0120181026
04-27-2018
Lorriane L.,1 Complainant, v. Alex M. Azar II, Secretary, Department of Health and Human Services (Centers for Disease Control and Prevention), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Lorriane L.,1
Complainant,
v.
Alex M. Azar II,
Secretary,
Department of Health and Human Services
(Centers for Disease Control and Prevention),
Agency.
Appeal No. 0120181026
Agency No. HHSCDC01392017
DECISION
Complainant timely appealed to the Equal Employment Opportunity Commission ("EEOC" or "Commission") from the Agency's December 29, 2017 dismissal of 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. and the Age Discrimination in Employment Act of 1967 ("ADEA"), as amended, 29 U.S.C. � 621 et seq.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Public Health Analyst (GS-13) in the Agency's Epidemiology and Statistics Branch in Atlanta, Georgia.
On October 18, 2017, Complainant filed a formal complaint alleging that the Agency subjected her to harassment and discrimination on the bases of race (African American), national origin (Virgin Islands), and age (66) when:
1. on February 1, 2017, the Deputy Branch Chief, Complainant's first level supervisor ("S1"), stated that Complainant had a "communication problem," referring to Complainant's tone, and
2. on January 30, 2017, one of her Core Elements was removed from her PMAP, and S1 did not give her or staff an opportunity to conduct a self-evaluation.
The following like and related claims allege discrimination on the same bases, plus retaliation for engaging in protected EEO activity related to the instant complaint:
3. after filing of this complaint, she was not asked to be the Acting Deputy in S1's absence, a role she had taken previously,
4. on June 2, 2017, she received a certified letter from CDC OEEO notifying her that personal information relating to this case was inadvertently emailed to a local TV station who requested a FOIA,
5. on an unspecified date, S1 sent Complainant's 2017 mid-year evaluation to her personal email address while on extended sick leave, then held onto the document until her return for a PMAP meeting in mid-September, and
6. on unspecified dates, her requests for temporary work details were denied.
The Agency dismissed Complainant's complaint, pursuant to 29 C.F.R. �1614.107(a)(2), for untimely filing of the Formal Complaint.
Claim 4 was alternately dismissed, pursuant to 29 C.F.R. �1614.107(a)(1), for failure to state a claim, as it should have been raised under the Privacy Act.
ANALYSIS AND FINDINGS
Under 29 C.F.R. � 1614.106(b) a written complaint must be filed with an appropriate agency official within 15 calendar days after the date of receipt of the notice of the right to file a formal complaint. An agency shall dismiss a complaint that fails to comply with the 15-day time limit under 29 C.F.R. � 1614.107(a)(2), unless the agency extends the time limits in accordance with � 1614.604(c), which provides that the filing limitation period is subject to waiver, estoppel, and equitable tolling.
Where, as here, there is an issue of timeliness, "[a]n agency always bears the burden of obtaining sufficient information to support a reasoned determination as to timeliness." Guy v. Dep't of Energy, EEOC Request No. 05930703 (Jan. 4, 1994) (quoting Williams v. Dep't of Defense, EEOC Request No. 05920506 (Aug. 25, 1992)). In instances of untimely filing, the Agency must not only demonstrate that the complainant received Notice, but that the Notice clearly informed the complainant of the 15-day deadline to file. See Paoletti v. United States Postal Serv., EEOC Request No. 05950259 (Aug. 17, 1995).
On February 10, 2017, Complainant agreed to pursue Alternative Dispute Resolution ("ADR") to resolve her complaint. Among other things, the agreement provided: "I understand that if mediation is not completed or no resolution is reached within 90 calendar days of my initial contact date, I have a right to file a formal complaint of discrimination. The 90th day from my initial contact date is May 10, 2017." Complainant, an ADR Specialist, and Management engaged in mediation on May 4, 2017.
On May 8, 2017, Complainant received a Notice of Right to File, dated May 4, 2017 from the Agency's EEO Office. The Notice was sent to Complainant's address of record, and her name was in the address line. The body of the Notice recounted Complainant's initial contact with an EEO Counselor, that she alleged discrimination on the bases of "race (black), National Origin (Virgin Islands) and age (66)" and listed Claims 1 and 2 of her complaint, as she had not yet raised Claims 3 through 6. The Notice also explained that Complainant had 15 calendars from the date of receipt to file her Formal Complaint. However, the salutation read "Dear Mr. Norman" which was not Complainant's name.
On May 9, 2017, the ADR Specialist emailed Complainant, explaining that she was in the process of obtaining information from Management to prepare the Resolution Agreement based on the mediation held on May 4, 2017. The ADR Specialist also stated that she would prepare a draft Agreement for Complainant and Management to review.
On May 16, 2017, Complainant sent an email to her EEO Counselor and ADR Specialist with the subject "Certified EEO letter received and is unclear based on Mediation pending resolution." She attached a scanned copy of the Notice and asked for confirmation "that there is no action required by me at this time regarding this letter." The ADR Specialist responded the same day, "I am sure the package was sent to you by mistake. The package has nothing to do with your case." In a separate email to her EEO Counselor, Complainant asked if the Notice was to indicate that a resolution was not reached by mediation and instruct her on the next step in the process, acknowledging the 15-day limitation period. According to Complainant, the EEO Counselor instructed her to shred the Notice during a phone conversation shortly after the May 16, 2017 email. In addition, Complainant provides email evidence that the ADR Specialist was still working with the parties to create a settlement agreement in September 2017.
On September 8, 2017, Complainant notified her EEO Counselor that the ADR Specialist asked her if she received her Notice from the EEO Office, and if so had she completed it. The EEO Counselor responded that his records indicated that Complainant signed for the Notice on May 8, 2017. According to the Agency, the EEO Complaints Manager had multiple phone conversations with Complainant, in which she instructed Complainant to send a copy of the Formal Complaint for processing. However, there is no evidence that the Notice was re-issued.
On October 2, 2017, Complainant notified the EEO Counselor that she intended to retain legal counsel regarding "this EEO matter that has been prolonged by the Agency and [Management] since February 2017. On October 4, 2017, the EEO Complaints Manager responded that Complainant had "not shown [her] anything where [the EEO Counselor] stated to disregard the notice," and the Notice contained all of her information, as well as a copy of the final counseling report with only one mention of the incorrect name. She further indicated that the deadline to file had passed as the incorrect name was not a sufficient reason to "delay contacting me for over three months since you were aware that [the EEO Counselor] was out of the office." The Agency reiterated this argument in its dismissal of the instant complaint.
Ordinarily, the Commission would find the May 4, 2017 Notice and accompanying investigative summary sent to Complainant's address of record, contained sufficient identifying information to trigger the 15-day limitation period, regardless of the incorrect salutation. However, Complainant argues, and we agree that the Agency never "formally closed" her ADR request. Complainant demonstrated due diligence by responding to the Notice within 15 days, informing the EEO Counselor that the outcome of her mediation was still pending. Also, the EEO Counselor never corrected the ADR Specialist's statement that the package was a mistake to be disregarded, even though he was cc'd on the email. As for the three month gap in communication with the EEO Office, Complainant provides email evidence to support that ADR was ongoing through September 2017. Although Complainant had the "right" to file an EEO Complaint if her complaint was not resolved 90 days after signing the ADR agreement, she was not required to do so. Therefore, based on the specific facts of this complaint, we find Complainant's Formal Complaint was timely filed.
We find the Agency properly dismissed Claim 4 on the alternate grounds that it failed to state a claim under 29 C.F.R. �1614.107(a)(1), as it alleged a violation of the Privacy Act, which is outside the authority of the Commission. The Privacy Act provides an exclusive statutory framework governing the disclosure of identifiable information contained in federal systems of records and jurisdiction rests exclusively in the United States District Courts for matters brought under the Privacy Act. See Hongell v. United States Postal Serv., EEOC Appeal No. 01A61124 (May 2, 2006) citing Bucci v. Dep't of Ed., EEOC Request Nos. 05890289, 05890290, 05890291 (April 12,1989). The proper jurisdiction for Privacy Act claims rests with the U.S. District Court. See Lambert v. Soc. Sec. Admin., EEOC Appeal No. 01A15184 (Nov. 26, 2002), reconsideration denied, EEOC Request No. 05A30330 (Feb. 6, 2003).
CONCLUSION
Accordingly, the Agency's final decision dismissing Claim 4 is AFFIRMED.
The Agency's dismissal of Claims 1, 2, 3, 5, and 6 is REVERSED, and hereby REMANDED to the Agency for further processing in accordance with this Decision and the Order below.
ORDER (E1016)
The Agency is ordered to process the remanded claims in accordance with 29 C.F.R. � 1614.108 et seq. The Agency shall acknowledge to the Complainant that it has received the remanded claims within thirty (30) calendar days of the date this decision was issued. 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 was issued, 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 (K0617)
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 in the digital format required by the Commission, and submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. � 1614.403(g). 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 (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
April 27, 2018
__________________
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.
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