[Redacted], Mirta Z., 1 Complainant,v.Pete Buttigieg, Secretary, Department of Transportation, Agency.

Equal Employment Opportunity Commission

Jul 11, 2022

Appeal No. 2022001686 (E.E.O.C. Jul. 11, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Mirta Z.,1 Complainant, v. Pete Buttigieg, Secretary, Department of Transportation, Agency. Appeal No. 2022001686 Agency No. 2022-29318-OST-02 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's decision dated February 1, 2022, dismissing her 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. and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. The Commission accepts the appeal in accordance with 29 C.F.R. § 1614.405. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Program Analyst, GS-15, at the Agency’s Office of Drug and Alcohol Policy and Compliance in Washington, D.C. On December 14, 2021, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination on the bases of sex (female), disability (throat cancer) and reprisal for prior protected EEO activity. The Agency, in its decision framed the claims as follows: 1) On or about August 27, 2021, you learned that your former supervisor (CG) was given access to your medical records to complete her affidavit in your prior EEO complaint (No. 2021-29108-OST-02) despite the fact that her employment with DOT ended on January 21, 2021. 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. 2022001686 2 2) On or about September 24, 2021, you learned that FAA employees committed a violation of the Rehabilitation Act by providing your medical records to CG to complete her affidavit in your prior EEO complaint (No. 2021-29108-OST- 02), despite the fact that she was no longer a DOT employee at the time. 3) On or about September 24, 2021, you learned that FAA employees committed a violation of the Privacy Act by providing your medical records to CG to complete her affidavit n your prior EEO Complaint (No. 2021-29108-OST- 02), despite the fact that she was no longer a DOT employee at the time. The Agency dismissed the complaint on the grounds that raises the same claims that are pending before the Commission, pursuant to 29 C.F.R. 1614.107(a)(1). The Agency reasoned that the claims “are merely additional examples of the overall harassment claim that [Complainant] set forth in [Case No. 2021-29108-OST-02] which is currently pending a hearing before the EEOC.” In support the Agency quotes from the Report of Investigation for the prior case (“Case 29108”). Additionally, the Agency dismissed claim 3, stating that Privacy Act violations are outside of the Commission’s jurisdiction. The instant appeal followed. ANALYSIS AND FINDINGS The regulation set forth at 29 C.F.R. § 1614.107(a)(1) provides that the agency shall dismiss a complaint that states the same claim that is pending before or has been decided by the agency or Commission. It has long been established that "identical" does not mean "similar." The Commission has consistently held that in order for a complaint to be dismissed as identical, the elements of the complaint must be identical to the elements of the prior complaint in time, place, incident, and parties. See Jackson v. Dep’t of the Air Force, EEOC Appeal No 01955890 (April 5, 1996) rev’d on other grounds EEOC Request No. 05960524 (April 24, 1997). Here, the Agency has provided a copy of the acceptance letter and Counselor’s Report for Case 29108. The documents reflect that the August 2021 incident raised in the instant compliant occurred well after the April 2021 filing of Case 29108, and there is no evidence that Case 29108 was amended to include the August 2021 event. In its decision and on appeal, the Agency asserts that Complainant referenced the August 2021 incident during the investigation of Case 29108. This fact alone does not establish that the matter was ever accepted as an issue in the earlier complaint. We note that in Ericson v. Department of the Army, EEOC Request No. 05920623 (January 14, 1993), the Commission stated that “the agency has the burden of providing evidence and/or proof to support its final decisions.” See also Gens v. Department of Defense, EEOC Request No. 05910837 (January 31, 1992). The instant record also contains a December 1, 2021 document submitted to the AJ presiding over Case No. 2020-28794-OST-2 and Case 29108, wherein the Agency argues that Complainant’s request to consolidate the instant case with the earlier cases should be denied. 2022001686 3 According to the Agency’s Response to Complainant’s Motion to Consolidate Complaints, the instant complaint is not “like or related” to the matters at hearing. Now, the Agency would have us believe that instant case is “identical” to the Case 29108. We find that the Agency’s decision to dismiss the complaint, on the grounds that the claims are identical to those raised in Case 29108 was improper. The Agency has failed to substantiate the bases for its final decision. See Marshall v. Dep’t of the Navy, EEOC Request No. 05910685 (Sept. 6, 1991). As for the dismissal of claim 3, alleging a Privacy Act violation, we agree that the matter is outside of the Commission’s jurisdiction. The Privacy Act, 5 U.S.C. § 552(f)(1), provides an exclusive statutory framework governing the disclosure of identifiable information contained in federal systems of records and jurisdiction rests exclusively in the United States District Courts for matters brought under the Privacy Act. See Bucci v. Department of Education, EEOC Request Nos. 05890289, 05890291 (April 12, 1989). CONCLUSION The Agency’s decision to dismiss claims 1 and 2 is REVERSED and the claims are REMANDED for further processing in accordance with this decision and the Order below. The decision to dismiss claim 3 was proper and is AFFIRMED. ORDER (E0618) The Agency is ordered to process the remanded claims in accordance with 29 C.F.R. § 1614.108 et seq. 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 (K0719) 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) 2022001686 4 supporting documents in the digital format required by the Commission, referencing the compliance docket number under which compliance was being monitored. 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. Failure by an agency to either file a compliance report or implement any of the orders set forth in this decision, without good cause shown, may result in the referral of this matter to the Office of Special Counsel pursuant to 29 C.F.R. § 1614.503(f) for enforcement by that agency. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0920) The Commission may, in its discretion, reconsider this appellate decision if Complainant or the Agency submits a written request that contains arguments or evidence that 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 for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration. A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within 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). 2022001686 5 Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx Alternatively, Complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, a complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless Complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together with the 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 (T0610) This decision affirms the Agency’s final decision/action in part, but it also requires the Agency to continue its administrative processing of a portion of your complaint. 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 on both that portion of your complaint which the Commission has affirmed and that portion of the complaint which has been remanded for continued administrative processing. 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 your appeal with the Commission, until such time as the Agency issues its final decision on your complaint. 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. 2022001686 6 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 11, 2022 Date