[Redacted], Glenna O., 1 Complainant,v.Barbara M. Barrett, Secretary, Department of the Air Force, Agency.

Equal Employment Opportunity Commission

Aug 13, 2020

Appeal Nos. 2020002893, 2020002998 (E.E.O.C. Aug. 13, 2020)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Glenna O.,1 Complainant, v. Barbara M. Barrett, Secretary, Department of the Air Force, Agency. Appeal Nos. 2020002893 & 2020002998 Agency Base Nos. 9O0D2000458 & 9O0D2000452, Agency AFCARO Nos. 9O0D2000458L20 & 9O0D2000452L20 DECISION On March 3, 2020, using one notice of appeal form, Complainant timely filed two appeals with the Equal Employment Opportunity Commission (EEOC or Commission) from two final Agency decisions (FADs) dated February 27, 2020, dismissing two of her complaints 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 these complaints, Complainant, who was the only worker in a company she created, served the Agency, via a sole source contract, as a Licensed Clinical Social Worker (LCSW) at its 48th Medical Group, Mental Health, located on the Royal Air Force base, Lakenheath, United Kingdom. On January 29, 2020, Complainant filed two equal employment opportunity (EEO) complaints alleging that the Agency subjected her to unlawful retaliation for prior protected EEO activity under Title VII and the Rehabilitation Act when: 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. 2020002893 & 2020002998 2 Agency Base No. 9O0D2000458 & Agency AFCARO No. 9O0D2000458L20 On June 17, 2019, through the present, she was: 1. Refused the right to be credentialed; 2. Made to feel isolated from coworkers because she was prevented from carrying out patient care as a result of not being credentialed; and 3. Forced to come to work to sit and do nothing daily because she was not credentialed. Agency Base No. 9O0D2000452 & Agency AFCARO No. 9O0D2000452L20 On or about October 31, 2019, she: 4. Received an irregular (late) paycheck after multiple requests to have her paychecks issued in a timely manner. The Agency dismissed both complaints for failure to state a claim because Complainant was not an employee of the Agency. The instant appeal followed. On appeal Complainant, who is represented by counsel, argues that she is an employee of the Agency under common law.2 In opposition to the appeal, the Agency argues that under common law Complainant is not an employee of the Agency. It also gives explanations for the events in issues 1 - 4. ANALYSIS AND FINDINGS We need not address whether under common law Complainant was an employee of the Agency when these two EEO complaints arose. Regardless, issues 1 - 4 fail to state a claim. In EEOC Appeal No. 0720180030 (Aug. 20, 2019), the Commission already found that Complainant was jointly employed by the Agency with a staffing firm serving the Agency as an Outreach Manager, and was discriminated against in relevant part when the Agency denied her privileges to practice as a LCSW, preventing her from assuming a higher paid LCSW position with another staffing firm serving the Agency. 2 The Agency argues that Complainant filed her appeal brief one day late. Complainant’s attorney, who filed the brief via email, explains that when she got to her desk in the morning she realized that the email she intended to send the night before to the Commission was left in her draft box, rather than sent. The Agency counters this is not an adequate reason for filing late. We exercise our discretion to accept Complainant’s appeal brief. 2020002893 & 2020002998 3 As relief, the Commission ordered, in relevant part, that: (1) the Agency provide Petitioner the privileges she was denied to practice with the 48th Medical Group at the Lakenheath base, known as the Lakenheath hospital, which also serves the Mildenhall base in the United Kingdom, (2) facilitate her return to the Agency as an employee of a staffing firm serving the Agency as an LCSW working with patients, or a substantially equivalent position, (3) if it was unable to do #(2), pay front pay for a period not exceeding 10 years. Thereafter, the parties disputed the privileges that were denied. The Agency believed, in effect, that Complainant was denied supervised privileges, meaning she would need to be supervised by someone with full privileges to do clinical work for a period before she earned full privileges allowing her to independently work with patients. Petitioner believed, in effect, that by definition privileges meant being able to work with patients independently. The Agency offered Complainant clinical work with supervision which would allow her to gain the experience needed to obtain full privileges. She declined. At another point, it offered her work maintaining accurate and current notes for mental health records and reports and providing documentation services in the electronic health record under the technical supervision of a licensed provided for the intensive outpatient clinic - with the later work counting toward clinical experience. Complainant presumably declined. In December 2019, sometime after Complainant filed a petition seeking enforcement of the Commission’s order in its appellate decision in Appeal No. 0720180030, the Commission docketed EEOC Petition No. 2020001434. She argued, in part, that the Agency did not comply with the Commission’s order to provide her privileges. We find that issues 1 - 3 all regard which party is correctly interpreting the Commission’s prior order on privileges. We will address the interpretation of the Commission’s order is in EEOC Petition 2020001434, a petition for enforcement currently pending, and not through a separate EEO complaint. The Commission has a policy of considering reprisal claims with a broad view of coverage. See Carroll v. Dep’t of the Army, EEOC Request No. 05970939 (Apr. 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 Enforcement Guidance on Retaliation and Related Issues, Section B.1 (OLC Control No. EEOC-CVG-2016-1) (Aug. 25, 2015) (available at eeoc.gov). Issue 4 concerns some late payments on Petitioner’s invoices. The Agency contends this occurred for administrative reasons. In any event, based on the late payments that have occurred thus far, we find that they are not sufficient to state a viable retaliation claim. The dismissal of Complainant’s two complaints is AFFIRMED, albeit for different reasons than set forth in the FADs. 2020002893 & 2020002998 4 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 (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. 2020002893 & 2020002998 5 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 13, 2020 Date