Nakesha T,1 Complainant,v.Robert Wilkie, Secretary, Department of Veterans Affairs, Agency.Download PDFEqual Employment Opportunity CommissionAug 2, 20192019002985 (E.E.O.C. Aug. 2, 2019) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Nakesha T,1 Complainant, v. Robert Wilkie, Secretary, Department of Veterans Affairs, Agency. Appeal No. 2019002985 Agency No. 20DR-0006-2018104105 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's final decision dated March 13, 2019, dismissing a formal 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. BACKGROUND During the period at issue, Complainant worked for the Agency as a Human Resources Officer in Washington, D.C.2 On October 25, 2018, Complainant filed a formal complaint. Complainant claimed that the Agency subjected her to discrimination in reprisal for prior protected EEO activity. In its March 13, 2019 final decision, the Agency determined that the formal complaint was comprised of the following claims: 1. On April 27, 2018, Complainant was detailed to work at VISN 5 located in Lithicum, Maryland; and 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 record reflects that Complainant is no longer employed with the Agency. 2019002985 2 2. On March 29, 2018, [a named management official] instructed a subordinate employee to access Complainant’s eOPF without Complainant’s permission. The Agency dismissed claim (1) for failure to raise the matter with an EEO Counselor and for not being like or related to a matter which was raised with an EEO Counselor. The Agency reasoned that the detail/reassignment occurred on April 27, 2018, prior to Complainant’s initial EEO contact on May 11, 2018. The Agency found that Complainant did not raise this matter during EEO Counseling. Regarding claim (2), the Agency dismissed this matter for failure to state a claim. The Agency found that Complainant’s claim that her personnel file was accessed by an Agency employee was an alleged violation of the Privacy Act. The Agency found this was a collateral attack over which the Commission does not have jurisdiction. The Agency further found that this alleged incident was not sufficiently severe or pervasive to set forth an actionable claim of harassment. Finally, regarding the basis of reprisal, the Agency found that the alleged incident is not reasonably like to deter Complainant or others from engaging in protected activity. The instant appeal followed. On appeal, Complainant asserts that the Agency’s final decision should be reversed. Complainant asserts that she did indeed raise claim (1) with an EEO Counselor and that this was the reason that she initiated EEO contact. Specifically, Complainant asserts that in the “Resolution Sought” section of the EEO Counselor’s Report it provides, in pertinent part, that she is seeking reimbursement for travel to and from VISN headquarters and restoration of sick leave taken April 27, 2018 through June 8, 2018 (which was related to her detail). Regarding claim (2), her personnel file being accessed by someone who did not have a need to know, Complainant acknowledges that the Commission does not have jurisdiction over the Privacy Act. However, Complainant reiterates that management instructed an individual to access her personnel file due to her prior protected activity. ANALYSIS AND FINDINGS The Agency improperly dismissed claim (1), the reassignment/detail to Lithicum, Maryland, for failure to raise this matter with an EEO Counselor. Complainant, on appeal, asserts that she did raise this matter during EEO Counseling. We are persuaded by Complainant’s assertion that she spoke with an EEO Counselor regarding this matter. We note that the “Resolution Sought” section of the EEO Counselor’s Report makes reference to “reimbursement for travel to and from VISN headquarters” and “restoration of leave taken between April 27, 2018 and June 8, 2018”. We note that these remedies appear to correspond to Complainant’s detail to Lithicum, Maryland because she had additional travel costs and the date of the detail was April 27, 2018. Furthermore, the Agency does not respond on appeal to Complainant’s assertion that she raised this matter with an EEO Counselor. Based on the foregoing, we find that the Agency improperly dismissed this claim. 2019002985 3 The Agency also improperly dismissed claim (2), for failure to state claim. We acknowledge that the Commission does not have jurisdiction over the Privacy Act. We find, however, that the crux of Complainant’s claim is that the management instructed an employee who did not have a “need to know” to access Complainant’s personnel file due to Complainant’s prior protected activity. The Commission has stated that adverse actions need not qualify as “ultimate employment actions” or materially affect the terms and conditions of employment to constitute retaliation. See Burlington Northern and Santa Fe Railway Co. v. White, 548 U. S. 53 (2006) (finding that the anti-retaliation provision protects individuals from a retaliatory action that a reasonable person would have found “materially adverse,” which in the retaliation context means that the action might have deterred a reasonable person from opposing discrimination or participating in the EEOC charge process); see also Lindsey v. U.S. Postal Serv., EEOC Request No. 05980410 (Nov. 4, 1999) (citing EEOC Compliance Manual, No. 915.003 (May 20, 1998)). We find that this alleged incident is reasonably likely to deter Complainant or others from engaging in protected activity and thus has set forth an actionable reprisal claim. We REVERSE the Agency’s final decision dismissing the formal complaint and we REMAND this matter to the Agency for further processing in accordance with the ORDER below. ORDER (E0618) The Agency is ordered to process the remanded claims in accordance with 29 C.F.R. § 1614.108. The Agency shall acknowledge to the Complainant that it has received the remanded claims within thirty (30) calendar days of the date this decision was issued. The Agency shall issue to Complainant a copy of the investigative file and also shall notify Complainant of the appropriate rights within one hundred fifty (150) calendar days of the date this decision was issued, unless the matter is otherwise resolved prior to that time. If the Complainant requests a final decision without a hearing, the Agency shall issue a final decision within sixty (60) days of receipt of Complainant’s request. As provided in the statement entitled "Implementation of the Commission's Decision,” the Agency must send to the Compliance Officer: 1) a copy of the Agency’s letter of acknowledgment to Complainant, 2) a copy of the Agency’s notice that transmits the investigative file and notice of rights, and 3) either a copy of the complainant’s request for a hearing, a copy of complainant’s request for a FAD, or a statement from the agency that it did not receive a response from complainant by the end of the election period. IMPLEMENTATION OF THE COMMISSION’S DECISION (K0618) 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. 2019002985 4 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 Complainant and his/her representative. 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. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0617) 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. A party shall have twenty (20) calendar days of receipt of another party’s timely request for reconsideration in which to submit a brief or statement in opposition. 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. Complainant’s request 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 agency’s request must be submitted in digital format via the EEOC’s Federal 2019002985 5 Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). 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 (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 August 2, 2019 Date Copy with citationCopy as parenthetical citation