[Redacted], Harroll Ingram, 1 Complainant,v.Christine Wormuth, Secretary, Department of the Army, Agency.

Equal Employment Opportunity Commission

Feb 8, 2023

Appeal No. 2022002844 (E.E.O.C. Feb. 8, 2023)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Harroll Ingram,1 Complainant, v. Christine Wormuth, Secretary, Department of the Army, Agency. Request No. 2022005146 Appeal No. 2022002844 Hearing No. 510-2019-00390X Agency No. ARPEOSTRI18MAR01210 DECISION ON REQUEST FOR RECONSIDERATION Complainant requested that the Equal Employment Opportunity Commission (EEOC or Commission) reconsider its decision in Harroll Ingram v. Dep’t of the Army, EEOC Appeal No. 2022002844 (Aug. 22, 2022). EEOC Regulations provide that the Commission may, in its discretion, grant a request to reconsider any previous Commission decision issued pursuant to 29 C.F.R. § 1614.405(a), where the requesting party demonstrates 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. See 29 C.F.R. § 1614.405(c). The record indicates that on April 18, 2018, Complainant filed an EEO complaint alleging discrimination based on disability and in reprisal for prior protected EEO activity when: 1. Complainant became aware on March 28, 2018, that in 2012, an Attorney-Advisor provided an unredacted copy of Complainant’s 2011 EEO complaint to several employees; and 1 The Commission typically uses pseudonyms in lieu of complainants’ real names when publishing its decisions. In this instance, however, Complainant requested that his real name be used. 2022005146 2 2. On March 28, 2018, a Lead Engineer uploaded Complainant’s 2011 EEO investigative file onto a shared intranet to which other Program Executive Office for Simulation, Training, and Instrumentation employees had access. Complainant requested a hearing before an EEOC Administrative Judge (AJ). The AJ held a hearing and subsequently issued a decision in favor of Complainant. Specifically, the AJ found that the Attorney-Advisor (described in claim 1) violated Complainant’s rights when she emailed his unredacted April 2011 EEO complaint, including his Social Security number, his contact information such as home and cell phone numbers, his medical information, and other sensitive information concerning his Leaders, to a number of his coworkers, including the Lead Engineer (described in claim 2). The AJ also found that the Lead Engineer, who uploaded the complaint received from the Attorney-Advisor to the Agency’s common share-drive, also violated Complainant’s rights. In conclusion, the AJ found that Complainant established that he was subjected to a per se violation of the Rehabilitation Act and Title VII. Based on Complainant’s and his mother’s testimonies, the AJ awarded Complainant $2,000.00 in nonpecuniary, compensatory damages. The AJ also awarded $10,262.50 in attorney’s fees. The Agency subsequently issued a final order adopting the AJ’s decision and the relief ordered. Complainant appealed, and the Commission’s prior decision affirmed the Agency’s final order. In his request, Complainant, reiterating arguments he previously made, contends that the award of $2,000.00 in nonpecuniary, compensatory damages was inadequate and asks for an increased award, without providing a specific amount. Complainant, other than his mere statement, provides no evidence to warrant granting his request. Complainant does not dispute any other relief in the Agency’s final order, which adopted the AJ’s Order. The Commission emphasizes that a request for reconsideration is not a second appeal to the Commission. Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110) (Aug. 5, 2015), at 9- 18; see, e.g., Lopez v. Dep't of Agric., EEOC Request No. 0520070736 (Aug. 20, 2007). Rather, a reconsideration request is an opportunity to demonstrate that the appellate decision involved a clearly erroneous interpretation of material fact or law, or will have a substantial impact on the policies, practices, or operations of the Agency. Complainant has not done so here. After reviewing the previous decision and the entire record, the Commission finds that the request fails to meet the criteria of 29 C.F.R. § 1614.405(c), and it is the decision of the Commission to deny the request. The decision in EEOC Appeal No. 2022002844 remains the Commission's decision. The Agency shall implement the Order as stated herein to the extent that it has not yet complied.2 There is no further right of administrative appeal on the decision of the Commission on this request. 2 We note that the Commission’s prior decision inadvertently neglected to include the AJ’s Order as adopted by the Agency. The Order Posting Notice is included herein accordingly. 2022005146 3 ORDER The Agency, to the extent that it has not yet done so, shall take the following remedial actions: 1. Within 60 days of the date this decision is issued, the Agency shall inquire with the other recipients of Complainant’s unredacted EEO complaint at issue and ensure that this document has been expunged from any and all computer drives, backups, cloud storage, or any other digital media. If there are any paper copies retained by those recipients, those shall be destroyed. Any copies of this document should be retained only in a secure location within the Agency’s EEO department. 2. Within 60 days of the date this decision is issued, the Agency shall compensate Complainant in the amount of $2,000.00 for nonpecuniary, compensatory damages. 3. Within 30 days of the date this decision is issued, the Agency shall reimburse Complainant for attorneys’ fees in the amount of $10,262.50. 4. The Agency is directed to conduct training with the Agency’s legal unit, including all attorneys, paralegals, law clerks, and paralegal staff, regarding the requirements for document protection and privacy under the Rehabilitation Act and Title VII, including protecting medical information, personally identifiable information, and EEO complaint information from improper disclosure. This training shall be conducted no later than 90 days from the date of this Order. 5. The Agency is directed to conduct training for the Lead Engineer (identified in this decision) regarding the requirements for document protection and privacy under the Rehabilitation Act and Title VII, including protecting medical information, personally identifiable information, and EEO complaint information from improper disclosure. This training shall be conducted no later than 90 days from the date of this Order. 6. The Agency is directed to instruct their Office of Information Technology (OIT) that Agency staff should be notified in the future that any backup of private medical, EEO, or other personally identifiable information to a common drive should be avoided. This direction shall be provided to their OIT personnel no later than 30 days from the date of this Order. POSTING ORDER (G0617) The Agency is ordered to post at its Program Executive Office for Simulation, Training, and Instrumentation in Orlando, Florida facility copies of the attached notice. Copies of the notice, after being signed by the Agency's duly authorized representative, shall be posted both in hard copy and electronic format by the Agency within 30 calendar days of the date this decision was issued, and shall remain posted for 60 consecutive days, in conspicuous places, including all 2022005146 4 places where notices to employees are customarily posted. The Agency shall take reasonable steps to ensure that said notices are not altered, defaced, or covered by any other material. The original signed notice is to be submitted to the Compliance Officer as directed in the paragraph entitled "Implementation of the Commission's Decision," within 10 calendar days of the expiration of the posting period. The report must be in digital format and must be submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). IMPLEMENTATION OF THE COMMISSION’S DECISION (K0719) 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. Failure by an agency to either file a compliance report or implement any of the orders set forth in this decision, without good cause shown, may result in the referral of this matter to the Office of Special Counsel pursuant to 29 C.F.R. § 1614.503(f) for enforcement by that agency. COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (P0610) This decision of the Commission is final, and there is no further right of administrative appeal from the Commission’s decision. 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. 2022005146 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 February 8, 2023 Date