Ross H.,1 Complainant,v.W. Thomas Reeder, Director, Pension Benefit Guaranty Corporation, Agency.

Equal Employment Opportunity Commission

Aug 21, 2019

0120180927 (E.E.O.C. Aug. 21, 2019)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Ross H.,1
Complainant,

v.

W. Thomas Reeder,
Director,
Pension Benefit Guaranty Corporation,
Agency.

Appeal No. 0120180927

Agency No. 14-030-F

DECISION

On January 19, 2018, Complainant filed an appeal with the Equal Employment Opportunity
Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s
December 21, 2017 final decision concerning an equal employment opportunity (EEO) complaint
claiming 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. The Commission accepts the appeal in accordance
with 29 C.F.R. § 1614.405.

BACKGROUND

During the relevant time, Complainant worked as an Attorney at the Agency’s Office of Chief
Counsel in Washington, D.C. Complainant asserts that over more than thirty years with the
Agency, he has participated in EEO activity for two decades. This participation included serving
as union president and representing employees in EEO cases.

In 2013, Complainant, in his capacity as union president, represented an employee (hereinafter
“Employee A”) in an arbitration hearing. Another employee (hereinafter “Employee B”) testified
for the Agency, which ultimately prevailed.

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.

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A few weeks later, the union sent a newsletter,2 via mass email, to its membership. Included in
the newsletter was an article condemning Employee B, identifying her office location and calling
on members to ostracize her.

In response, the Agency filed a grievance against the union alleging that the newsletter was part
of an effort to harass witnesses.3 As part of its brief, the Agency included a copy of the newsletter.
Complainant argued to the arbitrator (hereinafter “Arbitrator C”) that the newsletter was
inappropriately obtained from an EEO file.

According to Complainant, in September 2013, the EEO representative in another EEO case
emailed the newsletter to the EEO Director and the opposing Agency counsel. Complainant argues
that Agency counsel inappropriately shared the email and newsletter with another “Agency
management attorney” who was not involved with the EEO case. This attorney, during the May
2014 grievance, submitted the newsletter to Arbitrator C.

While the grievance was pending before Arbitrator C, Complainant also filed the instant formal
EEO complaint. In his July 25, 2014 complaint, Complainant claimed that he was subjected to
reprisal, on May 5, 2014, when the Agency:

disclosed private and confidential records from EEO proceeding including
documents opposing discrimination; making threats against me and others; issuing
warnings; engaging in harassment; taking steps and actions against me and others
to restrict, limit, thwart, deter and terminate that EEO activity of me and others;
demanding that I cease EEO activity including publicity; denouncing my EEO
activity as reprehensible; demanding that I and other pay for engaging in EEO
activity; threatening damage to reputation.

On July 29, 2014, the Agency issued a final decision dismissing the formal complaint for failure
to state a claim. The Agency reasoned that the incident was not sufficiently severe to render
Complainant an aggrieved employee. Further, the Agency found that the formal complaint to be
a collateral attack on the grievance/ arbitration process. Complainant appealed the dismissal to the
Commission.

In the prior decision, the Commission found that a fair reading of the formal complaint, along with
the EEO Counselor’s Report, reflected that Complainant was alleging that “an employee of the
Agency’s Office of General Counsel transmitted a confidential document from the EEO complaint
file of another employee, to an outside arbitrator in order to discredit Complainant, as union
president, in an arbitration filed against the union.”

2 “IUPEDJ News” (Independent Union of Pension Employees for Democracy and Justice)

3 According to the Agency, Arbitrator C found that the newsletter was a clear attempt at witness
intimidation in violation of the Collective Bargaining agreement and federal law.

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See EEOC Appeal No. 0120143006 (Jan. 15, 2015). Noting the lower threshold requirement for
viable claims of retaliation, the Commission concluded that the alleged Agency actions were
sufficient to create a “chilling effect” on the pursuit of the EEO process by Complainant or others.
See id. The complaint was remanded to the Agency for further processing. See id.

After an investigation, the Agency provided Complainant with a copy of the report of investigation
and notice of his right to request a hearing before an EEOC Administrative Judge (AJ).
Complainant timely requested a hearing, but subsequently withdrew the hearing request.

Consequently, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b), finding no
discrimination. The Agency reasoned that Complainant failed to establish a prima facie case
because the alleged incident did not constitute an adverse action. The Agency stated that the use
of the newsletter in litigation before an arbitrator would not dissuade a reasonable person from
using the EEO process. Moreover, the Agency found Complainant’s assertion, that the sole source
of the newsletter was the EEO case file and that the document had not been publicly disclosed or
circulated, “strains credulity.” According to the Agency, nothing in the newsletter indicated it was
confidential or part of an EEO file. Further, the newsletter was posted on a bulletin board in the
HR Department.

The Agency also found that management proffered legitimate, non-discriminatory reasons for
using the newsletter: the newsletter was the subject of a grievance brought by the Agency against
the union alleging that it was intimidating witnesses in a newsletter article. The Agency determined
that Complainant failed to show this proffered reason was pretext.

Complainant filed the instant appeal. On appeal, he reiterates his belief that the Agency
inappropriately took a document from an EEO file and used it to pressure him to cease his EEO
activity. Such actions, argues Complainant, is a per se violation of EEO laws.

ANALYSIS AND FINDINGS

As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. § 1614.110(b),
the Agency's decision is subject to de novo review by the Commission. 29 C.F.R. § 1614.405(a).
See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 9,
§ VI.A. (Aug. 5, 2015) (explaining that the de novo standard of review “requires that the
Commission examine the record without regard to the factual and legal determinations of the
previous decision maker,” and that EEOC “review the documents, statements, and testimony of
record, including any timely and relevant submissions of the parties, and . . . issue its decision
based on the Commission’s own assessment of the record and its interpretation of the law”).

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As noted above, in finding that Complainant had presented sufficient allegations to state viable
claim of retaliation4 our previous decision observed that the Agency had purportedly disclosed
confidential documents from an EEO file and used those documents to thwart and cease further
EEO activity by Complainant. See EEOC Appeal No. 0120143006. The ordered investigation,
however, revealed that the asserted “confidential” document was, in fact, a union newsletter that
had been widely emailed to union membership and posted at the facility.

Complainant argues vigorously that the newsletter was obtained by breaching the confidentiality
of another employee’s EEO file. However, we are not persuaded. The nature of the document
itself, a “newsletter,” indicates a level of exposure and accessibility inconsistent with
Complainant’s contentions. Further, Complainant himself acknowledges that the Agency “could
have sought the newsletter somewhere other than taking it from the EEO file.”

The investigation also shows that the Agency legitimately submitted the newsletter during the
arbitration proceeding to support its efforts to protect Agency employees from being harassed and
intimidated after they testify. The newsletter was not provided to Arbitrator C in reprisal for
Complainant’s prior EEO activity. The document was legitimately used by the Agency in a
proceeding against the union.

Complainant has failed to meet his burden in establishing that he was subjected to unlawful
retaliation for his prior protected EEO activity.

CONCLUSION

The Agency’s final decision finding no discrimination was proper and is AFFIRMED.

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.

4 Citing Burlington Norther & Santa Fe Railroad Co. v. White, 548 U.S. 53, 126 S. Ct. 2405 (2006),
Complainant must allege: (1) he was subjected to an action which a reasonable employee would
have found materially adverse; and, (2) such action could dissuade a reasonable person from using
the EEO process.
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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 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 (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.

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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 21, 2019
Date