is issued, to the extent it has not already done so, the Agency shall take the following actions: 1. The Agency shall award Complainant back pay with interest, calculated in accordance with 5 C.F.R. § 550.805 and 29 C.F.R. § 1614.501 for the period of February 24, 2016, through June 21, 2017. The Agency shall also determine and include in its back pay award the amount of other benefits, i.e., sick and annual leave, Agency retirement contributions, and 401k benefits due Complainant, pursuant to 29 C.F.R §1614.501 and 5 C.F.R. §550.805(g)(1). 2021004065 6 2. The Agency shall provide Complainant a full explanation of its back pay calculations, all employment benefits, including interest. Further, the Agency shall provide a full explanation of the tax offset payment for the tax year in which Complainant receives the lump sum payment for back pay and interest. 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 C.F.R. § 1614.503(f) for enforcement by that agency. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0920) The Commission may, in its discretion, reconsider this appellate decision if Complainant or the Agency submits a written request that contains arguments or evidence that 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. 2021004065 7 Requests for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration. A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within 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). Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx. Alternatively, Complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, a complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless Complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together with the 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. 2021004065 8 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 January 26, 2023 Date