0420170017
11-20-2017
Yessenia H.,1 Petitioner, v. Dr. David J. Shulkin, Secretary, Department of Veterans Affairs, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Yessenia H.,1
Petitioner,
v.
Dr. David J. Shulkin,
Secretary,
Department of Veterans Affairs,
Agency.
Petition No. 0420170017
Appeal No. 0720070027
Agency No. 200NV1212003104297
DECISION ON A PETITION FOR ENFORCEMENT
On April 10, 2017, the Equal Employment Opportunity Commission (EEOC or Commission) docketed a petition for enforcement to examine the enforcement of an Order set forth in EEOC Appeal No. 0720070027 (October 13, 2015). The Commission accepts 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 order when it failed to send her a copy of its compliance report, which caused her to incur unnecessary attorney's fees and costs.
BACKGROUND
At the time of events giving rise to this complaint, Petitioner worked as a Contract Specialist, GS-1102-11 at the Agency's Consolidated Contracting Activity, VISN 21 facility in San Francisco, California. Petitioner filed a complaint in which she alleged that the Agency discriminated against her on the bases of sex (female), disability, and reprisal when:
1. she was denied a reasonable accommodation with regard to the lighting in her office, and in October 2003, when the Agency failed to relocate her to an office with appropriate lighting;
2. from April 2002 to August 2003, the Agency requested copious and excessive medical documentation to determine her disability and failed to provide her with a reasonable accommodation;
3. from March to August 2003, the Agency did not provide her information about the measurements of temperature and lighting in her office;
4. in October 2003, her supervisor did not respond to her emails; and
5. the Agency subjected her to a hostile work environment when, in October 2003, she received a telephone call that was immediately disconnected, and she was offended by an email from her second-line supervisor regarding a meeting on "women's issues."
On October 16, 2006, an EEOC Administrative Judge (AJ) issued a decision finding that the Agency discriminated against Petitioner based on disability in violation of the Rehabilitation Act. Specifically, the AJ held that the Agency did not provide Petitioner with an effective reasonable accommodation as requested by her physicians from March 2003 onwards, and that the Agency improperly disclosed her confidential medical information. The Agency appealed the AJ's decision to the Commission on the grounds that the AJ erroneously found that Complainant was an individual with a disability under the Rehabilitation Act, and that regardless it made good faith efforts to accommodate petitioner and therefore she was not entitled to any monetary relief.
In EEOC Appeal No. 0720070027, the Commission disagreed and affirmed the AJ's finding of discrimination and award of $60,000 in non-pecuniary compensatory damages, $3544.80 in pecuniary damages, $57,784 in attorney's fees, and $755.21 in costs and witness fees. Additionally, the Commission upheld the AJ's order that the Agency provide Petitioner a reasonable accommodation, and, among other things, to submit a compliance report - with a copy provided to Petitioner. The matter was assigned to a Compliance Officer and docketed as Compliance No. 0620160054 on October 15, 2015.
On April 10, 2017, Petitioner submitted the petition for enforcement at issue. Petitioner contends that the Agency failed to comply with the Commission's Order to provide her with all correspondence and submissions in connection with the compliance report, and that the Agency's failure to comply resulted in her incurring additional, unnecessary attorney's fees and costs. This aside, Petitioner also contends that the Agency's failure to provide her with a copy of the compliance report was itself "non-compliance" warranting Petitioner's filing of a petition for enforcement.
ANALYSIS AND FINDINGS
The Commission's regulations provide that an aggrieved person may petition for enforcement of a decision issued under its appellate jurisdiction. 29 C.F.R. � 1614.503(a).
The record reflects that Petitioner filed a previous Petition for Enforcement (PFE) on or around July 22, 2016 stating that the Agency failed to provide her with a reasonable accommodation, pay her interest and to provide her with a copy of its compliance report, after receiving no documentation of compliance from the Agency.
In her PFE, Petitioner raises the single issue of not being provided a copy of any of the Agency's compliance efforts or reports in this matter. The record reflects that final compliance reports were submitted on or around July 25, 2016. By letter dated March 8, 2017, OFO notified Petitioner that compliance monitoring was complete on this matter because the Agency provided all the necessary documentation sufficient to demonstrate that all ordered corrective actions were taken. The Commission subsequently determined that questions remained about whether Petitioner and her attorney received copies of the compliance activity, and reports. Petitioner's previous PFE was re-opened and docketed.
A copy of the compliance report indicates that: (1) Petitioner's previous attorney was paid $58,539.21 on February 17, 2016; (2) Petitioner was paid 65,544.80 on February 11, 2016; (3) each responsible management official completed relevant training by February 16, 2016; (4) the Agency submitted its rationale for declining to issue discipline; (5) notices were posted; and (6) several attempts were made to provide Petitioner with a reasonable accommodation. While it is clear from the record that the Agency fulfilled all its obligations regarding payments, reasonable accommodations, training and discipline, nothing in the record refutes Petitioner's contentions that the Agency did not provide her with a copy of its compliance activities and reports. We find that this failure prohibits a finding that the Agency has fully complied with its responsibilities under the previous Order.
CONCLUSION
Based upon a review of the record and the submissions of the parties, and for the foregoing reasons, the Commission GRANTS the petition for enforcement. The Commission finds that the Agency has failed to fully comply with its October 13, 2015 Order by not providing Petitioner with copies of its compliance activity. The Agency is required to comply with the Order below.
ORDER
The Agency is ORDERED to take the following remedial action, within one hundred and twenty (120) calendar days of the date this decision is issued:
Provide Petitioner and her attorney with a complete copy of the compliance record, including all reports and other documentation associated with its compliance activity about Compliance No. 0620160054. The Agency shall comply regardless of whatever actions it maintains it has previously taken in this matter.
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 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 (K0617)
Compliance with the Commission's corrective action is mandatory. The Agency shall submit its compliance report within thirty (30) calendar days of the completion of all ordered corrective action. The report shall be in the digital format required by the Commission, and submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. � 1614.403(g). The Agency's report must contain supporting documentation, and the Agency must send a copy of all submissions to the Complainant. 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.
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
_11/20/17_________________
Date
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.
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