0120120828
04-12-2012
Marcia A. Lurensky, Complainant, v. Jon Wellinghoff, Chairman, Federal Energy Regulatory Commission, Agency.
Marcia A. Lurensky,
Complainant,
v.
Jon Wellinghoff,
Chairman,
Federal Energy Regulatory Commission,
Agency.
Appeal No. 0120120828
Agency No. EEO-2011-MAL-004
DECISION
Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's decision dated October 24, 2011, 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. the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq., and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Trial Attorney at the Agency's Office of Administrative Litigation (OAL) in Washington, DC. On April 25, 2011, she filed a formal complaint alleging that she was subjected to discrimination and a hostile work environment based on her age (62) and reprisal for prior protected Equal Employment Opportunity (EEO) activity under Title VII, the ADEA and the Rehabilitation Act when the Agency:
1. placed on a shared drive a document containing alleged Personally Identifiable Information (PII) on her which was accessible to Agency employees on their computers;
2. did not report this PII breach to the Department of Energy Cyber Incident Response Capability;
3. potentially mishandled her EEO case files in response to a Federal Labor Relations Board (FLRA) order to provide them to the Union representing the Agency employees bargaining unit; and
4. did not answer Complainant's chain-of-custody and responsibility type questions about the handling of her EEO case files in response the FLRA order.1
In her complaint, Complainant described the PII as her date of birth, information related to retirement such as her age at projected retirement, her high three average salary, projected monthly annuity, and whether she elected a survivor annuity; the name of her health insurance provider, her enrollment and premium; and her life insurance and premium. Complainant also submitted an email by an Agency Branch Chief, Labor & Employee Relations, which she received in March 2011 informing her that as a condition of settlement of an unfair labor practices claim by the Union, the FLRA ordered the Agency to produce to the Union all current case files for all non-union grievances, and the FLRA includes formal EEO complaints in the definition of grievances. In the email the Branch Chief advised Complainant that the Agency made every effort to redact any Privacy Act information, and as a bargaining unit employee, she should contact the Union directly if she had any questions.
The Agency dismissed the complaint for failure to state a claim, reasoning Complainant was not harmed. 29 C.F.R. � 1614.107(a)(1). On issue 1, the Agency also reasoned that the alleged release of PII should be addressed using remedies in the Privacy Act, not the EEO process. On issue 3, the Agency noted that Complainant never alleged the EEO files were actually mishandled.
On appeal, Complainant reiterates her claims, and argues she was harmed. In opposition to the appeal, the Agency reiterates its findings.
ANALYSIS AND FINDINGS
The regulation set forth at 29 C.F.R. � 1614.107(a)(1) provides, in relevant part, that an agency shall dismiss a complaint that fails to state a claim. An agency shall accept a complaint from any aggrieved employee or applicant for employment who believes that he or she has been discriminated against by that agency because of race, color, religion, sex, national origin, age or disabling condition. 29 C.F.R. �� 1614.103, .106(a). 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 (April 21, 1994).
The Commission has a policy of considering reprisal claims with a broad view of coverage. See Carroll v. Department of the Army, EEOC Request No. 05970939 (April 4, 2000). Under Commission policy, claimed retaliatory actions which can be challenged are not restricted to those which affect a term or condition of employment. Rather, a complainant is protected from any discrimination that is reasonably likely to deter protected activity. See EEOC Compliance Manual Section 8, "Retaliation," No. 915.003 (May 20, 1998), at 8-15; see also Carroll.
Regarding issues 1 and 2, the Commission has previously determined that matters concerning the Privacy Act are not within regulations enforced by the Commission. The Commission notes that the Privacy Act 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. See Bucci v. Department of Education, EEOC Request Nos. 05890289, 05890290, 05890291 (Apr. 12, 1989). We also find that the Agency's failure to report the alleged PII breach is not a harm personal to Complainant, and thus fails to state a claim.
On issue 3, Complainant does not contend that the Agency mishandled her EEO files, rather, she alleges they were potentially mishandled. Given this, we agree with the Agency's finding that Complainant has not shown she was harmed. Further, we find that while frustrating to Complainant, issue 4 does not state a claim of harm. We further find that the issues in Complainant's complaint would not reasonably likely deter protected EEO activity.
The Agency's decision dismissing Complainant's complaint is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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 or within twenty (20) calendar days of receipt of another party's timely request for reconsideration. See 29 C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at 9-18 (November 9, 1999). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. 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 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 (Z0610)
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 from the Court that the Court appoint an attorney to represent you and that the Court also 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 with the Court 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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
April 12, 2012
__________________
Date
1 The Agency's definition of the complaint did not include issues 2 and 4. After reviewing the complaint and Complainant's argument on appeal, we find that issues 2 and 4 were part of the complaint.
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0120120828
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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