U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Cristobal G.,1 Petitioner, v. Ryan D. McCarthy, Secretary, Department of the Army, Agency. Petition No. 2019005948 EEOC Petition No. 2019001046 Agency No. AT315H180621I1 DECISION ON A PETITION FOR ENFORCEMENT On September 25, 2019, the Equal Employment Opportunity Commission (EEOC or Commission) docketed a petition for enforcement to examine the enforcement of an Order set forth in EEOC Petition No. 2019001046 (December 4, 2018). The Commission accepts this petition for enforcement pursuant to 29 C.F.R. § 1614.503. BACKGROUND On October 18, 2018, Petitioner filed a petition with the Equal Employment Opportunity Commission requesting review of a final decision issued by the Merit Systems Protection Board (MSPB) on her claim of discrimination involving Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. The MSPB dismissed Petitioner’s appeal for lack of jurisdiction. In EEOC Petition No. 2019001046 (Dec. 4, 2018), the Commission denied the petition because the MSPB did not address any matters within our jurisdiction. Accordingly, the Commission considered the matter a “non-mixed” case and remanded the case to the Agency to process as follows: 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. 20190059482 Petitioner is advised by operation of 29 C.F.R. § 1614.302(b) that the Agency, if it has not already done so, is required to process her allegation of discrimination. If Petitioner filed a mixed case appeal with the MSPB then the Agency, pursuant to 29 C.F.R. § 1614.105 et seq, shall notify Petitioner of the right to contact an EEO counselor within forty-five (45) days of receipt of this decision, and to file an EEO complaint, subject to 29 C.F.R § 1614.107. The date on which the Petitioner filed the appeal with the MSPB shall be deemed the date of initial contact with the EEO counselor. If, however, Petitioner filed a mixed case complaint with the Agency then the Agency, pursuant to 29 C.F.R. § 1614.108(f), shall, within 30 calendar days of its receipt of this decision, notify Petitioner of the right to elect between a hearing before an EEOC Administrative Judge or an immediate final decision on his discrimination claim pursuant to 29 C.F.R. § 1614.110. The matter was docketed for compliance monitoring as Compliance No. 2019001231 on December 17, 2018. In the approximately 15 months since that time, the Agency has failed to file the ordered report of its compliance with EEOC Petition No. 2019001046 or to respond to the related inquiries from the EEOC. ANALYSIS AND FINDINGS EEOC Regulations 29 C.F.R. § 1614.502(a) and § 1614.503 provide that relief ordered in a final EEOC decision is “mandatory and binding” on the agency. The regulations also provide that, on behalf of the Commission, its Office of Federal Operations (OFO) “shall take all necessary action to ascertain whether the agency is implementing the decision of the Commission.” Finally, the regulations provide that failure to implement EEOC orders will subject the agency to a variety of enforcement actions, including the issuance of a notice to show cause to the head of the agency, a referral to the Office of Special Counsel, and/or judicial enforcement. Here, for approximately one year, the Agency has failed to report on its compliance with the Commission’s order in EEOC Petition No. 2019001046. Moreover, the Agency has not submitted any statement of its position or explanation in response to notification of the docketing of the instant petition for enforcement. Even more concerning, the Agency’s refusal to report on its compliance with the Commission's order in this case appears to be part of a larger, ongoing pattern of similar failures. EEOC’s OFO is currently faced with multiple cases involving the Agency where it is unable to effectively fulfill its regulatory responsibility to monitor compliance with its orders because the Agency has failed to provide the required reports and/or evidence of its compliance. See EEOC Petition Nos. 2019001866, 2019004318, 2019004319, 2019004320, 2019004321, 2019004322, 2019004323, 2019004324, 2019004325, 2019004327, 2019004328, 2019004329, 2019004330, 2019004334, 2019004335, 2019004336, 2019004337, 2019004338, 2019004339, 2020002241 2020002242, 2020002245, and 2020002246. 20190059483 Based on the Agency’s failure to provide evidence of its compliance with EEOC’s order in EEOC Petition No. 2019001046, we cannot conclude that it is in compliance. The Commission directs the Agency to immediately take action consistent with the Order below. ORDER 1) Within thirty (30) calendar days of the date this decision is issued, the Agency shall provide the assigned EEOC Compliance Officer the following as ordered in EEOC Petition No. 2019001046. a. If Petitioner filed a mixed-case appeal with the MSPB, then the Agency, pursuant to 29 C.F.R. § 1614.105 et seq, shall notify Petitioner of the right to contact an EEO counselor within forty-five (45) days of receipt of this decision, and to file an EEO complaint, subject to 29 C.F.R § 1614.107. The date on which the Petitioner filed the appeal with the MSPB shall be deemed the date of initial contact with the EEO counselor. As such, the Agency shall provide the Compliance Officer: a) a copy of the Agency’s notification of her right to contact an EEO Counselor; b) a copy of the Agency’s notice of right to file a formal complaint; c) a copy of the Agency’s letter of acknowledgment to Petitioner; d) a copy of the Agency’s notice that transmitted the completed investigative file and notice of rights; and e) either a copy of the Petitioner’s request for a hearing, a copy of Petitioner’s request for a FAD, or a statement from the Agency that it did not receive a response from Petitioner by the end of the election period. If Petitioner failed to request a hearing or requested a FAD, f) the Agency shall provide a copy of the FAD. b. If, however, Petitioner filed a mixed-case complaint with the Agency , then the Agency, pursuant to 29 C.F.R. § 1614.108(f), shall, within 30 calendar days of its receipt of this decision, notify Petitioner of the right to elect between a hearing before an EEOC Administrative Judge or an immediate final decision on his discrimination claim pursuant to 29 C.F.R. § 1614.110. The Agency shall provide: a) a copy of the Agency’s notice of rights and b) either a copy of the Petitioner’s request for a hearing, a copy of Petitioner’s request for a FAD, or a statement from the Agency that it did not receive a response from Petitioner by the end of the election period. If Petitioner failed to request a hearing or requested a FAD, c) the Agency shall provide a copy of the FAD. 2) Within sixty (60) calendar days of the date this decision is issued, the Agency shall issue a written report to Director, Federal Sector Programs (FSP), Office of Federal Operations (OFO) that includes: a) An analysis of its Fiscal Year 2018 - 2019 Agency-wide EEO reporting on compliance with EEOC orders to identify problem areas in meeting regulatory reporting requirements, including timely reporting and providing adequate evidence of compliance with EEOC orders. 20190059484 b) A detailed action plan setting forth how the problems identified in its analysis will be corrected, delays ended, and compliance reporting brought in accordance with EEOC regulations. Such plan will include specific and reasonable timeframes within which to meet such goals. The Agency shall provide quarterly progress reports to FSP on the achievements of its action plan throughout the remainder of FY 2020 and shall include a report of its progress in its next MD-715 report.2 3) The Agency is further directed to submit its 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). ATTORNEY’S FEES (H1016) If Petitioner has been represented by an attorney (as defined by 29 C.F.R. § 1614.501(e)(1)(iii)), she 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 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 Petitioner and his/her representative. If the Agency does not comply with the Commission’s order, the Petitioner may petition the Commission for enforcement of the order. 29 C.F.R. § 1614.503(a). The Petitioner 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). 2 We note that we issued the same order in a number of other cases involving the Agency where similar failures to report compliance have occurred. We clarify that the Agency only needs to develop a single action plan to comply with these orders. 20190059485 Alternatively, the Petitioner 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 Petitioner 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. PETITIONER’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. 20190059486 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 August 25, 2020 Date
