Sonya B. Kifer, Complainant,v.Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity CommissionDec 30, 2003
01a23882 (E.E.O.C. Dec. 30, 2003)

01a23882

12-30-2003

Sonya B. Kifer, Complainant, v. Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.


Sonya B. Kifer v. Department of Veterans Affairs

01A23882

December 30, 2003

.

Sonya B. Kifer,

Complainant,

v.

Anthony J. Principi,

Secretary,

Department of Veterans Affairs,

Agency.

Appeal No. 01A23882

Agency No. 97-1533

Hearing No. 130-A0-8112X

DECISION

Complainant timely initiated an appeal from a final agency decision

concerning 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 record reveals that during the relevant time, complainant was employed

as a Library Technician, GS-1411-06, at the agency's VA Medical Center,

Gulfport Division Patient Library, in Biloxi, Mississippi. Complainant

sought EEO counseling and subsequently filed a formal complaint dated

March 31, 1997, alleging that she was discriminated against on the bases

of sex (female) and in reprisal for prior protected activity when a

former supervisor allegedly continued to retain "private and sensitive

information relating to her previous EEO complaints," and purportedly

retained them in such a manner that former co-workers allegedly were

able to see this material in late 1996 and early 1997.

Complainant further alleged that the agency breached a September 20,

1994 settlement agreement. Specifically, complainant claimed that the

agency improperly maintained her records when the documents should have

been destroyed as agreed upon, thereby breaching the confidentiality

provision of the agreement; and that the agency breached an �oral

agreement� by failing to place her in a "responsible position" that

requires a high level of direct patient contact.<1>

By Notice of Acceptance of a Discrimination Complaint dated May 16, 1997,

the agency informed complainant that her complaint had been accepted

for investigation.

On July 3, 1997, the agency issued a decision finding that the agency did

not breach the settlement agreement of September 20, 1994. The agency

found that the �oral agreement� was not part of the written agreement.

The agency also found that it did not breach the confidentiality provision

because the Medical Center maintained in a notarized statement that the

information regarding the Settlement Agreement had been kept confidential.

By letter to the agency dated October 1, 1997, complainant requested

that her complaint be referred to an EEOC Administrative Judge (AJ)

for a hearing because the agency failed to conduct an investigation of

her complaint within the required 180-day time frame. By letter to the

EEOC Birmingham Hearing Unit dated October 23, 1997, the agency requested

that an EEOC AJ be appointed to complainant's complaint.

By memorandum dated February 25, 1998, the AJ remanded complainant's

complaint to the agency. The AJ stated that a review of the agency's

Notice of Acceptance reflected that not all of complainant's claims

were addressed. Specifically, the AJ noted that complainant's claims

contained references to an alleged breach of the September 20, 1994

settlement agreement.

Following the AJ's February 25, 1998 order, the agency issued complainant

a new Notice of Partial Acceptance/Dismissal of Discrimination complaint

on December 17, 1998. Therein, the agency again accepted complainant's

claim that she was discriminated against on the bases of sex (female) and

in reprisal for prior EEO activity when a former supervisor allegedly

continued to retain "private and sensitive information relating to her

previous EEO complaints," and in such a fashion that several former

co-workers allegedly were able to see this material in late 1996 and early

1997. The agency, however, dismissed complainant's claim that the agency

breached the September 20, 1994 settlement agreement. Specifically, the

agency found that complainant's breach claim involved matters already

decided by the agency. The agency further advised complainant that if

she believed that the agency breached the September 20, 1994 settlement

agreement, she was to notify the agency's EEO Officer in writing within

thirty (30) days of the alleged date of breach.

Following complainant's appeal from the agency's July 3, 1997 finding

of no breach of the September 10, 1994 settlement agreement, the

Commission issued a decision. Therein, the Commission determined

that the �oral agreement� referred to by complainant (regarding being

placed in a �responsible position�) was not part of the record and was

not enforceable. Regarding the agency's purported failure to destroy

certain records, the Commission found that the settlement agreement did

not provide that any records would be destroyed. However, regarding

the purported breach of the confidentiality provision, the Commission

determined that the record did not contain any notarized statement from

the �Medical Center� as determined by the agency. The Commission further

found that the record did not contain the files from the settlement

matters, which the Commission determined were necessary to determine if

the information referred to by complainant constitutes �circumstances

leading up to the settlement� as referred to in provision (8).

The Commission vacated the agency's finding of no breach of the September

20, 1994 settlement agreement, and remanded this matter to the agency.

The agency was ordered to supplement the record with (a) a copy of the

notarized statement referenced in the agency decision of July 3, 1997;

(b) a copy of the files for the EEO matters that were settled; and (c)

evidence addressing whether the documents referred to by complainant are

connected to the settled matters. The Commission ordered the agency to

issue a new decision determining whether the confidentiality provision

(provision (8)) was breached, within sixty days of the date that the

Commission decision became final. Kifer v. Department of Veterans

Affairs, EEOC Appeal No. 01976061 (May 18, 1999).

At the conclusion of the investigation of the instant complaint,

complainant was informed of her right to request a hearing before an

EEOC Administrative Judge or alternatively, to receive a final decision

by the agency. Complainant requested a hearing before an AJ, who issued

an Order and Notice of Intent to Issue a Decision Without a Hearing.

The record reveals that on July 13, 2000, complainant withdrew her

request for a hearing, the AJ therefore returned the case to the agency

for a final agency decision.

In its June 12, 2002 final decision that is the subject of the instant

appeal, the agency dismissed complainant's breach claim as a matter

previously decided by the agency and/or for failure to state a claim

pursuant to 29 C.F.R. � 1614.107(a)(1). According to the agency, the

breach claim concerning the alleged improper maintenance of records on

complainant by a former supervisor was the subject of a finding of no

breach in a decision dated July 3, 1997.

With respect to complainant's claim that her former supervisor allegedly

continued to retain "private and sensitive information relating to

her previous EEO complaints," and allegedly in such a way that former

co-workers allegedly were able to see this material in late 1996 and

early 1997, the agency determined that complainant failed to establish

a prima facie case of sex and retaliation discrimination. Specifically,

the agency determined complainant failed to establish a prima facie case

of discrimination on the basis of reprisal, because her prior complaints

were settled over two years prior to the matters identified in the instant

complaint, and that this time period was too long for an inference of

retaliatory animus. The agency also determined that complainant failed

to establish a prima facie case of discrimination on the basis of sex,

because the evidence reflected that although an agency official was

maintaining records on her, the agency official was also maintaining

similar files on the other current and former Domiciliary Assistants.

Breach claim: September 20, 1994 settlement agreement.

The record reveals that complainant claimed that the agency breached

the September 20, 1994 settlement agreement.

In the instant case, the agency dismissed complainant's breach claim

as a matter previously decided by the agency and/or failure to state

a claim pursuant to 29 C.F.R. � 1614.107(a)(1). The Commission notes

that the agency found no breach in a final decision dated July 3, 1997;

however, the record contains no documentary evidence reflecting the

agency complied with the Commission's orders identified in the May 18,

1999 decision, wherein the Commission vacated the agency's finding of

no breach of provision 8 of the September 20, 1994 settlement agreement.

Accordingly, the agency's final decision dismissing complainant's breach

claim of the September 20, 1994 settlement agreement on the grounds that

it was the subject of an agency decision finding no breach is VACATED.

The matter is REMANDED to the agency for further processing in accordance

with this decision and the ORDER below.

Merits claim

A claim of disparate treatment is examined under the three-part analysis

first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792

(1973). For complainant to prevail, she must first establish a prima

facie case of discrimination by presenting facts that, if unexplained,

reasonably give rise to an inference of discrimination, i.e., that

a prohibited consideration was a factor in the adverse employment

action. See McDonnell Douglas, 411 U.S. at 802; Furnco Construction

Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the agency

to articulate a legitimate, nondiscriminatory reason for its actions. See

Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253

(1981). Once the agency has met its burden, the complainant bears the

ultimate responsibility to persuade the fact finder by a preponderance

of the evidence that the agency acted on the basis of a prohibited

reason. See St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993).

Regarding complainant's claim that her former supervisor allegedly

continued to retain "private and sensitive information relating to

her previous EEO complaints," and allegedly in such a way that former

co-workers allegedly were able to see this material in late 1996 and early

1997, the Commission agrees with the agency's finding that complainant

failed to establish a prima facie case of retaliation. The record

reflects that over two (2) years have passed between complainant's

protected activity and the agency's challenged actions in the instant

case such that a retaliatory motive cannot be inferred.

Further, the Commission determines that the agency properly found that

complainant failed to establish a prima facie case of discrimination

on the basis of sex. The record in this case contains an affidavit,

from complainant's co-worker, also a Domiciliary Assistant. Therein, the

co-worker stated that on two separate occasions he discovered the former

supervisor's drawer was left open and in the file, there were documents

of all Domiciliary Assistant employees, including complainant's file.

Accordingly, the agency's decision finding no discrimination is affirmed.

In summary, the agency's decision finding no discrimination on the merits

claim is AFFIRMED. The agency's decision dismissing the breach claim

is VACATED. The matter is REMANDED to the agency for further processing

in accordance with this decision and the ORDER below.

ORDER

Within thirty (30) calendar days after the date this decision becomes

final the agency is ORDERED to take the following action:

The agency shall supplement the record with evidence clearly showing

that it has complied with provision 8 (confidentiality) of the September

20, 1994 settlement agreement. The supplementation of the record shall

include a copy of the notarized statement referenced in the July 3,

1997 decision; a copy of the files for the EEO matters that were settled;

and evidence addressing whether the documents referred to by complainant

are connected to the settled matters.

Thereafter, the agency shall issue a new decision concerning whether

it breached provision 8 (confidentiality) of the September 20, 1994

settlement agreement.

A copy of the new decision must be sent to the Compliance Officer as

referenced herein.

IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)

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 submitted to the Compliance Officer, Office of Federal

Operations, Equal Employment Opportunity Commission, P.O. Box 19848,

Washington, D.C. 20036. 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 (M0701)

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), 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 19848,

Washington, D.C. 20036. 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 (T0900)

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 (Z1199)

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 that the Court appoint

an attorney to represent you and that the Court 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 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

December 30, 2003

__________________

Date

1The record reveals that in provision (1)

of the September 20, 1994 settlement agreement, the agency agreed to

reassign complainant from her former position of Domiciliary Assistant,

GS-0303-06, to the position of Library Technician, GS-1411-06, effective

October 2, 1994, at the agency's VA Medical Center in Biloxi, Mississippi.

Provision (8) provided that, except as otherwise required by law, the

agency agrees that its employees involved in these EEO cases will be

bound to confidentiality in regard to the settlement agreement and the

circumstances leading up to the settlement.