[Redacted], Terica W., 1 Petitioner,v.Merrick B. Garland, Attorney General, Department of Justice (Federal Bureau of Investigation), Agency.

Equal Employment Opportunity Commission

Feb 23, 2023

Appeal No. 0720160014 (E.E.O.C. Feb. 23, 2023)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Terica W.,1 Petitioner, v. Merrick B. Garland, Attorney General, Department of Justice (Federal Bureau of Investigation), Agency. Petition No. 2021003673 Appeal No. 0720160014 Request No. 0520180147 Hearing No. 570-2012-00056X Agency No. FBI201000213 DECISION ON A PETITION FOR ENFORCEMENT On June 11, 2021, the Equal Employment Opportunity Commission (EEOC or Commission) docketed a petition for enforcement to examine the enforcement of an Order set forth in EEOC Request No. 0520180147 (May 10, 2018). We accept 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 remedial orders. For the following reasons, we DENY the petition. BACKGROUND At the time of events giving rise to this complaint, Petitioner worked as a Financial Analyst, GS- 1160-12, at the Agency’s Washington Field Office in Washington, D.C. 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. 2021003673 2 Petitioner filed an EEO complaint in which she alleged that the Agency discriminated against her on the bases of race (African American), sex (female), disability (repetitive stress injuries bilateral upper extremities), and in reprisal for prior protected EEO activity under Title VII and the Rehabilitation Act when: 1. On October 28, 2009, she received a “Minimally Successful” rating on critical element 4 of her Performance Appraisal Report (PAR), which the Agency refused to change. 2. She was denied a within-grade-increase (WIGI) due to the 2009 “Minimally Successful” PAR. 3. In 2010, her supervisor questioned her about her medical condition and associated limitations on numerous occasions. 4. She did not receive a response to her request for reasonable accommodation made in September 2010. 5. In April 2010, she was required to meet unrealistic deadlines for her assignments. 6. In 2010, her work was subjected to unreasonable scrutiny. 7. On April 2, 2010, her supervisor questioned her about her restroom breaks. 8. On July 23, 2010, she was placed on a Performance Improvement Plan (PIP). 9. On October 26, 2010, she received a rating of “Unacceptable” on four critical elements of her 2010 PAR and a “Minimally Successfully” rating on the remaining three elements. 10. In November 2010, the Agency placed her on administrative leave after she failed the PIP, she was instructed to record her time and attendance in the 67Q database. 11. On March 1, 2011, she was denied a WIGI after receiving an “Unacceptable” rating on her 2010 performance appraisal report. 12. On March 11, 2011, her security clearance was suspended. 13. On March 11, 2011, she was terminated from her employment with the Agency. 14. On March 11, 2011, her supervisor told her the Agency would disclose the reason for her separation from the Agency to prospective employers. 15. On March 11, 2011, she was not permitted to take copies of her performance plan and documents related to her EEO complaint. Following an investigation into Petitioner’s allegations, Petitioner requested a hearing before an EEOC Administrative Judge (AJ) and subsequently prevailed on all claims, except claim 15. Though the Agency appealed the AJ’s decision, we ultimately issued an appellate decision dismissing the appeal due to the Agency’s failure to provide Petitioner with interim relief during the pendency of the appeal. See Terica W. v. Dep’t of Justice, EEOC Appeal No. 0720160014 (Nov. 14, 2017), req. for recon denied, EEOC Request No. 0520180147 (May 10, 2018). To remedy the findings of discrimination, we ordered the Agency to undertake the following remedial actions: 2021003673 3 a. The Agency shall reinstate [Petitioner] to her position as Financial Analyst, GS-12, or a substantially equivalent position in the Agency’s Washington Field Office, retroactive to March 11, 2011 (the effective date of her termination). b. The Agency shall determine the appropriate amount of backpay plus interest and other benefits [including lost TSP benefits, retirements contributions and the loss of within grade increases in 2009, 2010 and thereafter] due [Petitioner] to 29 C.F.R. § 1614.501 and 5 C.F.R § 550.805. [Petitioner] shall cooperate with the Agency’s efforts to compute the amount of backpay and benefits due and shall provide all relevant information requested by the Agency. If there is a dispute regarding the exact amount of backpay, the Agency shall issue a check to Petitioner for the undisputed amount within thirty (30) days of the date this Decision becomes final. [Petitioner] may contest the Agency’s backpay award in accordance with the appellate procedures outlined in the Notice of Rights that will accompany the Agency’s final order. The Agency shall identify and calculate the eligible contributions to [Petitioner’s] TSP account, including any contributions by the Agency during the relevant backpay period, together with whatever interest or earnings would have accrued and how the interest and earnings were calculated. c. The Agency will expunge its records of any and all reference to the 2009 Minimally Successful PAR, the Performance Improvement Plan, the Unsatisfactory Performance Appraisal, and the Decision to Remove and any related Agency records of actions that this decision has found to be discriminatory. The 2009 Minimally Satisfactory and 2010 Unsatisfactory Performance Appraisal shall be replaced by a Satisfactory Appraisal. d. The Agency shall pay [Petitioner] the amount of $40,000.00 in nonpecuniary compensatory damages and $7,517.53 in past pecuniary compensatory damages. e. The Agency shall pay reasonable attorney’s fees in the amount of $112,852.00 and costs in the amount of $1,710.15. f. The Agency shall require the responsible management officials to each take at least sixteen (16) hours of EEO training in the provisions of Title VII of the Civil Rights Act of 1964 and the Rehabilitation Act of 1973, specifically nondiscrimination based on race, sex, disability, the provision of reasonable accommodation, and the prohibition against retaliation for engaging in protected EEO activity. g. The Agency shall consider taking appropriate disciplinary action against the responsible management officials. The Commission does not consider training to be disciplinary action. The Agency shall report its decision to the Compliance Officer. If the Agency decides to take disciplinary action, it shall identify the action taken. If the Agency decides not to take disciplinary action, it shall set forth the reason(s) for its decision not to impose discipline. If any of the responsible management officials have 2021003673 4 left the Agency’s employ, the Agency shall furnish documentation of their departure date(s). The matter was subsequently assigned to a Compliance Officer and docketed as Compliance No. 0620180547 on May 10, 2018. On April 5, 2019, the Agency filed a compliance report, indicating that it had implemented the ordered relief. After reviewing the Agency’s compliance report, Petitioner contacted the assigned Compliance Officer through her attorney to express concerns regarding the Agency’s report. Her concerns pertained to the Agency’s failure to provide documentation on how it calculated her backpay, sick leave, and annual leave balances. Petitioner also wanted proof that the Agency had complied with the order to change her 2009 and 2010 PAR ratings to reflect satisfactory ratings and wanted the Agency to send her SF-50 personnel record to the Office of Personnel Management (OPM). From May 2019 through the end of November 2019, Petitioner’s attorney engaged in numerous communications with both the Agency and the Compliance Officer. On December 3, 2019, the Agency filed a supplemental compliance report containing additional supporting documentation to prove that it had fully addressed Petitioner’s concerns. The Agency’s supporting documentation showed that the Agency had replaced Petitioner’s minimally successful and unsatisfactory PARs with satisfactory ratings and awarded Petitioner a total of 1,068 hours in annual leave and 576 hours in sick leave. The Agency also provided proof that it had mailed a copy of Petitioner’s SF-50 to OPM. In light of this evidence, we found that the Agency complied with our remedial orders and ceased compliance monitoring on May 9, 2019. Despite our closure of the case, Petitioner continued to have concerns regarding the Agency’s compliance with our remedial orders. Through her attorney, Petitioner contacted the Agency on numerous occasions between May 6, 2019, and August 5, 2020. In her communications with the Agency, Petitioner asked the Agency to revise her SF-50 to indicate that she resigned from the Agency and did not retire. Petitioner also wanted the Agency to revise her resignation date. Petitioner’s other concerns pertained to matters, such as the annual and sick leave calculations, 2009 and 2010 PARs, life insurance coverage, Thrift Savings Plan (TSP) deposits, and backpay calculations. Though the Agency worked with Petitioner for months to address her concerns, Petitioner was not satisfied. On September 21, 2020, the Agency sent an email to Petitioner informing her that she could file a petition for enforcement to resolve any outstanding issues. Despite several months of the Agency’s and the Compliance Officer’s attempts to address Petitioner’s concerns, Petitioner ultimately filed the instant petition on May 14, 2021. 2021003673 5 ARGUMENTS IN PETITION Through her attorney, Petitioner contends that the Agency failed to fully comply with the ordered relief despite her best efforts to secure compliance. In so arguing, Petitioner raises four main points of contention for our review. First, Petitioner argues that the Agency has not complied with the ordered relief, as she has not received a Leave and Earnings Statement showing that the Agency credited her with the 576 hours of sick leave that she should have accrued as a result of her retroactive reinstatement. She contends that the Agency’s failure to issue a Leave and Earnings Statement reflecting the accrued sick leave has prevented her from ascertaining the Agency’s compliance. She is also “unsure whether OPM will require additional proof to properly calculate” her annuity. Second, Petitioner argues that the Agency is not in compliance with the ordered relief because it has not properly processed a payout of the annual leave that she had accumulated as a result of her retroactive reinstatement. In this regard, Petitioner explains that while the Agency initially calculated that she would have accumulated 1,068 hours of annual leave, the Agency later paid her for 1,274.25 hours of annual leave. She maintains that the Agency’s failure to properly calculate her annual leave has prevented her from being able to cash the check that she received from the Agency. Furthermore, Petitioner claims that she has been forced to spend significant time and money to deal with the overpayment and reiterates that the Agency’s failure to issue a Leave and Earnings Statement has prevented her from being able to ascertain the Agency’s calculations. Third, Petitioner contends the Agency failed to comply with our order to replace her 2009 and 2010 PARs with satisfactory ratings. While she acknowledges that the Agency provided documentation showing that it electronically revised her 2009 PAR to reflect a satisfactory rating, she argues that the Agency is not in compliance because the Agency did not provide any documentation regarding her 2010 PAR and did not reissue her new PARs for both 2009 and 2010. Lastly, Petitioner argues that the Agency is not in compliance with the ordered relief because it has not adjusted her life insurance to reflect increases in her salary due to her retroactive reinstatement. Petitioner maintains that she made the Agency aware on numerous occasions that her final salary had increased from $77,000 to $90,404; however, the Agency failed to make the necessary change, thereby adversely affecting her life insurance coverage, and denying her a benefit of employment. Petitioner seeks to recoup the attorney’s fees and costs that she incurred for having to file the instant petition. The Agency, however, opposes the petition and argues that it was entirely unnecessary for Petitioner to file a petition for enforcement, as the Agency had fully complied with the ordered relief and exercised diligence in responding to Petitioner’s concerns. 2021003673 6 With regard to Petitioner’s entitlement to sick leave, the Agency explains that it awarded Petitioner a total of 576 hours in sick leave for the back pay period and issued her a SF-1150 (Record of Leave Data) form detailing her leave balance. The Agency maintains that it properly forwarded the SF-1150 form to the National Finance Center (NFC) with a request to have Petitioner’s leave balance updated, and a new payroll/retirement record sent to OPM. While the Agency acknowledges that it has not yet received a response from the NFC, the Agency maintains that it has complied with our remedial order to the extent possible. Concerning Petitioner’s entitlement to annual leave, the Agency explains that while it correctly awarded Petitioner a total of 1,068 hours in annual leave, it inadvertently overpaid Petitioner an additional 206.25 hours. While the Agency acknowledges its mistake, the Agency argues that its overpayment does not indicate noncompliance, as the overpayment was in Petitioner’s favor. Furthermore, the Agency notes that the Agency’s Payroll Management Unit is seeking repayment from Petitioner to correct the overpayment. With regard to Petitioner’s 2009 and 2010 PARs, the Agency explains that in accordance with the ordered relief, it expunged all references to the 2009 Minimally Successful PAR and 2010 Unsatisfactory PAR and changed its electronic records to reflect satisfactory ratings for both years. The Agency maintains that proof of its compliance can be seen in its initial and supplemental compliance reports and emphasizes that the “[t]he OFO has never indicated that the [Agency’s] actions were insufficient or in any way failed to comply with its order.” As for Petitioner’s life insurance coverage, the Agency maintains that it issued Petitioner an updated SF-50 containing Petitioner’s final salary of $90,404 and sent the SF-50 to OPM for the purposes of calculating Petitioner’s life insurance coverage. The Agency acknowledges that OPM has not processed the requested change; however, the Agency argues that it cannot be held in noncompliance for OPM’s non-responsiveness, as the Agency has no control over OPM. Finally, the Agency argues that Petitioner is not entitled to attorney’s fees for filing a petition for enforcement because the petition was unnecessary, as the Agency has always exercised diligence in responding to Petitioner’s concerns. In so arguing, the Agency emphasizes that it “has never received notice from the OFO that its compliance efforts were afoul of the OFO order, insufficient or somehow lacking.” Furthermore, the Agency contends that while Petitioner may take issue with the length of time it has taken to work these matters through,” the Agency maintains that the delay was attributable to the pandemic and having to work with other government agencies. ANALYSIS AND FINDINGS The Commission’s regulations provide that an aggrieved person may petition the Commission for enforcement of a decision issued under the Commission's appellate jurisdiction. 29 C.F.R. § 1614.503(a). At issue is whether the Agency has fully complied with the ordered relief. 2021003673 7 We begin with Petitioner’s leave balances. Our review of the record shows that the Agency issued Petitioner a SF-1150 (Record of Leave Data) form detailing her sick leave balance and sent the form to the NFC for processing. See FBI Response to PFE - Exhibit E-H at 12. We ultimately find this evidence to be sufficient to demonstrate compliance with our remedial order. As for Petitioner’s entitlement to annual leave, we acknowledge that the Agency overpaid Petitioner an additional 206.25 hours. Id. at 3. While we understand that the Agency’s error may have caused Petitioner concern and confusion, we are disinclined to hold the Agency in noncompliance for a mistake. As Petitioner has not alleged that the Agency intentionally overpaid her to harm her, we agree with the Agency that its mistake alone is not indicative of noncompliance. Next, we turn to Petitioner’s contention regarding her 2009 and 2010 PARs. While we acknowledge that the Agency did not reissue Petitioner new PARs, the Agency has shown that it did change its electronic records to reflect satisfactory ratings for Fiscal Year 2009 and 2010. Therefore, we ultimately find the Agency’s actions to be compliant, as our remedial order never expressly directed the Agency to reissue new 2009 and 2010 PARs. FBI Response to PFE - Exhibits A & B at 4. As for Petitioner’s life insurance, we ultimately find no evidence that the Agency failed to adjust her final salary to reflect increases in her pay due to her retroactive reinstatement. Our review of the record clearly shows that the Agency issued Petitioner an updated SF-50 containing Petitioner’s final salary of $90,404 and sent the SF-50 to OPM for the purposes of calculating Petitioner’s life insurance coverage. See Supplemental Compliance Report at 26-9 (Dec. 3, 2019); see also FBI Response to PFE - Exhibit E-H at 10. We find the Agency in compliance, and we note that the Petitioner is concerned with OPM’s processes which is outside of our remedies and the Agency’s control. Given that the Agency complied with our remedial orders prior to the filing of the petition, we find that Petitioner is not a prevailing party and is not entitled to additional attorney’s fees and costs incurred in the instant matter. CONCLUSION Based on the foregoing, we find the Agency is in substantial compliance with our orders in Request No. 0520180147. Consequently, we DENY the petition for enforcement. PETITIONER’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. 2021003673 8 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 (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 Petitioner’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 23, 2023 Date