0120161494
06-21-2016
Agustin L.,1 Complainant, v. Robert McDonald, Secretary, Department of Veterans Affairs, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Agustin L.,1
Complainant,
v.
Robert McDonald,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120161494
Agency No. 200I05482016101371
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated March 7, 2015, dismissing his complaint of unlawful employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
BACKGROUND
At the time of events giving rise to this complaint, Complainant was an applicant for a position at the Agency's Medical Center facility in West Palm Beach, Florida.
Complainant applied for a vacant EEO Specialist position with the Medical Center. He was notified that he was not selected for the position by the Agency. Complainant asserted that he was in contact with the Medical Center Director and the EEO Manager from October 25, 2015 until December 9, 2015, seeking information on why he was not selected for the position.2 He claimed that he was not given an explanation for the Agency's decision. Subsequently, Complainant filed a request under the Freedom of Information Act (FOIA) via email on December 9, 2015, which he contended he received no response.
Subsequently, on December 21, 2015, Complainant contacted an EEO counselor regarding the Agency's decision not to hire him. When the matter could not be resolved, Complainant was issued a notice of right to file his formal complaint. On January 27, 2016, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the bases of race (White), disability, and age (45) when:
1. On January 11, 2016, the Agency failed to provide pre-complaint EEO counseling.
2. On January 11, 2016, Complainant suspected Agency officials at the West Palm Beach VAMC had accessed his medical records.
3. On December 9, 2015, Complainant's request for documents through FOIA had not been responded to as of January 11, 2016.
4. Complainant was notified of his non-selection for the Equal Employment Opportunity Specialist, GS-11, Vacancy Announcement No. VIN-1417086.
The Agency dismissed the complaint as a whole. The Agency dismissed claim (1), pursuant to 29 C.F.R. � 1614.107(a)(8), as a spin-off issue. As for claim (2), the Agency noted that Complainant alleged discrimination when the Agency violated HIPPA and the Privacy Act. Therefore, the Agency dismissed claim (2), pursuant to 29 C.F.R. � 1614.107(a)(1), for failure to state a claim under the anti-discrimination laws. The Agency also dismissed claim (3), pursuant to 29 C.F.R. � 1614.107(a)(1), for failure to state a claim. The Agency indicated that in claim (3), Complainant asserted that the Agency failed to properly process his FOIA request. The Agency held that claims (2) and (3) were outside of the purview of EEOC regulations. Finally, as to claim (4), the Agency noted that Complainant became aware of the decision not to select him for the EEO Specialist position on September 24, 2015. The Agency held that Complainant should have been aware of the alleged discrimination when he was not selected for the position in question. Based on Complainant's knowledge of the EEO process, the Agency held that Complainant was aware of the 45-day time limit, but failed to make contact in a timely manner. As such the Agency dismissed claim (4) as untimely raised pursuant to 29 C.F.R. � 1614.107(a)(2).
Complainant appealed. On appeal, he asserted that he engaged in due diligence beginning on October 25, 2015 through December 9, 2015, trying to obtain the reason for management's decision not to select him. It was only after December 9, 2015, Complainant argued that he developed a "reasonable suspicion" that he had been subjected to discrimination. At that point, he made his FOIA request and, on December 21, 2015, he contacted the EEO office alleging discrimination. Complainant also argued that he was not made aware of the non-selection until October 24, 2015. As such, Complainant requested that the Commission reverse the Agency's decision dismissing his complaint.
ANALYSIS AND FINDINGS
Claim (1)
Under 29 C.F.R. � 1614.107(a)(8), an agency may dismiss a complaint that "alleges dissatisfaction with the processing of a previously filed complaint." See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at 5-26. (Aug. 5, 2015). Complaints about the processing of a complaint are to be handled by the Agency official responsible for the quality of complaint processing. See Fields v. Dep't of Health and Human Serv., EEOC Appeal No. 05910159 (Feb. 11, 1991). Upon review, we find that Complainant has alleged a claim of dissatisfaction with the EEO process and that the Agency's dismissal of this claim was appropriate.
Claims (2) and (3)
EEOC Regulation 29 C.F.R. � 1614.107(a)(1) provides, in relevant part, that an Agency shall dismiss a complaint that fails to state a claim. An Agency shall accept a complaint from any aggrieved employee or applicant for employment who believes that he or she has been discriminated against by that agency because of race, color, religion, sex, national origin, age or disabling condition. 29 C.F.R. �� 1614.103, .106(a). The Commission's federal sector case precedent has long defined an "aggrieved employee" as one who suffers a present harm or loss with respect to a term, condition, or privilege of employment for which there is a remedy. See Diaz v. Dep't of the Air Force, EEOC Request No. 05931049 (April 21, 1994)
An employee cannot use the EEO complaint process to lodge a collateral attack on another proceeding. See Wills v. Dep't of Defense, EEOC Request No. 05970596 (July 30, 1998); Kleinman v. United States Postal Serv., EEOC Request No. 05940585 (Sep. 22, 1994); Lingad v. United States Postal Serv., EEOC Request No. 05930106 (June 25, 1993).
In claim (2), Complainant asserted that the Agency violated "HIPPA"3 by accessing his medical information. To the extent that Complainant is claiming a violation of the HIPPA law, the Commission has previously determined that matters concerning HIPAA, and the Privacy Act, are not within the regulations enforced by the Commission. See Grove v. U.S. Postal Serv., EEOC Appeal No. 0120110456 (Jan. 5, 2012); Price v. U.S. Postal Serv., EEOC Appeal No. 0120111033 (Dec. 8, 2011): Scott v. U.S. Postal Serv., EEOC Appeal No. 0120101539 (Aug. 13, 2010); Cromer v. U.S. Postal Serv., EEOC Appeal No. 0120083518 (April 22, 2010). The Department of Health and Human Services' Office of Civil Rights enforces HIPAA, making the EEO complaint process the improper forum to raise a HIPAA violation. Lee v. U.S. Postal Serv., EEOC Request No. 0520110481 (Nov. 4, 2011).
In claim (3), Complainant asserted that the Agency failed to properly process his FOIA request. This Commission has previously found that processing FOIA requests is another forum's proceeding, outside the purview of the EEOC. See Hartley v. Dep't of Transp., EEOC Appeal No. 0120120014 (Aug. 1, 2013). Here, in claim (3), Complainant alleges that the Agency has failed to properly adhere to the FOIA process. The proper forum for Complainant to raise concerns regarding compliance with the FOIA process is through the Agency's FOIA office, not the EEO complaint process. Id.
Claim (4)
The regulation states that the Agency shall dismiss a complaint or a portion of a complaint that fails to comply with the applicable time limits contained in �1614.105, �1614.106 and �1614.204(c), unless the Agency extends the time limits in accordance with �1614.604(c). See 29 C.F.R. � 1614.107(a)(2).
EEOC Regulation 29 C.F.R. �1614.105(a)(1) provides that an aggrieved person must initiate contact with an EEO Counselor within 45 days of the date of the matter alleged to be discriminatory or, in the case of a personnel action, within 45 days of the effective date of the action. EEOC Regulation 29 C.F.R. �1614.105(a)(2) allows the agency or the Commission to extend the time limit if the complainant can establish that Complainant was not aware of the time limit, that Complainant did not know and reasonably should not have known that the discriminatory matter or personnel action occurred, that despite due diligence Complainant was prevented by circumstances beyond his control from contacting the EEO Counselor within the time limit, or for other reasons considered sufficient by the Agency or Commission.
Upon review of the record, Complainant clearly indicated that he was aware of the Agency's decision not to select him as early as October 24, 2015. However, Complainant failed to contact the EEO Counselor until December 21, 2015. We find that Complainant reasonably suspected he was the victim of unlawful discrimination long before he sought counseling, and that suspicion is what motivated him to file his FOIA request on December 9, 2015. The Commission has adopted a "reasonable suspicion" standard (as opposed to a "supportive facts" standard) to determine when the forty-five (45) day limitation period is triggered. See Howard v. Dep't. of the Navy, EEOC Request No. 05970852 (Feb. 11, 1999). Thus, the time limitation is not triggered until Complainant reasonably suspects discrimination, but before all the facts that support a charge of discrimination have become apparent. Here, Complainant waited past reasonable suspicion to seek counseling--instead waiting until he had tried to gather evidence through the FOIA system to support his claim. As such, we find that the Agency's dismissal of claim (4) was appropriate.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency's decision dismissing the complaint as a whole.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0416)
The Commission may, in its discretion, reconsider the decision in this case if the Complainant or the Agency submits a written request containing arguments or evidence which tend to establish 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.
Requests to reconsider, with supporting statement or brief, must be filed with the Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision or within twenty (20) calendar days of receipt of another party's timely request for reconsideration. See 29 C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9 � VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. The requests may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, the request to reconsider shall be deemed timely filed if it is received by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. � 1614.604. The request or opposition must also include proof of service on the other party.
Failure to file within the time period will result in dismissal of your request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted with your request for reconsideration. The Commission will consider requests for reconsideration filed after the deadline only in very limited circumstances. See 29 C.F.R. � 1614.604(c).
COMPLAINANT'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. 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 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
June 21, 2016
__________________
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 Complainant did not assert that he was seeking to file an EEO complaint at that time.
3 We note that "HIPPA" stands for the Health Insurance Portability and Accountability Act.
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