Appeal No. 0120181202
08-15-2018
Natalie F,1 Complainant, v. Dr. Mark T. Esper, Secretary, Department of the Army, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Natalie F,1
Complainant,
v.
Dr. Mark T. Esper,
Secretary,
Department of the Army,
Agency.
Appeal No. 0120181202
Agency No. ARMEADE17DEC04591
DECISION
Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's decision dated February 1, 2018, 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. and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.
BACKGROUND
At the time of events giving rise to this complaint, Complainant was a former employee of the Agency's Directorate Family and Morale, Welfare and Recreation DFMWR facility in Fort Meade, Maryland. Complainant had been employed as the Administrative Support Assistant at the Gaffney Fitness Center during 2015. She filed an earlier complaint in July 2015.
On May 25, 2017, she entered a settlement agreement with the Agency which settled her July 2015 EEO complaint. Under the terms of a settlement agreement,2 the Agency would rescind an earlier removal, expunge negative comments from her eOPF and personnel record, and assign Complainant to the position of NAF Administrative Assistant, Pay Band 2. Initially, we note that our decision in Natalie F. v. Department of the Army, EEOC Appeal 0120172900 (January 31, 2018) remains a final decision. The Agency did not seek reconsideration within 30 days of receipt of the decision. A decision issued is final within the meaning of 1614.407 unless a timely request for reconsideration is filed by a party to the case. The Agency did not seek reconsideration.
That final decision in 0120172900 found that the Agency breached the Agreement. As part of our Order of Relief, the Agency was ordered to comply with the Agreement by retroactively placing Complainant in the position of a NAF Administrative Assistant pay band 2, at the same pay as her previous position, retroactive to 30 days after the effective date (May 25, 2017) of the settlement agreement, and to provide her with an appropriate back pay award for the time when she was not paid. We also ordered that, if Complainant needs a reasonable accommodation to perform in this position, the Agency shall engage in an interactive process to determine what accommodation may be necessary. We ordered the Agency to comply with all of the terms of the May 25, 2017 agreement and, moreover, to provide a report detailing its actions. We are reviewing compliance in that matter.
Subsequent to the execution of the Agreement, the Agency took several actions which are now the subject of this new complaint. She made EEO contact on this new complaint on December 1, 2017.
On January 23, 2018, Complainant filed a formal complaint, along with a six page statement, alleging new claims of reprisal for her prior protected EEO activity and discrimination on the bases of disability (lower back) and reprisal. Generally, Complainant filed new claims alleging retaliation when the Agency subjected her to a suitability determination, discontinued her employment and refused to accommodate her with regard to the lifting restriction, and specifically, she alleged ongoing retaliation and discrimination, when:
1. On August 24, 2017, the Agency made a determination that she was unsuitable for employment;
2. After May 25, 2017 and continuing, the Agency failed to rescind the removal and fully expunge her record, which caused her a loss of pay and to be placed in a Leave Without Pay (LWOP) status;
3. The Agency imposed a lifting requirement as a new condition of the job offered under the terms of the Agreement;
4. After the settlement agreement was signed, the Agency subjected her to a Non-Appropriated Fund Instrumentality Employment Inquiry;
5. On an unspecified date, a management official sent a falsified letter to her former supervisors who were named in her prior complaints, asking them for references, even though Complainant had not requested a reference from those two former supervisors and had not applied to work at the CDC I;
6. On an unspecified date, the Agency's solicited derogatory employment references caused her to be subject to the Program Review Board (PRB) inquiry;
7. The Agency improperly relied on the PRB and the Garrison Commanders decision of "Unsuitability," based on the negative references it solicited for Complainant;
8. The Agency subjected her to the requirements of a new applicant background check, instead of recognizing her as an incumbent employee by using the re-verification background check for current employees since her background check as a current employee was valid until the year 2020;
9. The Agency delayed placing/ reassigning her, claiming that there was no position where she could be placed that would comply with the Agreement;
10. On an unspecified date, the Agency provided her with only a redacted copy of the Non-Appropriated Fund Instrumentality Employment Inquiry and refused to provide Complainant with a copy of the negative references that it solicited;
11. The Agency delayed placing her, and / or delayed addressing her request for a reasonable accommodation / disability discrimination claim, after the Agency regarded her as" disabled (unable to lift 40 pounds);
12. The Agency caused her to be without income from February 2016 to June 2017, due to its refusal to place her in the position identified in the Agreement;
13. The Agency failed to provide her with full monetary recovery for all lost back pay, and or leave owed to her due to the Agency's delay in complying with the Commission's Order of relief;
14. The Agency refused to accept her new claims, which she claims to have substantiated in an extensive six-page statement; and
15. The Agency interfered with the EEO process, due to the "combative nature of the EEO Office personnel."
Agency Decision
On February 1, 2018, the Agency issued a final decision dismissing this new complaint, pursuant to 29 C.F.R. � 1614.107(a)(1), for failure to state a claim. The Agency dismissed the complaint, which it characterized as alleging discrimination based on reprisal and disability when "your negotiated settlement agreement was not carried out by Fort Meade staff members." The Agency reasoned that the issues Complainant raised in the new complaint sets forth a matter identical to the one raised in the previous breach complaint. This appeal followed.
CONTENTIONS ON APPEAL
On appeal, Complainant states that the new claims are not the same as the claims presented in her breach claim. She seeks the recovery of monetary and compensatory damages caused by the Agency's actions subsequent to May 25, 2017. The relief she seeks includes the retraction and rescission of the unsuitability determination and any negative statements placed in her eOPF.
In response, the Agency maintains that the complaint states the same claim as her breach claim and should be dismissed.
ANALYSIS AND FINDINGS
Under the regulations set forth at 29 C.F.R. Part 1614, an agency shall accept a complaint from an aggrieved employee or applicant for employment who believes that he or she has been discriminated against by that agency because of race, color, religion, sex, national origin, age, disability, genetic information, or retaliation. See 29 C.F.R. �� 1614.103(a) and 1614.106(a).
The Agency mischaracterizes her claims as stating the same claim as her breach determination. A fair reading of the complaint revealed that Complainant is alleging that she had been subjected to a series of related incidents of retaliation due to her prior EEO activity and alleged disability. All of the new alleged actions occurred after the execution of the settlement agreement.
Our reading of the record reflects that Complainant is now claiming that the Agency took new adverse personal actions against her that damaged her professional reputation, left her without any income, falsely stated that she requested leave without pay, when she had not done so, and interrupted her continued employment when it refused to place her in a suitable position and imposed on her the standards that apply to a new hire, rather than that apply to an on-board employee.
Further, the record before us contains an apparent admission from the Agency Representative in the Agency's Statement of Opposition that the Agency will not comply with the Settlement Agreement, "due to the PRB's decision" which was based on the negative employment references, as well as for Complainant's inability to be able to lift the required 40 pounds. She is also seeking reinstatement, consistent with the terms of a settlement agreement.
This new complaint is separate and apart from the breach determination Natalie F. v. Department of the Army, EEOC Appeal 0120172900 (January 31, 2018). She seeks recovery of relief that goes beyond what we ordered in the breach decision.
In this case, she is alleging that the Agency caused her to be placed on leave without pay, solicited negative references from her former supervisors, subjected her to new-hire procedures although she remained an employee with a valid background clearance, delayed compliance with the settlement agreement, and failed to compensate her for monetary damages, as acts of ongoing retaliation and disability discrimination See Matt B. v. Dep't of the Army, EEOC Appeal No. 0120161336 (May 11, 2016) (the Agency improperly distilled the matters raised in Complainant's formal complaint into a single occurrence when a fair reading of the pre-complaint and formal complaint documents showed that Complainant's complaint addressed a variety of incidents which were sufficient to state a viable claim of discriminatory harassment.).
Inasmuch as Complainant has brought this new complaint, raising new claims of discrimination, which pertain to actions taken after the execution of the Agreement, we find that these are not the same claims as the breach claim. In this case, she also seeks full recovery of any and all monetary losses and compensatory damages caused by the Agency's actions and dilatory compliance. In short, she seeks relief from the ripple effect of these subsequent adverse personnel actions.
We are aware that the issues in our compliance review and these new claims may overlap, but Complainant is seeking recovery for her new claims of retaliation and discrimination based on actions taken (or delays that occurred) after the execution of the settlement agreement that rendered Complainant aggrieved.
In this new case, we find that Complainant has alleged an injury or harm to a term, condition, or privilege of employment for which there is a remedy. See Diaz v. Dep't of the Air Force, EEOC Request No. 05931049 (April 21, 1994). For these reasons, we find that she has stated a claim of retaliation and disability discrimination. Moreover, we note that the Agency has admitted the truth and validity of many of Complainant's new claims.
Upon review, we find that Complainant's complaint was improperly dismissed pursuant to 29 C.F.R. � 1614.107(a)(1) for failure to state a claim.
CONCLUSION
Accordingly, we REVERSE the Agency's final decision dismissing Complainant's January 23, 2018 complaint. We REMAND the complaint 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. 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.
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). Further, the report must include supporting documentation of the Agency's calculation of back pay and other benefits due Complainant, including evidence that the corrective action has been implemented.
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 tends 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
August 15, 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.
2 On May 25, 2017, the Parties entered a settlement Agreement in which the Agency promised to place Complainant in the position of a NAF Administrative Assistance, pay band 2, at the same pay as she received in her previous position and expunge her prior removal and derogatory comments in her OPF. The Commission found that the Agency breached the Agreement and ordered the Agency to comply with the terms of the Agreement. The Commission is reviewing compliance under EEOC No. 0620180307.
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