01974648
02-26-1999
Barbara J. Gaines, Appellant, v. Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.
Barbara J. Gaines v. Department of Veterans Affairs
01974648
February 26, 1999
Barbara J. Gaines, )
Appellant, )
)
)
v. ) Appeal No. 01974648
) Agency No. 024L2
)
Togo D. West, Jr., )
Secretary, )
Department of Veterans Affairs, )
Agency. )
___________________________________)
DECISION
INTRODUCTION
Appellant filed an appeal with this Commission from a final decision of
the agency concerning her complaint of unlawful employment discrimination,
in violation of Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. � 2000e et seq, and the Age Discrimination in Employment Act of
1967, as amended, 29 U.S.C. � 621 et seq. The final agency decision (FAD)
was dated April 16, 1997. The appeal was postmarked May 20, 1997.<1>
Accordingly, the appeal is timely (see 29 C.F.R. �1614.402(a)), and is
accepted in accordance with EEOC Order No. 960, as amended.
ISSUE PRESENTED
The issue on appeal is whether the agency properly dismissed appellant's
complaint for failure to state a claim.
BACKGROUND
The record indicates that appellant contacted an EEO Counselor on May 6,
1996, alleging discrimination on the bases of age (51), sex (female)
and reprisal for prior EEO activity, when her supervisors isolated her
by spreading rumors that appellant had a disease that was communicable.
Appellant also claimed that this action created a harassing hostile
work environment which had become intolerable. She indicated that she
would be stigmatized by her co-workers as her illness became public
knowledge. Due to the sensitive nature of appellant's situation, she
requested that no informal counseling be conducted.
On May 24, 1996, appellant filed a formal complaint, alleging that she
was the victim of unlawful employment discrimination on the bases of
age and reprisal, when, on March 29, 1996, agency management allegedly
released confidential medical information gleaned during a Federal Bureau
of Investigation (FBI) security background check into her past employment.
Therein, appellant alleged that as a result of the discriminatory release
of confidential information, from March 29, 1996, until the date she
filed her complaint, she was subject to harassment from her co-workers
and supervisors which affected her emotional and psychological status
and created a harassing and hostile work environment.
On April 16, 1997, the agency issued a FAD dismissing appellant's
complaint pursuant to 29 C.F.R. �1614.107(a) for failure to state a claim.
Specifically, the agency stated that while appellant claimed that she
was subject to rumors being spread about her, she did not state any
tangible loss or harm with respect to a term, privilege or condition of
her employment.
On appeal, appellant raised numerous additional incidents of alleged
reprisal which occurred since she filed the subject complaint. The agency
responds that these incidents should not be considered since they have
not been discussed with an EEO Counselor and were raised for the first
time on appeal herein.
ANALYSIS AND FINDINGS
The agency dismissed appellant's complaint for failure to state a claim.
Pursuant to 29 C.F.R. � 1614.107(a), an agency shall dismiss a complaint
that fails to state a claim. In order to state a claim, a complainant
must demonstrate that he is "aggrieved." See Hobson v. Department of
the Navy, EEOC Request No. 05891133 (March 2, 1990). 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. Diaz v. Department
of the Air Force, EEOC Request No. 05931049 (Apr. 21, 1994).
Appellant alleges that the agency uncovered confidential information
regarding an illness during an FBI security background check of her
former employment. <2> She asserts that her supervisors' discriminatory
disclosure of this information to her co-workers, created a hostile work
environment for her.
The agency, in its FAD, stated that appellant failed to allege that any
personnel action or other job-related action had been taken against her
by management. The Commission finds, however, that appellant's allegation
that the agency released confidential information does constitute an
allegation regarding a personnel or job-related action in that the
information was allegedly obtained in the course of a personnel related
background check and was allegedly improperly released by agency officials
to individuals with whom appellant was required to work. Appellant asserts
that this action negatively affected her to the point where she was
ostracized and subjected to a hostile work environment by her coworkers
treatment of her. Thus, we find that the agency's alleged discriminatory
release of confidential information, states a claim within the purview
of the regulations enforced by the Commission.<3>
CONCLUSION
Accordingly, the agency's decision to dismiss appellant's complaint for
failure to state a claim was improper and is REVERSED. The complaint
is REMANDED to the agency for further processing in accordance with this
decision and applicable regulations.
ORDER (E1092)
The agency is ORDERED to process the remanded allegation in accordance
with 29 C.F.R. �1614.108. The agency shall acknowledge to the appellant
that it has received the remanded allegations within thirty (30) calendar
days of the date this decision becomes final. The agency shall issue to
appellant a copy of the investigative file and also shall notify appellant
of the appropriate rights within one hundred fifty (150) calendar days
of the date this decision becomes final, unless the matter is otherwise
resolved prior to that time. If the appellant requests a final decision
without a hearing, the agency shall issue a final decision within sixty
(60) days of receipt of appellant's request.
A copy of the agency's letter of acknowledgment to appellant and a copy
of the notice that transmits the investigative file and notice of rights
must be sent to the Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0595)
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 19848,
Washington, D.C. 20036. The agency's report must contain supporting
documentation, and the agency must send a copy of all submissions to
the appellant. If the agency does not comply with the Commission's
order, the appellant may petition the Commission for enforcement of
the order. 29 C.F.R. �1614.503(a). The appellant 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. �� 1614.408, 1614.409, and 1614.503 (g). Alternatively,
the appellant 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. �� 1614.408 and 1614.409. 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)(Supp. V 1993).
If the appellant files a civil action, the administrative processing of
the complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. �1614.410.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and be submitted to the Director, Office of
Federal Operations, Equal Employment Opportunity Commission, P.O. Box
19848, Washington, D.C. 20036. In the absence of a legible postmark,
the request to reconsider shall be deemed filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION (R0993)
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. It is the position of the Commission that 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. You should be aware, however, that courts in some
jurisdictions have interpreted the Civil Rights Act of 1991 in a manner
suggesting that a civil action must be filed WITHIN THIRTY (30) CALENDAR
DAYS from the date that you receive this decision. To ensure that your
civil action is considered timely, you are advised to file it WITHIN
THIRTY (30) CALENDAR DAYS from the date that you receive this decision
or to consult an attorney concerning the applicable time period in the
jurisdiction in which your action would be filed. 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 (Z1092)
If you decide to file a civil action, and if you do not have or cannot
afford the services of an attorney, you may request that the Court appoint
an attorney to represent you and that the Court permit you to file the
action without payment of fees, costs, or other security. See Title VII
of the Civil Rights Act of 1964, as amended, 42 U.S.C. �2000e et seq.;
the Rehabilitation Act of 1973, as amended, 29 U.S.C. ��791, 794(c).
The grant or denial of the request is within the sole discretion of
the Court. Filing a request for an attorney does not extend your time
in which to file a civil action. Both the request and the civil action
must be filed within the time limits as stated in the paragraph above
("Right to File A Civil Action").
FOR THE COMMISSION:
Feb 26, 1999
DATE Frances M. Hart
Executive Officer
Executive Secretariat
1The agency failed to provide evidence regarding the date on which
the FAD was received by appellant, i.e. certified mail return receipt.
Therefore, the appeal is deemed timely by the Commission.
2Appellant is advised that, in the event that she intends to allege that
she is being subjected to a hostile environment based on a perceived
or actual disability, she should raise this basis before the agency on
remand.
3Appellant is advised that if she wishes to pursue, through the EEO
process, the additional reprisal allegations she raised for the first time
on appeal, she shall initiate contact with an EEO counselor within 15 days
after she receives this decision. The Commission advises the agency that
if appellant seeks EEO counseling regarding the new allegations within
the above 15 day period, the date appellant filed the appeal statement
in which she raised these allegations with the agency shall be deemed to
be the date of the initial EEO contact, unless she previously contacted
a counselor regarding these matters, in which case the earlier date
would serve as the EEO counselor contact date. Cf. Alexander J. Qatsha
v. Dept. of the Navy, EEOC Request No. 05970201 (January 16, 1998).