0120180368
01-25-2018
Queen L,1 Complainant, v. Ryan D. McCarthy, Acting Secretary, Department of the Army, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Queen L,1
Complainant,
v.
Ryan D. McCarthy,
Acting Secretary,
Department of the Army,
Agency.
Appeal No. 0120180368
Agency No. ARIMCOMHQ17AUG02940
DECISION
Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's decision dated September 29, 2017, 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.
BACKGROUND
At the time of events giving rise to this complaint, Complainant was a former employee with the Agency who is now employed by the Department of Veterans Affairs.
On September 19, 2017, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination on the basis of reprisal for prior protected EEO activity under an EEO statute that was unspecified in the record when:
1. On August 28, 2017, Complainant learned that the EEO Manager had received the Post Investigative Order (PIO) and Report of Investigation (ROI) back in her office since November 7, 2016, that had not been served on Complainant. It is the belief of Complainant that the EEO Manager, the Agency's Representative, and Complainant's attorney at the time (Attorney) worked together to ensure that the Attorney would not respond to the investigation. The EEO Manager forwarded Complainant's investigation to the Agency for a final decision without Complainant being provided a copy of the file to make a decision on whether she wanted a hearing or a final Agency decision.
2. On or about August 25, 2017, the Deputy Director of the Army Benefit Center-Civilian (ABC-C) emailed the Department of Veteran's Affair's Hospital to inquire if Complainant had lied on her application in order to get a job at the Hospital. Complainant believed that this was harassment and defamation of character.
The Agency issued its final decision dismissing the complaint. The Agency noted that Complainant alleged two additional claims of retaliation when:
3. On August 22, 2017, Complainant emailed the Director that she wanted to file a complaint of discrimination based on the fact that the EEO Manager and the Agency Representative failed to inform her on why she did not receive a copy of PIO or the ROI. The Attorney received a copy of the PIO and the ROI on October 3, 2016, but he failed to inform Complainant that he was rolling the complaint into a pending appeal before the Merit Systems Protection Board. Complainant was informed by the EEO Manager that after the 35th day, she requested a final decision because she did not receive response from Complainant.
4. On August 17, 2017, Complainant became aware that she was denied an opportunity to request a hearing in her prior complaint for she did not receive a copy of the PIO or the ROI.
The Agency dismissed claims (1), (3), and (4) pursuant to 29 C.F.R. � 1614.107(a)(8) as a spin off complaint. The Agency noted that Complainant alleged discrimination regarding the processing of her prior EEO complaint. The Agency noted that it addressed Complainant's claims as a separate matter from the instant complaint. The Agency also noted that Complainant failed to state a claim pursuant to 29 C.F.R. � 1614.107(a)(1) for she is no longer an employee with the Agency. In addition, the Agency dismissed claim (2) pursuant to 29 C.F.R. � 1614.107(a)(1). The Agency held that Complainant was no longer an employee, as such, she has not shown how the event alleged in claim (2) affected a term, condition or privilege of employment. In addition, the Agency dismissed claim (2) for failure to bring this matter to the attention of the EEO Counselor pursuant to 29 C.F.R. � 1614.107(a)(2). Therefore, the Agency dismissed the complaint as a whole.
Complainant appealed asserting that she should not have been penalized because the Attorney had a history of failing to request hearings in EEO complaints. Further, as to claim (2), Complainant asserted that the Deputy Director was harassing her by contacting her current employer to find out if Complainant had lied on her application. As such, she requests that the Commission remand the matter back to the Agency.
The Agency requested that the Commission affirm its dismissal. The Agency asserted that Complainant failed to state a claim regarding all the claims raised. In addition, the Agency noted that claim (2) was not raised with the EEO Counselor. As such, the Agency asked that the Commission affirm its dismissal.
ANALYSIS AND FINDINGS
The Agency dismissed claims (1), (3) and (4) pursuant to 29 C.F.R. � 1614.107(a)(8). EEOC Regulation 29 C.F.R. � 1614.107(a)(8) provides that an Agency shall dismissal claims alleging dissatisfaction with the processing of a prior complaint. Dissatisfaction with the EEO process must be raised within the underlying complaint, not as a new complaint. See Equal Employment Opportunity Commission Management Directive 110 (MD-110) 5-28 (Aug. 5, 2015). Upon review, we find that Complainant clearly asserted dissatisfaction with the processing of her prior complaint. As such, the Agency's dismissal of claims (1), (3), and (4) was appropriate.
We now turn to claim (2). We note that the Agency dismissed the matter pursuant to 29 C.F.R. � 1614.107(a)(1) for failure to state a claim. The Agency noted that Complainant was a former employee and that the alleged event failed to allege a harm related to a term condition or privilege of employment. 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, disabling condition, genetic information, or reprisal. 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. Dep't of the Air Force, EEOC Request No. 05931049 (Apr. 21, 1994).
The first basis we shall address is the Agency's claim that Complainant failed to state a claim because she is no longer employed by the Agency. We note that the Agency's assertion is incorrect. A former employee may state a viable retaliation claim for protected activity that arose from his or her employment with an agency even if the disputed agency action occurred after the termination of the employment relationship. In Robinson v. Shell Oil Co., 519 U.S. 337 (1997), a case involving a claim of retaliation when a former employer gave an employee a negative job reference, the Supreme Court clarified that the term "employee" as used in the anti-retaliation provision of Title VII, includes former employees. See also Doyle v. Dep't of Justice, EEOC Request No. 0520070207 (Oct. 12, 2007) (Complainant stated a viable claim of retaliation when, as a former employee who had engaged in protected EEO activity, he was not selected for a contract position with the Agency after his retirement); Machlin v. U.S. Postal Serv., EEOC Appeal No. 0120070788 (March 29, 2007) (Complainant stated a viable claim of retaliation when, as a former employee who had engaged in protected EEO activity, he was not selected for a contract position with the Agency); Bimes v. Dep't of Defense, EEOC Appeal No. 01990373 (April 13, 1999) (allegation of retaliation involving agency's refusal to provide a former employee with post-employment letters of reference states a viable claim). In the instant case, Complainant alleged that, on the basis of unlawful retaliation, in August 2017, the Agency's Deputy Director contacted an official at her current employer alleging that Complainant lied on her application. We find that Complainant has a viable claim and the Agency's dismissal was not appropriate.
In addition, the Agency asserted that Complainant failed to show that she was subjected to harm. Here, however, Complainant has asserted that she was subjected to unlawful retaliation for her prior protected activity. Regarding Complainant's claim of reprisal, the Commission has stated that adverse actions need not qualify as "ultimate employment actions" or materially affect the terms and conditions of employment to constitute retaliation. See Burlington Northern and Santa Fe Railway Co. v. White, 548 U. S. 53 (2006) (finding that the anti-retaliation provision protects individuals from a retaliatory action that a reasonable person would have found "materially adverse," which in the retaliation context means that the action might have deterred a reasonable person from opposing discrimination or participating in the EEOC charge process); see also Lindsey v. U.S. Postal Serv., EEOC Request No. 05980410 (Nov. 4, 1999) (citing EEOC Compliance Manual, No. 915.003 (May 20, 1998)). Instead, the statutory retaliation clauses prohibit any adverse treatment that is based upon a retaliatory motive and is reasonably likely to deter the charging party or others from engaging in protected activity. Id. Complainant alleged that, following her prior EEO activity, the Deputy Director called her new employer to provide negative information about Complainant. We find that such a claim is reasonably likely to deter Complainant or others from engaging in protected activity. Therefore, upon review, we find that the Agency's dismissal was not appropriate.
Finally, the Agency also dismissed claim (2) pursuant to 29 C.F.R. � 1614.107(a)(2). The regulation set forth at 29 C.F.R. � 1614.107(a)(2) states, in pertinent part, that an agency shall dismiss a complaint which raises a matter that has not been brought to the attention of an EEO Counselor, and is not like or related to a matter on which the complainant has received counseling. A later claim or complaint is "like or related" to the original complaint if the later claim or complaint adds to or clarifies the original complaint and could have reasonably been expected to grow out of the original complaint during the investigation. See Scher v. U.S. Postal Serv., EEOC Request No. 05940702 (May 30, 1995); Calhoun v. U.S. Postal Serv., EEOC Request No. 05891068 (Mar. 8, 1990).
Upon review, Complainant contacted the EEO Counselor alleging discrimination with processing of her prior complaint. In the instant formal complaint, Complainant alleged that she was subjected to retaliation due to the prior EEO complaint. As such, we find that Complainant has alleged a claim that could have reasonably been expected to grow out of the original complaint. Therefore, we find that the Agency's dismissal was not appropriate.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the dismissal of claims (1), (3), and (4). However, we REVERSE claim (2) and REMAND the claim in accordance with the ORDER below.
ORDER (E1016)
The Agency is ordered to process the remanded claim, namely claim (2), in accordance with 29 C.F.R. � 1614.108. 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.
A copy of the Agency's letter of acknowledgment to Complainant and a copy of the notice that transmits the investigative file and notice of rights must be sent to the Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0617)
Compliance with the Commission's corrective action is mandatory. The Agency shall submit its compliance report within thirty (30) calendar days of the completion of all ordered corrective action. The report shall be in the digital format required by the Commission, and submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. � 1614.403(g). The Agency's report must contain supporting documentation, and the Agency must send a copy of all submissions to the Complainant. 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 (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.
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
January 25, 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.
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