[Redacted], Angelica P, 1 Complainant,v.Thomas W. Harker, Acting Secretary, Department of the Navy, Agency.

Equal Employment Opportunity Commission

Jun 22, 2021

Appeal No. 2021001413 (E.E.O.C. Jun. 22, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Angelica P,1 Complainant, v. Thomas W. Harker, Acting Secretary, Department of the Navy, Agency. Appeal No. 2021001413 Agency No. 20-67400-02202 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's decision dated November 25, 2020, dismissing her complaint alleging 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, Complainant worked as the Chief of Non- Appropriated Funds (NAF) Human Resources, at Marine Corps Community Services (MCCS) at Marine Corps Air Station (MCAS) Iwakuni, Japan. On August 18, 2020, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination and/or harassment on the bases of national origin (Venezuelan) and reprisal for prior protected EEO activity when: (1) As evidenced by a sequence of events beginning June 1, 2020, where, under the purported justification of a management inquiry and investigation into financial and accounting operations, she had been singled out and targeted for investigation under the guise of investigating the shrink of the Iwakuni Marine Corps Exchange (MCX) - as set forth in the memorandum, dated 1 June 20, from the Deputy Assistant Chief of 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. 2021001413 2 Staff, Marine Corps Community Services, Marine Corps Installation Pacific - notwithstanding that NAF HRO had nothing to do with the discrepancies and the shrink at the MCX (as identified in the 1 June 20 memorandum); and (2) When, in June 2020, during the course of the investigation, authorized and purportedly justified by the 1 June 20 memorandum, a swarm of six investigators spent tens of man hours over many days meticulously scrutinizing all MCCS Iwakuni Human Resources office records, with very little time, resources or manpower expended by the Agency in conducting an investigation into the matters identified by the 1 June 20 memorandum. Subsequently, Complainant sought to amend her complaint or, alternatively, request pre- complaint counseling. In so doing, she alleged that the Agency subjected her to harassment, discrimination and/or reprisal when: (3) On August 11, 2020, she discovered that, on July 21, 2020, the MCIPAC MCCS ER Supervisor entered the MCCS Iwakuni Human Resources System, PeopleSoft, and accessed Complainant’s information and violated Complainant’s right to privacy and confidentiality; (4) On July 31, 2020, she was notified that she was not selected for the position of Director, Human Resources, NF-0201-05, MCAS Miramar, under Job Posting ID 43802; and (5) On August 4, 2020, the Department of Defense (DoD) Inspector General (IG) emailed Complainant’s supervisor, the MCCS Director, to falsely inform him that Complainant refused to participate in and cooperate in an IG investigation. On September 18, 2020, the Agency issued a Notice of Acceptance indicating that it accepted claims (1), (2), and (3).2 The Agency found that claims (4) and (5) were not “like or related” to the original claim, and, therefore, should be the subject of a separate complaint, pursuant to EEOC Management Directive 110 Chapter 5(III)(B). The Agency advised Complainant to seek counseling regarding claims (4) and (5).3 The Agency dismissed the entire complaint pursuant to 29 C.F.R. § 1614.107(a)(1), for failure to state a claim. The Agency dismissed claims (1) and (2) as impermissible collateral attacks on another proceeding, the “audit/investigation,” noting that such investigations are also a preliminary step towards a personnel action and are, therefore, insufficient to form the basis of an EEO complaint. 2 The Agency summarized the claims when it accepted them. However, Complainant, through counsel, clarified her accepted claims as indicated here. 3 Claims (4) and (5) are not currently before the Commission. 2021001413 3 In dismissing claim (3), the Agency noted that jurisdiction over matters involving such a purported breach of privacy and confidentiality in the federal system of records rests with the United States District Courts.4 The instant appeal followed. On appeal, Complainant argues that the Agency improperly dismissed her claims. In so doing, she presents caselaw that she claims indicates that alleged unlawful discriminatory investigations by an Agency may state a claim and that allegations that management instructed an employee who did not have a “need to know” to access a complainant’s personnel file may state a claim. In response, the Agency argues that it correctly dismissed the claims for failure to state a claim and asks the Commission to affirm its final decision. ANALYSIS AND FINDINGS An agency shall accept a complaint from any 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 or disabling condition. 29 C.F.R. §§ 1614.103, .106(a). The Commission's federal sector case precedent has long defined an "aggrieved employee" as one who suffers a present harm or loss with respect to a term, condition, or privilege of employment for which there is a remedy. Diaz v. Department of the Air Force, EEOC Request No. 05931049 (April 21, 1994). When the complainant does not allege he or she is aggrieved within the meaning of the regulations, the agency shall dismiss the complaint for failure to state a claim pursuant to 29 C.F.R. § 1614.107(a)(1). The Commission has generally held that merely conducting an investigation into purported improper or illegal conduct does not cause any injury without more, such as resulting disciplinary action. See Heard v. Dep't of Justice, EEOC Appeal No. 0120092680 (Aug. 27, 2009) and Shelly v. Dep't of the Treas., EEOC Appeal No. 01996655 (Oct. 27, 2000). It has also applied this rule to the initiation of an internal investigation. See Martin v. Dep't of Justice, EEOC Appeal No. 01A32934 (Sept. 17, 2003). Here, we find that Complainant’s allegations in claims (1) and (2) fail to state a claim. These allegations challenge the internal investigation and its procedures, including challenging how many men and man-hours and how much time and effort the Agency spent on investigating Human Resources. Furthermore, Complainant has not alleged she suffered any disciplinary action or other harm or loss with respect to a term, condition, or privilege of employment as a result of the investigation. Therefore, we find dismissal of these claims was proper. 4 The Agency noted that, on October 26, 2020, Complainant sought to amend the instant complaint with 9 additional claims or, alternatively, to have them accepted for pre-complaint counseling. The Agency referred these matters to the EEO Office for pre-complaint counseling. They are not currently before the Commission. 2021001413 4 We also find that Complainant’s allegations in claim (3) regarding a violation of Complainant’s right to privacy and confidentiality fail to state a claim. Complainant’s allegations in this claim describe a violation of The Privacy Act. The Commission has held that jurisdiction over alleged violations of the Privacy Act rests exclusively with United States District Courts. See Story v. USPS, EEOC Appeal No. 01953767 (October 18, 1995); Concon v. USPS, EEOC Appeal No. 01965280 (May 14, 1997); and Bucci v. Department of Education, EEOC Request No. 05890289 (April 12, 1989). Therefore, we find dismissal of this claim was proper. Accordingly, the Agency's final decision dismissing Complainant's complaint is AFFIRMED. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0920) The Commission may, in its discretion, reconsider this appellate decision if Complainant or the Agency submits a written request that contains arguments or evidence that 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 for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration. A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within 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). Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx Alternatively, Complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, a complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). 2021001413 5 Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless Complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together with the 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 (S0610) 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. 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 (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 June 22, 2021 Date