[Redacted], Maricruz Y., 1 Complainant,v.Chad Wolf, Acting Secretary, Department of Homeland Security, Agency.

Equal Employment Opportunity Commission

Dec 11, 2019

Appeal No. 2020000040 (E.E.O.C. Dec. 11, 2019)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Maricruz Y.,1 Complainant, v. Chad Wolf, Acting Secretary, Department of Homeland Security, Agency. Appeal No. 2020000040 Agency No. HS-HQ-01058-2019 DECISION Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's decision dated August 6, 2019, 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 On April 11, 2019, Complainant filed a formal EEO complaint alleging that the Agency discriminated against her based on disability (Amblyopia and Major Depressive Disorder) and reprisal (2013 EEO complaint2) when: (1) on February 4, 2019, a contract Equal Employment Opportunity (EEO) Assistant (E1) sent a password-protected document containing Complainant’s personally 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 March 19, 2013, Complainant filed an EEO complaint, which the Agency docketed as Agency No. HS-ICE-009192013. That complaint progressed through the federal sector EEO process to an EEOC appeal, which was docketed as Maricruz Y. v. Dep’t of Homeland Security, EEOC Appeal No. 2019000976. That matter is under separate review. 2020000040 2 identifiable information to an incorrect email address.3 Complainant stated that the document contained her name, address, medical/disability information, year of birth, and EEO activity, and that C1 later sent the password to the same incorrect email address. Complainant alleged the disclosure of information was unauthorized. (2) On March 19, 2019, an EEO Investigator/Specialist accessed her information on iComplaints and informed her that her personal information is not protected and everyone in the office has access to it. Complainant alleged that the Agency’s actions violate the Rehabilitation Act and the Privacy Act. In a final decision dated August 6, 2019, the Agency dismissed Complainant’s claim, pursuant to 29 C.F.R. § 1614.107(a)(1), for failure to state a claim. The Agency stated that Complainant was not aggrieved by the alleged actions. Further, the Agency stated that Complainant alleged a violation of the Privacy Act, which should be addressed within that statute’s adjudicatory process. The Agency also stated that Complainant should have raised her concerns about improper processing within the underlying EEO complaint (HS-ICE-009192013). The instant appeal from Complainant followed. On appeal, Complainant stated: (1) the Agency disclosed her medical/disability information, name, address, and age without authorization to a member of the public, and (2) EEO staff without a need-to-know had access to her EEO information. ANALYSIS AND FINDINGS EEOC Regulation 29 C.F.R. § 1614.107(a)(1) provides, in relevant part, that an Agency shall dismiss a complaint that fails to state a claim. 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. See Diaz v. Dep't of the Air Force, EEOC Request No. 05931049 (April 21, 1994). Regarding complainant's claim of reprisal, the Commission has stated that adverse actions need not qualify as “ultimate employment actions” or materially affect the terms and conditions of employment to constitute retaliation. Lindsey v. United States Postal Service, EEOC Request No. 05980410 (November 4, 1999) (citing EEOC Compliance Manual on Retaliation, No. 915.003 (May 20, 1998)). Instead, the statutory retaliation clauses prohibit any adverse treatment that is based upon a retaliatory motive and is reasonably likely to deter the charging party or others from engaging in protected activity. Id. 3 The record reveals that E1 left a character out of the email address. 2020000040 3 The Commission reviews reprisal claims “with a broad view of coverage.” Carroll v. Dep’t of the Army, EEOC Appeal No. 05970939 (April 4, 2000). Under Commission policy, a complainant is protected from any retaliatory discrimination that is “reasonably likely to deter [Complainant or others from engaging in] protected activity.” Id. As to her claim of discrimination based on disability, Complainant alleged the Agency provided medical information to a third party without her authorization. We find that claim alleges a personal deprivation sufficient to render Complainant aggrieved within the meaning of EEOC regulations. EEOC Regulation 29 C.F.R. § 1630.14 provides that medical information obtained concerning a job applicant must be treated as confidential and revealed only in specific instances. That coverage is not limited to an individual with a disability. Based on the above, we find that the Agency improperly dismissed claim (1) for failure to state a claim. Conversely, the action Complainant alleged under (2) does not render her aggrieved within EEOC regulations. Further, to the extent that Complainant claims that the Agency violated her rights under the Privacy Act (5 U.S.C. § 552 (g)(1)), the Commission notes that the Privacy Act provides an exclusive statutory framework governing the disclosure of identifiable information contained in the federal system of records, and jurisdiction rests exclusively in the United States District Courts for matters brought under the provision of the Privacy Act. See Bucci v. Dep’t of Education, EEOC Request Nos. 05890289, 05890290, 05890291 (April 12, 1989). CONCLUSION We MODIFY the Agency's final decision dismissing Complainant's complaint. We REVERSE the Agency’s dismissal of claim (1) and REMAND the matter to the Agency for further processing consistent with this decision and the Order below, and we AFFIRM its dismissal of claim (2). ORDER (E0618) The Agency is ordered to process the remanded claim (Claim 1) 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. As provided in the statement entitled "Implementation of the Commission's Decision,” the Agency must send to the Compliance Officer: 1) a copy of the Agency’s letter of acknowledgment to Complainant, 2) a copy of the Agency’s notice that transmits the investigative file and notice of rights, and 3) either a copy of the complainant’s request for a 2020000040 4 hearing, a copy of complainant’s request for a FAD, or a statement from the agency that it did not receive a response from complainant by the end of the election period. IMPLEMENTATION OF THE COMMISSION’S DECISION (K0719) 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. Failure by an agency to either file a compliance report or implement any of the orders set forth in this decision, without good cause shown, may result in the referral of this matter to the Office of Special Counsel pursuant to 29 C.F.R. § 1614.503(f) for enforcement by that agency. 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. 2020000040 5 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 (T0610) This decision affirms the Agency’s final decision/action in part, but it also requires the Agency to continue its administrative processing of a portion of your complaint. 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 on both that portion of your complaint which the Commission has affirmed and that portion of the complaint which has been remanded for continued administrative processing. 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 your appeal with the Commission, until such time as the Agency issues its final decision on your complaint. 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. 2020000040 6 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 December 11, 2019 Date