0120142745
04-12-2016
Dinah L.,1 Complainant, v. Eric Fanning, Acting Secretary, Department of the Army, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Dinah L.,1
Complainant,
v.
Eric Fanning,
Acting Secretary,
Department of the Army,
Agency.
Appeal No. 0120142745
Agency No. ARCEJACK14MAY01687
DECISION
Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from a final Agency decision (FAD) dated June 18, 2014, 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 (Complaint 2), Complainant worked as an Equal Employment Opportunity (EEO) Director, Disability Program Manager at the Agency's U.S. Army Garrision Yongsan, in South Korea.
On June 12, 2014, Complainant filed Complaint 2 alleging that the Agency discriminated against her based on her race (African-American), sex (female), color (Black), and reprisal for prior protected EEO activity under Title VII when in response to an annual background check the US Army Investigation Command (CID) issued a memorandum dated April 3, 2014, about the disposition of a criminal investigation on her starting in 2003, containing false information.
In 2006, Complainant filed a civil action against the Agency in the United States District Court for the Northern District of Georgia, Case 1:06-cv-02485. On March 20, 2009, the Court issued a merit judgment against Complainant on her claim that she was discriminated against in violation of Title VII when beginning in 2002, she became subject to multiple investigations regarding allege travel improprieties - including a 15-6 investigation and later being referred in 2003 to CID for investigation. The Court found that Complainant did not rebut the Agency's legitimate nondiscriminatory reason - a General requested the 15-6 and criminal investigation because each review of Complainant's travel vouchers revealed more irregularities indicative of potential voucher fraud. In response to Complainant's contention that the criminal charges were dismissed in June 2006, the Court found that the fact that no criminal wrongdoing was unearthed by the investigation did not show the General's decision to refer the matter for investigation was based on retaliatory motives, particularly given the undisputed evidence that numerous irregularities were detected in Complainant's travel vouchers by several sources prior to the criminal referral. On appeal, in 2010, the United States Court of Appeals for the Eleventh Circuit affirmed.
By memorandum dated January 18, 2012, CID reported, allegedly in response to a background check after Complainant sought to be part of the Agency's Sexual Harassment Program that:
1. Files of the Criminal Intelligence Center, this office revealed the following information...
2. ...[Complainant] Subject of False Claims/False Statements listed in file... 2003-CID.... Incident occurred [in]... 2001.... Disposition: No Action Taken. USACE [United States Corps of Engineers] - South Atlantic Division Commander elected to take no further action as [Complainant] has transferred to another non-DOD Agency.
Complainant filed EEO Complaint 1 in March 2012, alleging discrimination based on her race, sex, and reprisal for prior EEO activity when pursuant to a background review CID issued a memorandum on January 18, 2012, on the disposition of an investigation conducted in 2003 containing false information. The Agency dismissed the complaint on various procedural grounds.
On appeal from Complaint 1, Complainant argued that anytime she seeks a position that requires a clearance, a background check is conducted and CID will respond as above, and as a result she was prevented from being considered for the Army Sexual Harassment Program. She argued the response was false because no wrongdoing was found and she did not transfer from the Agency until February 20072 (she later returned at some point). She argued that the erroneous information should be removed from the CID report. According to the Court decision, the General testified that he believed the CID investigation was still pending in 2004.
Complainant wrote in the above appeal that in connection with her travel, criminal charges were filed against her in June 2003 in the United States District Court, and the Department of Justice filed a motion to dismiss them in June 2006. She continued that the CID investigation resulted in no findings of any wrongdoing. She complained that she never received the results of the CID and other travel investigations - but at another point therein wrote she knew the results thereof.
In EEOC Appeal No. 0120122538 (April 11, 2014), the Commission dismissed Complainant's appeal from Complaint 1 on the grounds that it was untimely filed.
In response to an annual background check, by memorandum dated April 3, 2014, CID responded:
1. A check of the U.S. Army Crime Records Center (CRC), Quantico, VA, revealed the following information pertaining to [Complainant]:
(1) Subject of False Claims/False Statements listed in file ...2003-CID... Incident occurred from... January 2001 to... December 2002.... Disposition: False Claims (No Action Taken), False Statements (No Action Taken). USACE - South Atlantic Division Commander elected to take no further action as [Complainant] has transferred to another non-DOD agency.
Complainant filed Complaint 2 regarding this memorandum, claiming it contained false information.
The Agency dismissed Complaint 2 on multiple grounds. First, it found that it was identical to Complaint 1. 29 C.F.R. � 1614.107(a)(1). Second, it found that information contained in CID data files is not within the purview of the EEOC, and any disputes on records of this nature should be addressed to its Freedom of Information/Privacy Act Division. Third, it found that Complainant was not harmed - she has not worked for the Agency in over eight years. Fourth, it found that Complainant failed to timely initiate EEO counseling. It found that Complainant was aware of the CID investigation based on allegedly false statements/allegations in 2003, and that CID maintained a record of the investigation, beyond the 45 calendar day time limit. Finally, it found that the allegation of reprisal related to the CID investigation was one of the bases of the civil action referenced above, and hence was to be dismissed pursuant to 29 C.F.R. � 1614.107(a)(3).
On appeal, Complainant writes that the claim about the April 3, 2014, memorandum is her "live claim," and the rest is background information. She contends that the Agency dragged on the (travel) investigations for over five years, never officially closed them in accordance with regulations, and the reason the Agency gave for not imposing discipline is not worthy of belief.
In opposition to the appeal, the Agency argues that it properly dismissed Complaint 2.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. � 1614.107(a)(1), requires, in relevant part, that the Agency shall dismiss an entire complaint that states the same claim that is pending before or has been decided by the Agency or Commission. We disagree that Complaints 1 and 2 state the same claim. Complaint 1 regards a January 2012 negative report by CID in response to a background investigation, and Complaint 2 regards an April 2014 negative report by CID in response to a subsequent separate background investigation.
The Agency argues that CID is merely reporting factual information. For purposes of making a determination on failure to state a claim, we disagree. CIDs' responses reflect that Complainant was criminally investigated for False Statements and False Claims, and leave the impression that the disposition of no action taken occurred because Complainant transferred to a non-DOD agency. Complainant counters that the criminal investigation found no wrongdoing, and this is why no action was taken, not because she transferred to a non-DOD agency. Accordingly, we disagree with the Agency's finding that Complainant was not harmed. This negative response by CID adversely impacts Complainant's career and reputation. Further, Complainant was an employee of the Agency when Complaint 2 arose.
We disagree with the Agency that Complaint 2 fails to state a claim because it was within the purview of the Freedom of Information Act (FOIA)/Privacy Act, or as it argues on appeal, is a collateral attack on the CID investigation. Complainant is alleging that in response to a background investigation, CID reported out false (or misleading) information damaging to her career and reputation, not merely how it is handling records. Further, the live allegation in Complaint 2 concerns CID's allegedly false or misleading report, not its prior criminal investigation of Complainant.
Next, we disagree with the Agency that Complainant failed to timely initiate EEO counseling. She initiated EEO counseling on April 22, 2014, with the 45 calendar time limit of when CID issued its memorandum on April 3, 2014.
As found in Complainant v. Department of the Army, EEOC Appeal No. 0120060966 (Jan. 5, 2007), to the extent that Complainant is alleging that the investigations into her travel, including the 15-6 and criminal investigations were discriminatory, these matters must be dismissed because she filed a civil action on the same matter. Further, the Court found no discrimination on this matter. But the live investigation in Complaint 2 regards the April 3, 2014, negative report by CID in response to a background investigation, a matter not covered by the civil action or by prior EEO complaints.
Accordingly, the FAD is REVERSED.
ORDER
The Agency is ordered to process the remanded claim 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 becomes final. 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 becomes final, 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 (K0610)
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 77960, Washington, DC 20013. 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 (M0815)
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), 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, P.O. Box 77960, Washington, DC 20013. 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 (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
April 12, 2016
__________________
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 She transferred to the Department of Health and Human Services, Centers for Disease Control and Prevention.
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