[Redacted], Lorita A., 1 Complainant,v.Lloyd J. Austin III, Secretary, Department of Defense (Office of the Secretary of Defense), Agency.

Equal Employment Opportunity Commission

Nov 29, 2021

Appeal No. 2021004328 (E.E.O.C. Nov. 29, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Lorita A.,1 Complainant, v. Lloyd J. Austin III, Secretary, Department of Defense (Office of the Secretary of Defense), Agency. Appeal No. 2021004328 Hearing No. 570-2019-00533X Agency No. 2018-DLSA-030 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's final order dated July 6, 2021, dismissing a formal 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., 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 the events at issue, Complainant was a former employee of the Agency who had worked as a Speech/Language Pathologist at the Defense Education Activity’s (DoDEA) elementary and middle schools in Sembach, Germany. Before filing the instant complaint, Complainant had filed a prior EEO complaint (identified as Agency No. EU-FY08-044) alleging a discriminatory hostile work environment and a failure to accommodate her disability related to her job with the Sembach schools. While this complaint was being adjudicated, Complainant started the process of applying for disability retirement. 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. 2021004328 2 In support of her application, she submitted a January 2011 physician statement indicating that Complainant had severe, persistent asthma, and that her “employment in a school environment [causes her to] suffer from frequent upper respiratory tract infections due to exposure from children.” The physician noted that Complainant’s condition was “expected to last for at least one year and her condition currently prevents her from completing her job due to inability to maintain a regular work schedule.” Effective November 5, 2011, the Office of Personnel Management approved Complainant’s application for disability retirement and she left the Agency’s employment. In 2016, Complainant and the Agency were still engaged in the adjudication of Agency No. EU- FY08-044, now at the hearing stage, and participated in a number of settlement discussions. During these discussions, Complainant’s attorney made clear that they were seeking back and front pay as requested relief. This resulted in the Agency Attorney initiating, through the Human Resources Director, a September 26, 2016 written Offer of Reemployment to Complainant via her legal counsel. This offer was not in settlement of Agency No. EU-FY08-044 and Complainant was not asked to compromise any claims pending in litigation by accepting the Offer of Reemployment.2 The Agency offered Complainant a Speech/Language Pathologist position at Complainant’s choice of three potential locations with a November 14, 2016 start date. In response to the offer, Complainant’s counsel requested additional information about the offered positions including any reasonable accommodations the Agency was willing to provide Complainant in light of her disability. On October 31, 2016, the Agency informed Complainant’s counsel that the Agency would not assign Complainant to bus and/or playground responsibilities and would continue to engage in the interactive process to discuss other needed accommodations. Complainant’s counsel responded on November 2, 2016, and indicated, among other issues, that Complainant was currently consulting with her treating physician to determine any work restrictions related to her medical condition and their potential impact on the reemployment opportunities. Complainant’s counsel agreed to provide the Agency this updated medical information when it became available. 2 8. On October 11, 2016, Complainant’s attorney sent correspondence to Agency Attorney and referenced the Agency's reemployment offer, recognizing it as an attempt to mitigate damages: [Complainant] also has a claim for front pay. We understand that the Agency is currently attempting to mitigate this economic harm by seeking to reemploy [Complainant] with an accommodation. If those efforts prove unsuccessful, the Agency will continue to owe [Complainant] 100% of her lost salary and benefits until she reaches age 67 (with no offset for the retirement benefits [Complainant] may receive from OPM. 2021004328 3 Months later, on April 5, 2017, Agency Attorney contacted Complainant’s legal counsel indicating that they had still not received any updated information regarding Complainant’s disability and related work restrictions. However, Agency Attorney also noted that she had learned for the first time, after extending the reemployment offer, of the content of the January 2011 documentation from Complainant’s physician submitted in support of her disability retirement claim. She noted that in that documentation the physician stated that Complainant’s employment in a “school environment” resulted in “frequent respiratory tract infections due to exposures to children” that exacerbated her “severe, persistent asthma.” The doctor concluded that Complainant’s “condition is expected to last for at least one year and her condition prevents her from completing her job due to inability to maintain a regular work schedule.” Agency Attorney further noted that Complainant was still receiving disability retirement benefits from her asthma condition. Agency Attorney stated that “all educator positions with DoDEA require regular exposure to children/students.” While expressing concerns that Complainant’s condition could be reasonably accommodated in light of this information, Agency Attorney provided Complainant 14 days to submit updated medical documentation for consideration. On April 19, 2017, Complainant’s counsel responded with a letter from Complainant’s current treating physician that concluded that “her pulmonary condition is at the same level as the level she suffered in 2011, and that she remains susceptible to the same limitations.” The physician also indicated that Complainant would need to work in climates that would not aggravate her pulmonary condition and in positions that “do not require her to engage with a large group of children at one time.” The letter identified no specific vacant position with the Agency that Complainant was seeking or would accept. On December 17, 2017, Agency Attorney responded to Complainant’s counsel and stated that the reemployment offer was withdrawn because Complainant had neither identified any “reasonable accommodation” to allow her to perform essential functions of the Speech/Language Pathologist position nor had she identified any available alternative position with the Agency that she could perform within her medical restrictions. On March 15, 2018, Complainant filed the instant formal EEO complaint (identified as Agency No. 2018-DLSA-030) alleging that she was discriminated against based on disability and in reprisal for prior protected EEO activity when, on December 17, 2017, the Agency’s Deputy General Counsel and the General Counsel issued a Withdrawal of Offer of Re-employment letter. After an investigation into the accepted claim, the Agency provided Complainant with a copy of the report of investigation and notice of right to request a hearing before an EEOC Administrative Judge (AJ). Complainant timely requested a hearing. However, on September 9, 2019, the AJ issued a notice of proposed dismissal. After receiving responses from both Complainant and the Agency, the AJ issued a decision on July 1, 2021, dismissing the formal complaint, pursuant to 29 C.F.R. §§ 1614.107. 2021004328 4 The AJ based the dismissal on her finding, in essence, that the complaint failed to state an independent claim of discrimination and/or retaliation because the reemployment offer was “made by the Agency attorney under settlement negotiations and with the intent to have the Agency reduce its backpay and/or front pay in case of a ruling in favor of Complainant” as part of the processing of Complainant’s earlier filed EEO complaint (Agency No. EU-FY08-044). On July 6, 2021, the Agency issued a final order adopting AJ2’s dismissal. The instant appeal followed. Complainant, through counsel, argues that the AJ improperly dismissed the instant complaint. Complainant asserts that AJ inaccurately stated that she received the job offer by the Agency’s attorney as part of a settlement agreement. Complainant explains that the Director of Human Resources offered her the position and the offer was unrelated to any settlement agreement between Complainant and the Agency. Complainant notes, that the job offer was unconditional, did not require her to waive or compromise any elements of her complaints, and the withdrawal letter made no mention that the purpose of the reinstatement was to reduce a potential backpay reward. Complainant asserts that the Agency’s job offer was not made in good faith. Complainant reasons that the Agency made a “Ford” reemployment offer to limit the amount of backpay the Agency would be responsible for providing related to another formal complaint Complainant filed. In Ford Motor Co. v. EEOC, 458 U.S. 219 (1982), the U.S. Supreme Court held that an employer charged with discrimination in hiring under Title VII of the Civil Rights Act of 1964 can toll the continuing accrual of backpay liability under Section 706(g) of Title VII by unconditionally offering the claimant the job previously denied, and is not required to offer seniority retroactive to the date of the alleged discrimination. Consequently, the rejection of an employer’s unconditional offer ends the accrual of potential backpay liability. Here, Complainant asserts that the Agency withdrew the Ford offer out of retaliation after Complainant failed to reject the offer and attempted to cooperatively work with the Agency. In response, the Agency concedes that the AJ incorrectly stated that the job offer was provided as a settlement between Complainant and the Agency. However, the Agency agrees that the reemployment offer was indeed a Ford offer used to mitigate any back or front pay potentially resulting from a finding of liability in Complainant’s previously filed EEO complaint. The Agency argues this Commission has long held that a separate EEO complaint relating to an agency’s legal defense of an existing complaint constitutes an impermissible collateral attack on the other adjudication and thus fails to state an actionable discrimination/retaliation claim. 2021004328 5 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 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. Dep’t of the Air Force, EEOC Request No. 05931049 (April 21, 1994). If complainant cannot establish that s/he is aggrieved, the agency shall dismiss a complaint for failure to state a claim. 29 C.F.R. § 1614.107(a)(1). Here, Complainant had not worked for the Agency for over five years when the job offer was rescinded. While Complainant argues on appeal that she had standing to file an EEO complaint over this matter because she was an “applicant” for employment, we conclude that the weight of the evidence does not support this conclusion. Instead, we find that rather than being an applicant, the offer of reemployment was, in fact, a Ford offer provided by the Agency as part of its legal strategy while defending itself during the hearing process in her prior complaint (Agency No. EU-FY08-044).3 Both parties concede that the September 26, 2016 reemployment offer was an unconditional offer. Additionally, both parties have indicated that the purpose of this offer was to mitigate front and/or backpay liability by the Agency in her earlier complaint. Despite Complainant’s counsel’s statements on appeal, the record reflects that Complainant’s counsel also considered the reemployment offer as a way to mitigate the Agency’s potential liability in Agency No. EU-FY08-044 when he wrote in in an October 11, 2016 letter to the Agency that, “[Complainant] also has a claim for front pay. We understand that the Agency is currently attempting to mitigate this economic harm by seeking to reemploy [Complainant] with an accommodation.” The Commission has long held that an allegation of discrimination and/or unlawful retaliation directly stemming from an agency’s legal defense of a previously filed EEO complaint fails to state an independent actionable claim and is properly dismissed under either 29 C.F.R. § 1614.107(a)(1), as a collateral attack on the adjudicatory processing of the prior complaint, or under 29 C.F.R. § 1614.107(a)(8), as an allegation of dissatisfaction with the processing of the previously filed complaint. See Appleby v. Dept. of the Army, EEOC Appeal No. 01933897 (March 4, 1994) (affirming dismissal of a complaint alleging agency counsel submitted false answers to interrogatory questions); Colonna v. Dept. of the Army, EEOC Appeal No. 01960347 (September 10, 1996) (affirming dismissal of claim concerning agency counsel conduct); Ming- Chiang v. Dept. of the Navy, EEOC Appeal No. 01986508 (August 31, 2001) (failure to state an actionable claim for actions taken by agency counsel in proceedings in an earlier complaint); Virgilio v. Social Security Administration, EEOC Appeal No. 0120172046 (February 8, 2018) 3 It appears that the AJ may have mistakenly indicated the Offer of Reemployment as made “under settlement negotiations.” However, this characterization in her dismissal decision was harmless error as her ultimate dismissal decision was correct. 2021004328 6 (claim of reprisal when Agency counsel breached confidentiality during litigation of previously filed complaint properly dismissed under 1614.107(a)(8)); Nerissa v. Dept. of the Army, EEOC Appeal No. 0120172858 (December 12, 2018) (dismissal appropriate under 1614.107(a)(8) when Agency counsel allegedly withheld evidence during the adjudication of previously filed complaint); Gryder v. Dept. of Transportation, EEOC Appeal No. 0120091598 (June 10, 2010) (absolute privilege for statements made by Agency counsel during judicial or administrative proceeding). See also, Rountree v. Dept. of Agriculture, EEOC Appeal No. 01941906 (July 7, 1995) (damages are not recoverable for injuries resulting from participation in the EEO complaint process), request for reconsideration denied, EEOC Request No. 05950919 (Feb. 15, 1996). In sum, we conclude that the offer of reemployment at issue here was an acceptable litigation strategy on the part of the Agency to limit its potential liability in the adjudication of Agency No. EU-FY08-044. By the same token, its decision to rescind that offer upon obtaining new information was also a defensive move by the Agency in its litigation mode and not an independent employment action by the Agency as an employer. As such, we conclude that the claim was properly dismissed as an independent claim giving rise to a new EEO complaint. Finally, while the offer of reemployment made here was not an offer of settlement, we note that settlement negotiations, including any statements or proposals, are treated as confidential and privileged to facilitate settlement between the parties and cannot form the basis of an independent claim of discrimination. See Green v. United States Postal Service, EEOC Request No. 05980207 (1998) (Complainant alleged he was discriminated against when management withdrew an offer of a supervisory position made during settlement negotiations. The Commission affirmed the dismissal of the allegation for failure to state a claim). We are persuaded by the Agency’s argument that the same rationale that protects actions during settlement negotiations should also be extended to reinstatement offers made in the Ford mitigation context. If withdrawal of a Ford reinstatement offer based on new relevant information is deemed impermissible, agencies may be reluctant to make them in the future. In conclusion, we find the AJ properly dismissed this complaint pursuant to 29 C.F.R. §§ 1614.107(a)(1) and (8). CONCLUSION Accordingly, we AFFIRM the Agency’s final order implementing the AJ’s dismissal of the formal complaint. 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 2021004328 7 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. 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. 2021004328 8 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 November 29, 2021 Date