0120171394
09-14-2018
Candi R.,1 Complainant, v. Andrew Wheeler, Acting Administrator, Environmental Protection Agency, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Candi R.,1
Complainant,
v.
Andrew Wheeler,
Acting Administrator,
Environmental Protection Agency,
Agency.
Appeal No. 0120171394
Agency No. 2016-0040-R05
DECISION
On March 8, 2017, Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. � 1614.403(a), from the Agency's January 31, 2017, final decision concerning her equal employment opportunity (EEO) complaint alleging employment discrimination in violation of the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. For the following reasons, the Commission REVERSES the Agency's final decision.
ISSUE PRESENTED
The issue presented is whether Complainant was subjected to discrimination based on reprisal when her confidential EEO information was disclosed to her coworkers on two separate occasions.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as an Associate Regional Counsel, 0905, GS-14, at the Agency's Region 5 Office of Regional Counsel (ORC) in Chicago, Illinois. On August 20, 2015, Complainant filed an EEO complaint alleging age discrimination.
On November 12, 2015, the Region 5 Regional Counsel (RC) sent an email to all ORC attorneys regarding an Associate Deputy Regional Counsel vacancy that contained two attachments (Email 1). The first attachment was the job description for the vacant position. The second attachment was the signed November 10, 2015, affidavit of an ORC Branch Chief (BC) for Complainant's age discrimination complaint. The affidavit included facts pertinent to Complainant's EEO complaint, as well as her personally identifiable information (PII). After several ORC attorneys notified RC that the email attachment contained confidential and private information, an IT Specialist directed all ORC attorneys to delete the email.
On November 12, 2015, Complainant's two union representatives met with RC and the Deputy Regional Counsel regarding Email 1. RC indicated that he had sent a draft of the email and the correct attachments to the Administrative Officer (AO) to distribute on his behalf. AO edited the draft and inadvertently included BC's EEO affidavit, which was saved on her computer. AO stated that she had BC's affidavit saved to her computer because he had asked her to send it to the EEO Investigator investigating Complainant's complaint. According to AO, sending the wrong attachment was "an honest but terrible mistake."
On November 13, 2015, one of Complainant's union representatives (U1) sent an email to the Area Director of the Office of Civil Rights (AD), who is based in Durham, North Carolina, describing the events surrounding Email 1 and asking for advice. On November 18, 2015, AD sent an email to a colleague in the Office of Civil Rights to inform her of Email 1 and included all ORC attorneys on the message (Email 2). The subject line of Email 2 included Complainant's name and the case number of her age discrimination case. The body of Email 2 included U1's November 13, 2015, message, which stated that Email 1 had caused Complainant distress and anxiety. When AD was notified that Email 2 had been distributed to inappropriate recipients, he attempted to recall the message. According to AD, he entered the Region 5 OCR Attorneys group email into the "To:" line of Email 2 to see who had received Email 1 and forgot to remove it before sending the email.
On March 30, 2016, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the basis of reprisal for prior protected EEO activity under the Age Discrimination in Employment Act of 1967 when:
1. On November 12, 2015, RC sent an email to all ORC attorneys that contained confidential information regarding Complainant's prior EEO complaint; and
2. On November 18, 2015, AD sent an email to a colleague and to all ORC attorneys that included confidential information regarding Complainant's prior EEO complaint.
At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). When Complainant did not request a hearing within the time frame provided in 29 C.F.R. � 1614.108(f), the Agency issued a final decision pursuant to 29 C.F.R. � 1614.110(b). The decision concluded that Complainant failed to prove that the Agency subjected her to discrimination as alleged.
In its final decision, the Agency concluded that Complainant failed to establish a prima facie case of reprisal with respect to Email 1 because there was no causal link between AO sending the email on behalf of RC and Complainant's prior protected activity. The Agency found that Complainant established a prima facie case of reprisal with respect to the sending of Email 2. The Agency found that management articulated legitimate, nondiscriminatory reasons for sending both emails, which were that both emails were sent to due errors by AO and by AD. The final decision concluded that Complainant failed to establish that the legitimate, nondiscriminatory reasons provided by management were a pretext designed to mask retaliatory animus.
CONTENTIONS ON APPEAL
On appeal, Complainant contends that she was subjected to retaliation and requests that the Agency's final decision be reversed.
In response to Complainant's appeal, the Agency contends that Complainant has not met her burden of proof because the mistakes made in sending Emails 1 and 2 were unintentional and therefore lack retaliatory motive. The Agency requests that its final decision be affirmed.
ANALYSIS AND FINDINGS
As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. � 1614.110(b), the Agency's decision is subject to de novo review by the Commission. 29 C.F.R. � 1614.405(a). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 9, � VI.A. (Aug. 5, 2015) (explaining that the de novo standard of review "requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker," and that EEOC "review the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, and . . . issue its decision based on the Commission's own assessment of the record and its interpretation of the law").
The statutory anti-retaliation provisions prohibit any adverse treatment that is based on a retaliatory motive and is reasonably likely to deter a reasonable employee from engaging in protected activity. Burlington N. and Santa Fe Ry. Co. v. White, 548 U.S. 53 (2006). On the one hand, petty slights and trivial annoyances are not actionable. On the other, adverse actions or threats to take adverse actions such as reprimands, negative evaluations, and harassment are actionable. EEOC Enforcement Guidance on Retaliation and Related Issues, EEOC Notice 915.004, at II.B.
Further, Agencies have a continuing duty to promote the full realization of equal employment opportunity in their 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 ensure 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." Id. � 1614.102(5). "When a supervisor's behavior has a potentially chilling effect on the use of the EEO process -- the ultimate tool that employees have to enforce equal employment opportunity -- the behavior is a per se violation." Ebony M. v. Dep't of Agriculture, EEOC Appeal No. 0120140153 (Nov. 14, 2017); Ivan V. v. Dep't of Veterans Affairs, EEOC Appeal No. 0120141416 (June 9, 2016).
Given the importance of maintaining "unfettered access to [the] statutory remedial mechanisms" in the anti-retaliation provisions, our cases have found that a broad range of actions can fall into this category. Burlington N. and Santa Fe Ry. Co. v. White, 548 U.S. 53, 64 (2006) (quoting Robinson v. Shell Oil Co., 519 U.S. 337, 346 (1997)). For example, we have held that a supervisor threatening an employee by saying "What goes around, comes around" when discussing an EEO complaint constitutes per se reprisal. Vincent v. U.S. Postal Serv., EEOC Appeal No. 0120072908 (Aug. 3, 2009), request for recon. denied, EEOC Request No. 0520090654 (Dec. 16, 2010). We have also found that a supervisor attempting to counsel an employee against pursuing an EEO complaint "as a friend," even if intended innocently, is per se reprisal. Woolf v. Dep't of Energy, EEOC Appeal No. 0120083727 (June 4, 2009) (violation found when a labor management specialist told the complainant, "as a friend," that her EEO claim would polarize the office).
Similarly, the Commission has held that disclosure of EEO activity by a supervisor to coworkers constitutes per se reprisal. Complainant v. Dep't of Justice, EEOC Appeal No. 0120132430 (July 9, 2015) (reprisal found where a supervisor broadcasted complainant's EEO activity in the presence of coworkers and management). We have also found reprisal where a human resources (HR) employee inadvertently negatively left a message on a complainant's voicemail regarding the settlement of a prior EEO complaint. Complainant v. Dep't of Justice, EEOC Appeal No. 0720120032 (May 1, 2014) (complainant subjected to retaliation when HR employee and coworker inadvertently left message on complainant's work voicemail berating her and using strong language while discussing settlement of complainant's prior EEO complaint).
In the instant case, AO, RC, and AD stated that Emails 1 and 2 containing Complainant's confidential EEO information were sent to her coworkers as a result of unfortunate errors.2 However, we find that the asserted inadvertent nature of these disclosures of Complainant's EEO activity does not negate the fact that sending these emails to all ORC attorneys is reasonably likely to deter an employee from engaging in EEO activity and therefore constitutes reprisal. We find, therefore, that the Agency subjected Complainant to discrimination based on reprisal when her confidential EEO information was disclosed to her coworkers.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we REVERSE the Agency's final decision finding no discrimination and REMAND the matter to the Agency for further processing in accordance with the ORDER below.
ORDER
The Agency is ORDERED to undertake the following remedial actions:
1. Within thirty (30) days of the date this decision is issued, the Agency shall post a notice in accordance with the paragraph entitled "Posting Order."
2. Within ninety (90) days of the date this decision is issued, the Agency shall provide a minimum of eight hours of in-person or interactive EEO training to AO, RD, BC, and AD with a special emphasis on reprisal and improper disclosure of EEO activity.
3. Within sixty (60) days of the date this decision is issued, the Agency shall consider disciplinary action against AO, RD, BC, and AD. The Commission does not consider training to constitute discipline. The Agency shall report its decision to the Compliance Officer. If the Agency decides to take disciplinary action, it shall identify the action taken. If the Agency decides not to take disciplinary action, it shall set forth the reason(s) for its decision. If the responsible management officials have left the Agency's employment, the Agency shall furnish documentation of their departure dates.
4. Within ninety (90) days of the date this decision is issued, the Agency shall undertake a supplemental investigation concerning Complainant's entitlement to compensatory damages and determine the amount of compensatory damages due Complainant in a final decision with appeal rights to the Commission. Within thirty (30) days of the date of the determination of the amount of compensatory damages, the Agency shall pay this amount to Complainant. If there is a dispute regarding the exact amount of compensatory damages, the Agency shall issue a check to Complainant for the undisputed amount. Complainant may petition for enforcement or clarification of the amount in dispute. The petition for clarification or enforcement must be filed with the Compliance Officer, at the address referenced in the statement entitled "Implementation of the Commission's Decision."
The Agency is further directed to submit a report of compliance in digital format as provided in the statement entitled "Implementation of the Commission's Decision." The report shall be submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. � 1614.403(g).
POSTING ORDER (G0617)
The Agency is ordered to post at its Chicago, Illinois, Region 5 Office of Regional Counsel and Durham, North Carolina, Office of Civil Rights facilities 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 is issued, and shall remain posted for 60 consecutive days, in conspicuous places, including all 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).
ATTORNEY'S FEES (H1016)
If Complainant has been represented by an attorney (as defined by 29 C.F.R. � 1614.501(e)(1)(iii)), she is entitled to an award of reasonable attorney's fees incurred in the processing of the complaint. 29 C.F.R. � 1614.501(e). The award of attorney's fees shall be paid by the Agency. The attorney shall submit a verified statement of fees to the Agency -- not to the Equal Employment Opportunity Commission, Office of Federal Operations -- within thirty (30) calendar days of the date this decision was issued. The Agency shall then process the claim for attorney's fees in accordance with 29 C.F.R. � 1614.501.
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
_9/14/18_________________
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 We note that AO erroneously sending BC's EEO affidavit as an attachment to all ORC attorneys could have been avoided if BC had not shared the affidavit related to Complainant's confidential EEO complaint with AO in the first place. Therefore, pursuant to our finding of reprisal, we will order the Agency to provide training to and consider discipline against BC as a responsible management official.
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