U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Sona B.,1 Complainant, v. Alejandro N. Mayorkas, Secretary, Department of Homeland Security (Transportation Security Administration), Agency. Request No. 2021004622 Appeal No. 2021000656 Hearing Nos. 541-2013-00028X; 541-2014-00019X; 541-2014-00149X; 541-2015-00128X; and 541-2016-00146X Agency Nos. HS-TSA-21627-2012; HS-TSA-00637-2013; HS-TSA-00033-2014; HS-TSA- 01188-2014; and HS-TSA-23430-2015 DECISION ON REQUEST FOR RECONSIDERATION The Agency timely requested that the Equal Employment Opportunity Commission (EEOC or Commission) reconsider its decision in EEOC Appeal No. 2021000656 (July 19, 2021). EEOC Regulations provide that the Commission may, in its discretion, grant a request to reconsider any previous Commission decision issued pursuant to 29 C.F.R. § 1614.405(a), where the requesting party demonstrates 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. See 29 C.F.R. § 1614.405(c). 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. 2021004622 2 BACKGROUND At the time of events giving rise to the underlying complaints, Complainant was employed by the Agency as an Assistant Federal Security Director-Inspections at the Denver International Airport in Denver, Colorado. From 2009 through March 2010, Complainant was on medical leave due to her breast cancer diagnosis, as well as the cancer diagnosis of her young daughter. On March 15, 2010, two weeks after the death of her child, Complainant returned to work. Immediately upon her return, Complainant was issued a counseling memo. In the month to follow, she was placed on a Performance Improvement Plan (PIP), disciplined, and demoted.2 Complainant filed a series of formal EEO complaints based on age (DOB: 1959), disability (depression and association with a disabled person), sex (female), and in reprisal for prior protected EEO activity. In her complaints, Complainant alleged that the Agency subjected her to harassment and disparate treatment regarding leave, emails from the Deputy Federal Security Director and the Federal Security Director, a proposed demotion, a non-selection, multiple letters of counseling, and other disciplinary matters. Following a three-day hearing with testimony from 10 witnesses, an EEOC Administrative Judge (EEOC AJ) issued a decision finding Complainant was subjected to harassment and disparate treatment as alleged. Specifically, the EEOC AJ concluded that the Agency’s actions were motivated by the fact that Complainant was a woman over the age of 40. Regarding disability, the EEOC AJ concluded that Complainant was subjected to harassment because of her earlier use of medical leave. With respect to reprisal, the EEOC AJ observed a strong nexus between Agency actions and Complainant's prior EEO activity. The EEOC AJ determined that Complainant was entitled to $300,000 in non-pecuniary compensatory damages and $228,089.84 in attorney's fees and costs. Additionally, Complainant was granted back pay for a Seven-Day Suspension issued in 2014, and Complainant's counsel was awarded $72.63 as a sanction for the Agency's discovery abuse. 2 On October 5, 2012, Complainant appealed the demotion to the Merit Systems Protection Board (MSPB) (Docket No. DE-0752-13-0015-I-1). In a March 2014 Initial Decision, the MSPB Administrative Judge (MSPB AJ) reversed the Agency's action, finding that the Agency did not meet its burden in showing that Complainant's performance was unacceptable in her core competencies of decision-making, communication, and supervisory skills. The MSPB AJ, however, did not find that the Agency's actions were discriminatory. On April 21, 2015, the MSPB issued a Final Order affirming the initial decision. Complainant appealed the decision to the EEOC. The Commission concurred with the MSPB's finding no discrimination regarding the reduction in pay band and pay. Faustina L. v. Dep’t of Homeland Sec., EEOC Petition No. 0320150065 (Feb. 23, 2016). 2021004622 3 The Agency issued a final order rejecting the EEOC AJ's finding of discrimination and the award of remedies. The Agency asserted that the EEOC AJ erred in “failing to give full preclusive effect to the Commission's concurrence with the MSPB's decision” regarding Complainant's March 2012 demotion and “any other intertwined issues.” Although the EEOC AJ did not provide a remedy regarding the demotion, the Agency stated that it was “nonetheless required to defend the issue, which tainted its defense of other allegations and unnecessarily increased the amount of attorney's fees…” As for the award of non-pecuniary compensatory damages, the Agency found them to be “monstrously excessive.” In EEOC Appeal No. 2021000656, the appellate decision noted that upon review of the MSPB proceeding, the sole matter before the MSPB was the demotion. The appellate decision further noted that the Commission “long ago abandoned the practice of non-appealable claims being found to be ‘inextricably intertwined’ with appealable claims.” Therefore, we rejected the Agency’s res judicata argument. As for the Agency’s challenges to the EEOC AJ’s credibility determinations and findings of discrimination, the appellate decision found them to be supported by substantial evidence. Regarding remedies, the appellate decision reduced the EEOC AJ’s award of $300,000 in non-pecuniary compensatory damages to $200,000; and determined that Complainant’s attorney was entitled to an increased prevailing hourly rate. The appellate decision declined to reduce the hours expended, and instead included the additional hours of work spent on an amended fee petition. ANALYSIS AND FINDINGS Pursuant to 29 C.F.R. §1614.107(a)(4), an agency shall dismiss a complaint where the complainant has raised the matter in an appeal to the Merit Systems Protection Board and §1614.302 indicates that the complainant has elected to pursue the non-EEO process. In accordance with 29 C.F.R. § 1614.302(b), if both an EEO complaint and a MSPB appeal are filed, then “whichever is filed first shall be considered an election to proceed in that forum.” In its request for reconsideration, the Agency largely reiterates the same contentions that were made and fully considered on appeal. Specifically, the Agency goes to great lengths to restate the arguments it previously presented regarding the applicability of res judicata. In support, the Agency argues that the Commission’s decisions in Jarrett C. v. Dep’t of Veterans Affs., EEOC Appeal No. 2020005005 (Apr. 19, 2021) and Zonia C. v. Dep’t of Veterans Affs., EEOC Appeal No. 2021001587 (Apr. 14, 2021) are analogous. We disagree. In Jarrett C., the complainant alleged that he was denied a reasonable accommodation and removed from federal service. The complainant in Jarrett C. appealed his removal to the MSPB and as a result, on appeal, it was determined that the complainant elected to use the MSPB process rather than the EEOC process noting that the reasonable accommodation issue was inextricably tied to the removal and that the MSPB had found no support for discriminatory failure to accommodate. 2021004622 4 In Jarrett C., the decision held that collateral estoppel, or issue preclusion, as well as res judicata prevented adjudicating the complainant’s case again as the issues had been fully litigated. In Zonia C., the decision found that the Agency properly dismissed the complainant’s complaint with respect to a proposed removal and denial of reasonable accommodation when the complainant had appealed the removal to the MSPB. Therein, the decision noted that the MSPB adjudicated and issued a determination on the merits of the complainant’s reasonable accommodation claim, as it was necessary to the determination of Complainant’s removal claim. A review of Jarrett C. and Zonia C. show that the MSPB fully litigated the claims at issue. Here, while the Agency asserts that the MSPB and the Commission already adjudicated Complainant’s argument that she was subjected to disparate treatment, retaliation, and harassment regarding the PIP, a Notice of Proposed Removal, and management’s actions during the pendency of the proposed demotion, we disagree. In Faustina L. v. Dep’t of Homeland Sec., EEOC Petition No. 0320150065 (Feb. 23, 2016), we stated that the issue pertained to whether the Agency subjected Complainant to discrimination when it reduced her pay band and pay, or the demotion. The MSPB AJ referenced the substance of the PIP, comparators, and incidents with management officials when determining whether the demotion was discriminatory, however, as established in the previous decision, the MSPB AJ did not fully adjudicate the PIP; and neither a PIP nor harassment is an agency action over which the MSPB typically has jurisdiction. See 5 U.S.C. 7511 et seq.; 5 C.F.R. 1201.3; Thomas v. Dep’t of the Army, EEOC Appeal No. 0120082616 (Nov. 10, 2008). Therefore, we find that the previous decision did not err when finding that the EEOC AJ was not barred by res judicata when considering the PIP and additional allegations of harassment. After reviewing the previous decision and the entire record, the Commission finds that the request fails to meet the criteria of 29 C.F.R. § 1614.405(c), and it is the decision of the Commission to DENY the request. The decision in EEOC Appeal No. 2021000656 remains the Commission's decision. There is no further right of administrative appeal on the decision of the Commission on this request. The Agency shall comply with the Order as set forth below. ORDER Within sixty (60) calendar days of the issuance of this decision, to the extent it has not already done so, the Agency shall: (1) tender to Complainant $200,000 in non-pecuniary compensatory damages; (2) tender to Complainant $255,293.93 in attorney's fees; $3,432.34 in costs; and $72.63 in reimbursement. (3) Tender to Complainant backpay for the week she was suspended in 2014; 2021004622 5 (4) Provide a minimum of eight hours of in-person or interactive EEO training, with an emphasis on harassment and reprisal, to the management officials identified in the AJ's September 30, 2020 decision. (5) Consider taking disciplinary action against DFSD-N and the other responsible management officials still employed by the Agency. If the Agency decides to take disciplinary action, it shall identify it in a compliance report the action taken. If the Agency decides not to take disciplinary action, it shall set forth in its compliance report the reason(s) for not imposing discipline. (6) Post a Notice in accordance with the statement below entitled “Posting Order”. 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). POSTING ORDER (G0617) The Agency is ordered to post at its Denver International Airport 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 (H1019) If Complainant has been represented by an attorney (as defined by 29 C.F.R. § 1614.501(e)(1)(iii)), she/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 receipt of this decision. 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 2021004622 6 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. COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (P0610) This decision of the Commission is final, and there is no further right of administrative appeal from the Commission’s decision. 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. 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. 2021004622 7 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 February 22, 2022 Date
