EEOC Appeal No. 0120182087
08-31-2018
Maximo S. v. Dep't of the Army
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Maximo S.,1
Complainant,
v.
Dr. Mark T. Esper,
Secretary,
Department of the Army,
Agency.
Appeal No. 0120182087
Agency No. ARPEOSTRI18MAR01210
DECISION
Complainant timely appealed to the Equal Employment Opportunity Commission ("EEOC" or "Commission") from the Agency's decision dated May 9, 2018, dismissing his 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.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked for the Agency as a Computer Engineer at the Program Executive Office for Simulation, Training and Instrumentation ("PEO STRI") in Orlando, Florida.
On April 18, 2018, Complainant filed a formal EEO complaint alleging that he was subjected to discrimination by the Agency on the basis of reprisal for engaging prior protected activity2 when:
On March 28, 2018, Complainant became aware that a full, un-redacted version of his formal complaint, from a prior EEO action ("the 2011 EEO Complaint") was in the PEO STRI common network drive ("shared drive") and could be viewed by his coworkers. It was determined that complainant's coworker ("C1") was responsible for uploading the 2011 EEO Complaint in December 2017, and that C1 was among several of Complainant's coworkers who received it as an email attachment from the PEO STRI Legal Counsel ("LC") in June 2012.
On April 6, 2011, Complainant filed the 2011 EEO Complaint, which alleged that his two supervisors ("S1" and "S2"), and C1 subjected him to discrimination and a hostile work environment. See Agency Case No. ARCESAV11JAN04975.
On June 18, 2012, LC, who was representing the Agency in response to Complainant's 2011 EEO Complaint, sent his full, nonredacted formal complaint as an email attachment S1, S2, C1, and another coworker ("C2") to testify as witnesses for the Agency, to refresh their recollection of the case. The full un-redacted 2011 EEO Complaint revealed, Complainant's social security number, personal contact information, his allegations against named management officials, and "a characterization of his mental state." Paragraph 38 specifies that because of the alleged discrimination and harassment, Complainant "suffered from depression, anxiety, stress, insomnia, [and had] difficulty concentrating."
In December 2017, C1 uploaded Complainant's full, nonredacted 2011 EEO Complaint, to the PEO STRI I: drive ("shared drive") in a folder labeled "[Complainant's first and last name] "litigation." Complainant's full complaint could be viewed and downloaded by anyone with access to the shared drive, including many of his coworkers, and management officials.
On March 28, 2018, Complainant found out about the folder from a coworker, and contacted the EEO Office. An EEO Investigator contacted LC, who stated that she was unaware that the material had been uploaded, and C1 who explained the upload had been accidental, attributing it to the PRO STRI office-wide transition to an updated Windows Platform. C1 removed the folder from the shared drive and deleted it. The EEO officer contacted appropriate IT staff to ensure Complainant's full, nonredacted 2011 EEO Complaint had been erased from the Agency's server and could no longer be accessed "as fast as was practicable" (9 days). Additionally, a meeting with both LC and C1 was arranged to discuss how to prevent such similar events from reoccurring in the future.
The Agency dismissed Complainant's complaint for failure to state a claim in accordance with 29 C.F.R. � 1614.107(a)(1).
Alternately, the Agency determined that because it deleted Complainant's full nonredacted 2011 EEO Complaint from the server, Complainant's claim was moot pursuant to � 1614.107(a)(5).
ANALYSIS AND FINDINGS
In relevant part, 29 C.F.R. � 1614.107(a)(1) provides 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. See Diaz v. Dep't of the Air Force, EEOC Request No. 05931049 (Apr. 21, 1994).
For claims of reprisal, adverse actions need not qualify as "ultimate employment actions" or materially affect the terms and conditions of employment to constitute retaliation. Lindsey v. United States Postal Serv., EEOC Request No. 05980410 (Nov. 4, 1999). Instead, claims based on statutory retaliation clauses are reviewed "with a broad view of coverage. Under Commission policy, a complainant is protected from any retaliatory discrimination that is reasonably likely to deter... complainant or others from engaging in protected activity." Maclin v. United States Postal Serv., EEOC Appeal No. 0120070788 (Mar. 29, 2007).
The Agency characterizes LC's action as "mere notification of Agency personnel who were identified as potential witnesses in an EEO investigato[n] that their participation in the EEO process may be necessary and giving them the complaint so they may have their recollections refreshed prior to testifying in the investigation." The Agency reasons that it would be "absurd" for the instant complaint to state a claim, because it would "substantially hamper the Agency's ability to adequately investigate the complaint."
The Agency's argument does not apply here. We have previously recognized that a complaint alleging dissatisfaction with the processing of a previously filed complaint must be dismissed, and the matter should be referred to the agency official responsible for complaint processing, and/or processed as part of the original complaint. See 29 C.F.R. � 1614.107(a)(8); EEOC Management Directive for 29 C.F.R. Part 1614 (EEO-MD-110), Chap. 5 � IV.D, page 5-26 (Aug. 5, 2015). However, LC is not a neutral EEO investigator, but the Agency's Representative, acting in the course of preparing a case against Complainant's EEO complaint. Moreover, the "witnesses" she sent it to were named in Complainant's complaint as his alleged harassers. In addition, the appearance of a folder on the shared drive, entitled "[Complainant's first and last name] Litigation" containing his EEO complaint. Both actions are reasonably likely to deter protected activity. Complainant states a claim of reprisal.
Agencies have a continuing duty to promote the full realization of equal employment opportunity in its policies and practices. 29 C.F.R. �1614.101 This duty extends to every aspect of agency personnel policy and practice in the employment, development, advancement, and treatment of employees. Agencies are obligated to "insure that managers and supervisors perform in such a manner as to insure a continuing affirmative application and vigorous enforcement of the policy of equal employment opportunity. 29 C.F.R. �1614.102(5); Woolf v. Dep't of Energy, EEOC Appeal No. 0120083727 (June 4, 2009), Vincent v. United States Postal Serv., EEOC Appeal No. 0120072908 (Aug. 3, 2009), request to reconsider denied, EEOC Request No. 0520090654 (Dec. 16, 2010). When an Agency's action has a potentially chilling effect on use of the EEO complaint process - the ultimate tool that employees have to enforce equal employment opportunity - the action violates the prohibition against interference with the EEO process.
Additionally, the Rehabilitation Act provides that information obtained regarding the medical condition or history of any employee shall be treated as a confidential medical record and there are only limited exceptions to this regulation. 29 C.F.R. � 1630.14. By its terms, this requirement applies to confidential medical information obtained from "any employee," and is not limited to individuals with disabilities. Hampton v. United States Postal Serv., EEOC Appeal No. 01A00132 (Apr. 13, 2000). Although not all medically-related information falls within this provision, documentation or information of an individual's diagnosis or symptoms is medical information that must be treated as confidential except in those circumstances described in 29 C.F.R. Part 1630. See Hampton, supra; see also EEOC Enforcement Guidance on the Americans with Disabilities Act and Psychiatric Disabilities (Mar. 25, 1997) at 17.
Complainant's statement that he "suffered from depression, anxiety, stress, insomnia, difficulty concentrating," located in Paragraph 38 of the nonredacted 2011 EEO Complaint constitutes medical information that must be treated as confidential as defined by the Rehabilitation Act. Complainant states a claim under the Rehabilitation Act.
We find that the prospect of Agency Counsel providing a complainant's alleged harassers with a copy of his or her entire EEO complaint, including highly personal information, is likely to have a chilling effect on a complainant's willingness to engage in the EEO process. Further, we find the act of making Complainant's 2011 EEO Complaint--including personal medical information--available to view and download from the shared drive likely to have a chilling effect on any individual that comes upon the folder in the shared drive. This also states a claim.
Given the facts alleged by Complainant, we further find the Agency's alternate grounds for dismissal under 29 C.F.R. � 1614.107(a)(5) does not apply. Among other things, if Complainant prevailed, he might be entitled to compensatory damages.
CONCLUSION
Accordingly, the Agency's Final Decision dismissing Complainant's complaint is REVERSED.
The complaint is hereby REMANDED to the Agency for further processing in accordance with this Decision and the following Order.
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 (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. 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 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 31, 2018
__________________
Date
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 A fair reading of the record indicates that Complainant is also alleging a violation of the Rehabilitation Act, based on his statement that the Agency improperly disclosed "a characterization of [his] mental state," and because the document at issue contains personal health information concerning disabling conditions.
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