[Redacted], Joannie V.,1 Complainant,v.John P. Roth, Acting Secretary, Department of the Air Force, Agency.

Equal Employment Opportunity Commission

Jul 27, 2021

Appeal No. 20-2000-0419 (E.E.O.C. Jul. 27, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Joannie V.,1 Complainant, v. John P. Roth, Acting Secretary, Department of the Air Force, Agency. Appeal No. 20-2000-0419 Hearing No. 530-2016-00016X Agency No. 5NILI3004 DECISION On October 21, 2019, 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 September 19, 2019, final order concerning an equal employment opportunity (EEO) complaint claiming 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. The Commission accepts the appeal in accordance with 29 C.F.R. § 1614.405. BACKGROUND In 2005, Complainant worked as a Work/Life Specialist for the Agency’s 305th Mission Support Squadron/Family Support Center at Joint Base McGuire-Dix, McGuire Air Force Base, New Jersey.2 Believing that she was subjected to reprisal for prior protected EEO activity, Complainant filed a formal complaint on June 7, 2013. Specifically, Complainant alleged she was harassed when: 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 Complainant’s employment was terminated on August 30, 2005, based on her failure to participate in a Commander’s Directed Inquiry. 2 2020000419 1. On April 29, 2013, she became aware that the notation “access suspended” was placed in her personnel, security, employment and other career records on August 31, 2005. 2. On or about June 2005, she was falsely charged with security violations, and Lt Col [D], [Individual-B], and/or [Individual-D] intentionally committed fraud by placing security violations in her records on August 31, 2005. 3. On or about June 2005 to present, management intentionally and maliciously placed false information (“access suspended”) in her security, employment, and other career records. After an 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). Complainant timely requested a hearing. On December 18, 2017 a hearing was held on liability, and on June 25, 2018 and July 11, 2018, the AJ held a hearing on damages. In a decision issued on May 20, 2019, the AJ concluded that Complainant was subjected to unlawful reprisal. The AJ determined that Complainant established a prima facie case of reprisal in that Complainant had engaged in prior EEO activity (August 2005 EEO complaint), the Agency officials were aware of this activity, and immediately after her termination “access suspended” was noted in her JPAS file. Further, the AJ noted the temporal proximity between her prior activity (August 3, 2005) and the Agency’s adverse action (August 31, 2005) in establishing a nexus. 3 Turning to the Agency’s proffered legitimate, non-discriminatory reason, the Agency determined that the JPAS entry was simply a mistake, and that whoever placed the notation in the file did not understand the purpose of the system. Similarly, the Agency claimed that its failure to notify Complainant of the notation, as required by Agency regulations, was also a mistake. The AJ, however, found these reasons to be pretextual. The AJ stated that the Agency could not attest to an employee’s actions, when it failed to identify who placed the negative notation in Complainant’s file. Further, given the career sensitivity of the information in the JPAS system, the AJ did not believe that the individual who had access to Complainant’s file did not understand the purpose of the system. The AJ found that the error was not simply a missed key stroke, but that the entry was made by manually selecting and/or typing “access suspended.” 3 The AJ declined to find that a prima facie case of harassment was made. The AJ reasoned that the three alleged acts were not sufficiently severe or pervasive to create a hostile work environment. 3 2020000419 The AJ concluded that the language placed in Complainant’s JPAS file was “detrimental to her subsequent security clearance investigation,” noting that an Army Personnel Security Specialist testified that after accessing Complainant’s file, seeing the “access suspended” and language regarding Complainant’s clearance, she concluded that Complainant was accused of a security violation. Complainant was discharged from the Department of theArmy, effective March 21, 2012, based on her inability to obtain a favorable background check (i.e. the negative comments in Complainant’s JPAS file). The AJ concluded that the Agency’s articulated reasons were pretext for discrimination and its actions were reprisal designed to impede Complainant’s ability to secure future government employment. On August 14, 2019, the AJ issued a decision on damages after hearing from eight witnesses. In light of the nature, severity and duration4 of the harm Complainant was awarded $280,000.00 in non-pecuniary compensatory damages. Complainant was also granted $19,791.97 in pecuniary damages to cover her job-hunting, moving, travel, and storage costs. Over the duration of the case, Complainant was represented by Attorney Crayon, Attorney Graham, and the Federal Practice Group law firm. They were awarded $60,043.00; $3,242.00; and $14,586.15, respectively, in attorney’s fees and costs. The Agency issued a final order, dated October 21, 2019, fully implementing the AJ’s decisions. Complainant filed the instant appeal, seeking an increase in the award granted by the AJ. First, Complainant challenges the AJ’s determination that her terminations by the Department of Veterans Affairs in 2009 and 2001 were not sufficiently related to the Agency’s act of reprisal. Additionally, Complainant reiterates her belief that she is entitled to additional pecuniary damages in the form of back pay, student loan reimbursement, hotels and storage fees. Despite the AJ’s determination that the negative notations were in the JPAS files from August 31, 2005 through June 4, 2018, Complainant requests that the Commission order that all negative notations be removed from not only her JPAS file, but from all other records and files. Similarly, she seeks a complete copy of “all [her] background check related documents indexed in the ANACI5” to allow her “due process,” rather than receiving the documents in a piecemeal fashion from the various agencies, and prevent additional retaliation. ANALYSIS AND FINDINGS Pursuant to 29 C.F.R. § 1614.405(a), all post-hearing factual findings by an AJ will be upheld if supported by substantial evidence in the record. Substantial evidence is defined as “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951) (citation omitted). 4 The retaliatory notations remained in Complainant’s JPAS for approximately thirteen years. 5 Access National Agency Check with Written Inquiries + Credit Check. 4 2020000419 A finding regarding whether or not discriminatory intent existed is a factual finding. See Pullman-Standard Co. v. Swint, 456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a de novo standard of review, whether or not a hearing was held. Prior to her termination from the Army, Complainant was employed, and terminated, by the Department of Veterans Affairs in Atlanta (2009) and Los Angeles (2011). Complainant argued to the AJ that these terminations were also due to the Agency’s retaliatory JPAS statements. The AJ, however, disagreed, and found that the record did not establish a connection between the actions. Further, the AJ noted evidence of several other reasons for her terminations, including Complainant’s own conduct and her allegations that VA employees discriminated against her. We find that these determinations by the AJ are supported by substantial evidence. Although the AJ determined that the negative notations were no longer in Complainant’s JPAS file after June 4, 2018, Complainant requests that the Commission order the removal of all retaliatory notations and false charges not only from the JPAS file, but all other background check systems, records and files. In particular, Complainant references incidents she says were discovered by her recent FOIA request. The events include allegations that she made false reports of child endangerment and sexual assault in 1987, a DUI arrest in 1999, and failure to pay bills in 2002. We decline to do so. Even on their face, these events are in no way related to Complainant’s EEO complaint and the determination that she was retaliated against when negative statements were included in her JPAS in 2005. Similarly, we find Complainant’s efforts to obtain a complete copy of all the documents indexed in the ANACI are misplaced and inappropriate. While she may find an order by the Commission to receive such records would be less labor-intensive than obtaining them herself from the various relevant Agencies, such remedy is unrelated to the finding of reprisal. Notwithstanding the AJ’s overall sizable award, uncontested by the Agency, Complainant seeks additional sums of pecuniary compensatory damages. Her request includes $249,741.38, for the amounts she would have paid against her student loans had she not experienced unemployment resulting from her discriminatory terminations in 2009, 2011 and 2012. As previously discussed, Complainant’s removals in 2009 and 2011, from the VA, were not connected to the Agency’s retaliatory action. Moreover, the AJ considered and denied the student loan amount, reasoning that Complainant received her Ph.D. degree in 2010 and took on the loan prior to her March 2012 termination. Complainant has failed to show that the AJ’s determination is not supported by substantial evidence. As for expenses related to storage facilities and hotels, we find that the AJ’s award sufficiently addressed these out-of-pocket expenses. Without offering any supporting arguments, Complainant also seeks an additional $20,000.00 in non-compensatory damages and an unspecified increase in attorney’s fees and costs. We do not find such modifications are warranted. 5 2020000419 CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we hereby AFFIRM the AJ’s decision on damages. 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). 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. 6 2020000419 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 July 27, 2021 Date