Zenia M.,1 Complainant,v.Dr. Mark T. Esper, Secretary, Department of Defense (Defense Information Systems Agency), Agency.

Equal Employment Opportunity Commission

Oct 6, 2020

2020003592 (E.E.O.C. Oct. 6, 2020)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Zenia M.,1 Complainant, v. Dr. Mark T. Esper, Secretary, Department of Defense (Defense Information Systems Agency), Agency. Appeal No. 2020003592 Agency No. DOD-DISA-20-012 DECISION Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from an Agency decision, dated April 29, 2020, dismissing a formal complaint of unlawful employment discrimination in violation of 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 During the relevant time, Complainant worked for the Agency as a Program Analyst at the Agency’s Defense Spectrum Organization facility in Annapolis, Maryland. In approximately July 2018, Complainant requested a reasonable accommodation. During the processing of her request, Complainant believed that her medical information was improperly shared. Similarly, in seeking to obtain workers’ compensation benefits, Complainant provided medical documentation that she feels was then improperly shared with Agency officials and used to support suspension of her security access. Believing that the Agency’s actions were unlawful harassment and discriminatory, Complainant contacted an EEO Counselor on January 3, 2020. 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 2020003592 Informal efforts to resolve Complainant’s concerns were unsuccessful. Subsequently, on February 14, 2020, Complainant filed a formal complaint based on disability (mental), and reprisal for prior protected EEO activity (July 18, 2018 EEO complaint). The Agency framed the claims as follows: 1. On or about July 11, 2018, Complainant’s first-line supervisor [hereinafter “Branch Chief”] violated the Rehabilitation Act when she disclosed Complainant’s medical information and request for a reasonable accommodation on a publicly-accessed, open calendar, without Complainant’s consent; 2. On or about July 26, 2018, Branch Chief violated the Rehabilitation Act when she disclosed Complainant’s confidential medical information to Complainant’s former second-line supervisor (hereinafter “Division Chief”), without Complainant’s consent; 3. On or about October 11, 2019, Branch Chief violated the Rehabilitation Act when she disclosed Complainant’s request for reasonable accommodation to Civilian Deputy, Business Management Division (hereinafter “Business Deputy”) and the Human Resources Field Advisor (hereinafter “HR Advisor”), without Complainant’s consent; 4. On October 28, 2019, the Agency’s Disability Program Manager violated the Rehabilitation Act when she shared a communication from Complainant’s treating mental health physician with Division Chief2, without Complainant’s consent. 5. On or about November 5, 2019, Disability Program Manager violated the Rehabilitation Act when she released Complainant’s confidential medical records to Division Chief. without Complainant’s consent; 6. On or about November 5, 2019, an employee of the Defense Finance and Accounting Office (DFAS), Worker’s Compensation Division (hereinafter “Employee-F”) violated the Rehabilitation Act when she sent Complainant’s confidential medical records to Chief of Security, without Complainant’s consent; 7. On November 12, 2019, Disability Program Manager violated the Rehabilitation Act when she forwarded Complainant’s confidential medical 2 In claim (4) the Agency notes that the individual, previously identified as “Division Chief” in claim (2), is Complainant’s “current first-line supervisor”. For purposes of clarity we will refer to him as Division Chief throughout this decision. 3 2020003592 records to legal counsel without Complainant’s consent; and, 8. On or about November 12, 2019, Chief of Security violated the Rehabilitation Act when he released Complainant’s confidential medical records to the Department of Defense Consolidated Adjudication Facility and to Security Manager, DSO, without Complainant’s consent. In its April 29, 2020 decision, the Agency dismissed the formal complaint for untimely EEO Counselor contact. According to the Agency, Complainant’s January 3, 2020 contact, regarding events that transpired between July 11, 2018 and November 12, 2019, was seven days beyond the time limit. Complainant filed the instant appeal. ANALYSIS AND FINDINGS EEOC Regulation 29 C.F.R. § 1614.105(a)(1) requires that complaints of discrimination should be brought to the attention of the Equal Employment Opportunity Counselor within forty-five (45) days of the date of the matter alleged to be discriminatory or, in the case of a personnel action, within forty-five (45) days of the effective date of the action. 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 a complainant reasonably suspects discrimination, but before all the facts that support a charge of discrimination have become apparent. EEOC Regulations provide that the agency or the Commission shall extend the time limits when the individual shows that she was not notified of the time limits and was not otherwise aware of them, that she did not know and reasonably should not have known that the discriminatory matter or personnel action occurred, that despite due diligence she was prevented by circumstances beyond her control from contacting the Counselor within the time limits, or for other reasons considered sufficient by the agency or the Commission. The alleged events in claims (1) and (2) occurred in July 2018, approximately one and one-half years before Complainant’s January 3, 2020 EEO Counselor contact. She has not provided sufficient reason for her lengthy delay. Further, the Agency asserts that a grievance regarding the events was filed on Complainant’s behalf, on July 30, 2018, showing that she suspected discrimination at that time. Therefore, we find that claims (1) and (2) were properly dismissed. Regarding claim (3), the record reflects that Complainant was included in email correspondence when Branch Chief shared Complainant’s reasonable accommodation request information with the Business Deputy and HR Advisor. 4 2020003592 Similarly, a lengthy email exchange between Complainant and the Disability Program Manager reflects that Complainant reasonably suspected, or should have suspected, the allegedly unlawful disclosure in late October 2019 (claim (4)). In response to Complainant’s apparent objection to sharing her medical information with the Division Chief, the Disability Program Manager explained that “[i]f you fail to agree to the release of your medical documentation to [Division Chief] it is quite difficult for him to provide an effective accommodation. . . .” Further, in a November 5, 2019 email from the Disability Program Manager to Complainant, she expressly stated that Complainant’s reasonable accommodation application documents were forwarded to Division Chief (claim (5)). Therefore, we agree that Complainant should have reasonable suspected discrimination at that time of the events in claims (4) and (5), making her contact in January 2020 untimely. In claim (6), Complainant contends that she provided confidential medical information to Employee-F, as part of her worker’s compensation claim, and Employee-F then shared the information with Chief of Security.3 On appeal, Complainant argues that she could not reasonably suspect a Rehabilitation Act violation until December 17, 2019, when the Chief of Security provided his MRU (Materials Relied Upon) and first mentioned Employee-F by name. Further, she asserts that she did not receive an unredacted MRU, revealing all the medical documents that had been disclosed, until January 15, 2020. However, the Agency counters that on November 15, 2019 Complainant filed a Motion to Dismiss without Prejudice with Leave to Reopen (hereinafter “Motion”), re EEOC Case No. 531-2019-00743X, wherein she acknowledged that her doctor’s note was provided to Agency Security. Because the limitation period for contacting an EEO Counselor is triggered by the reasonable suspicion standard, waiting until one has “supporting facts” or “proof” of alleged discrimination before initiating a complaint can result in untimely Counselor contact. Bracken v. United States Postal Service, EEOC Request No. 05900065 (March 29, 1990). Complainant reasonably suspected discrimination in the days that followed the alleged November 5, 2019 disclosure. Even if the forty-five day time limit were to begin on the date the Motion was filed, clearly stating her belief that medical information was improperly shared with the security office, Complainant’s contact remains untimely. Complainant alleges in claim (7) that the Disability Program Manager violated the Rehabilitation act when she forwarded Complainant’s medical documentation to Agency legal counsel. In challenging the denial of her security access, Complainant’s November 15, 2019 Motion describes that on November 12, 2019, the Disability Program Manager stated that the matter had been forwarded to legal counsel. Therefore, Complainant suspected discrimination at the time of the event and should have contacted the EEO Counselor within forty-five days. 3 Thereafter, the Chief of Security suspended Complainant’s access to classified information. 5 2020003592 Regarding claim (8), we find that Complainant should have reasonably suspected discrimination when she was informed that her security access was suspended on November 13, 20194. She did not contact an EEO Counselor within forty-five days. Because Complainant has not provided sufficient justification for extending or tolling the time limit, we find that the Agency’s decision to dismiss the complaint was proper. CONCLUSION The Agency’s final decision dismissing the formal complaint for the reasons discussed above is AFFIRMED. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0620) The Commission may, in its discretion, reconsider this appellate decision if the 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). 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. 4 While the memorandum, suspending Complainant’s access to classified information or occupancy of a sensitive position, is dated November 8, 2019, it was signed as received by Complainant on November 13, 2019. 6 2020003592 In the absence of a legible postmark, 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 (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. 7 2020003592 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 October 6, 2020 Date