U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Damaris M.,1 Complainant, v. Joshua Gotbaum, Director, Pension Benefit Guaranty Corporation, Agency. Petition No. 0420170007 Request No. 0520150080 Appeal No. 0720130001 Hearing No. 570-2011-00537X Agency No. PBGC-FC-019-2010 DECISION ON PETITION FOR CLARIFICATION On March 3, 2017, the Equal Employment Opportunity Commission (EEOC or Commission) docketed a petition for clarification of an Order set forth in EEOC Appeal No. 0720130001 (May 6, 2016), request for reconsideration denied, EEOC Request No. 0520150080 (May 6, 2016). The Commission accepts this petition for clarification pursuant to 29 C.F.R. § 1614.503. BACKGROUND During the period at issue, Complainant worked as an Accountant for the Agency in Washington, D.C. Complainant filed a formal complaint claiming that the Agency subjected her to harassment sufficient to create a hostile work environment on the basis of race (African American) and/or in reprisal for prior EEO activity in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. Complainant raised eleven factual allegations in support of her claim. Following the Agency's investigation into the eleven allegations, Complainant requested a hearing before an EEOC Administrative Judge (AJ). On May 8, 2012, the AJ granted the Agency's motion for summary judgment with respect to eight of the eleven allegations. The AJ set the remaining three allegations for hearing, finding there were issues of material fact and questions of credibility that needed resolution. On June 6 - 7 and 19, 2012, the AJ conducted a hearing on whether Complainant was subjected to harassment and a hostile work environment based on race, color2 and in reprisal for prior EEO activity when: 1. On April 14, 2010, Complainant's supervisor denied her request for flexiplace submitted three weeks earlier, stating she would be placed on an indefinite waiting list because the department exceeded the 50% requirement for flexiplace. Two Caucasian employees were placed on permanent flexiplace after her request. 2. On April 16, 2010, Complainant requested reconsideration of her flexiplace request during a meeting with her supervisor and "Labor Relations and Flexiplace Coordinator personnel." On May 4, 2010, Complainant learned that her supervisor would not grant her request. 3. On April 27, 2010, Complainant's supervisor denied "emergency flexiplace" she requested for April 28, 2010, because her vehicle was in the body shop and a second vehicle would not start, although a co-worker was permitted to work from home an entire week to make repairs to her home caused by a winter storm and to take care of an ex-husband who was very ill. Following the hearing, the AJ issued a bench decision dated August 14, 2012, in which he ruled in favor of the Agency with respect to allegations (1) and (2). With respect to allegation (3), however, the AJ imposed a default judgment against the Agency as a sanction based on the actions of its attorney. Essentially, the AJ found that the Agency's attorney obtained a draft partial hearing transcript following the first two days of the hearing without providing a copy to Complainant in order to obtain an unfair tactical advantage over Complainant during the remainder of the hearing. The Agency subsequently appealed the imposition of the default judgment concerning allegation (3) to this Commission. Following the Agency's appeal of the AJ's decision, the Commission affirmed the AJ's issuance of the sanction. As part of its remedial Order, the Commission required the Agency to: 3. Within 180 days of the date this decision becomes final, provide training to Person A [Complainant's supervisor named in allegation (3)] with regard to the prohibitions against discrimination under Title VII. This training shall be conducted by qualified EEO personnel. 4. Within 60 days of the date this decision becomes final, the Agency shall consider taking disciplinary action against Person A for discriminating against Complainant and any other Agency employees responsible for the discrimination perpetrated against Complainant. The Commission does not consider training to be disciplinary action. The Agency shall report its decision to the Commission and specify what, if any, action was taken. If the Agency decides not to take disciplinary action, then it shall set forth the reasons for its decision not to impose discipline. Appeal No. 0720130001 (October 9, 2014), request for reconsideration denied, Request No. 0520150080 (May 6, 2016).3 On March 2, 2017, the Agency submitted the instant petition for clarification. The Agency acknowledges that it did not exercise appropriate judgment when it obtained a draft transcript of the first two days of the hearing and has instructed its labor and employment attorneys not to take this course of action again. The Agency also states that it is not challenging liability and does not seek to circumvent the appeal process by contesting the Commission's decision. However, the Agency questions both the fairness and efficacy of implementing the part of the Order requiring the Agency to train Complainant's supervisor regarding Title VII prohibitions and to consider disciplining the supervisor. Specifically, the Agency argues that because this was a default judgment there was no finding that the supervisor actually engaged in any misconduct based upon the evidence of record. The Agency argues, instead, that the AJ imposed a default judgment on a single claim as a sanction for the procedural misstep of an Agency attorney. The Agency further argues that the AJ found that the supervisor's reading of the collective bargaining agreement's requirements as to the flexiplace program were reasonable and credible, and concluded that the Complainant failed to show that the supervisor intentionally misread the collective bargaining agreement to mask discrimination. Moreover, the Agency argues that it is unfair to punish the supervisor and potentially stain his reputation for the procedural mistake of the Agency attorney which was beyond the control of the supervisor. After further consideration of our prior Order, we agree with the Agency's position on this matter. A fair reading of the record reflects that the discrimination finding regarding allegation (3) was precipitated by the action of Agency's attorney and imposed as a sanction by the AJ. We therefore find merit in the Agency assertion that it would be inappropriate, based on the evidence of record, to impute any discriminatory action on the part of the supervisor which would merit an order of training for him, or consideration of the taking of disciplinary action. Upon review of the record, we GRANT the Agency's Petition for Clarification. The matter is REMANDED to the Agency in accordance with the clarification discussed in the ORDER below. ORDER To the extent, it has not already done so, the Agency is ORDERED to take the remedial action identified in the Commission's May 6, 2016 decision in Request No. 0520150080, regarding payment of non-pecuniary and pecuniary damages, as identified in the Order in that decision (identified as points 1 and 2). The Agency, however, is not ordered to provide training to Complainant's supervisor or to consider taking disciplinary action against him, as previously identified in points 3 and 4 of the Commission's May 6, 2016 Order. The Agency is further directed to submit a report of compliance, as provided in the statement entitled "Implementation of the Commission's Decision." The report shall include supporting documentation verifying that the corrective action has been implemented. IMPLEMENTATION OF THE COMMISSION'S DECISION (K0610) 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 submitted to the Compliance Officer, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. 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 July 14, 2017 __________________ Date 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. 2 The AJ allowed Complainant to add color as a basis of the claimed discrimination at the hearing stage. 3 It is noted that these remedial orders were beyond what was ordered by the AJ. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 0420170007 2 0420170007