[Redacted], Shondra S., 1 Complainant,v.Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency.Download PDFEqual Employment Opportunity CommissionJul 12, 2021Appeal No. 2021003035 (E.E.O.C. Jul. 12, 2021) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Shondra S.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency. Appeal No. 2021003035 Agency No. 200I-0573-2021102399 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's final decision dated April 16, 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. BACKGROUND During the relevant period, Complainant worked as a Management Assistant, GS-8, at the Agency’s N. Florida S. Georgia Veterans Health System in Gainesville, Florida. On March 22, 2021, Complainant filed the instant formal complaint. Complainant claimed that the Agency subjected her to discriminatory harassment based on race, disability, national origin, and in reprisal for prior EEO activity when:2 1. Since filing Department of Labor’s Office of Workers Compensation (OWCP) Program claims in 2009 and afterward, there have been numerous of violations of her privacy from higher grade employees who disclosed protected workers’ compensation information to those who did not need to know, including her Social Security Number, case number, 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 For ease of reference, the Commission has re-numbered Complainant’s claims as claims 1-6. 2021003035 2 address, and health information (internal and outside the VA network). The Privacy Officer investigated and provided a confirmation letter to her. 2. A high official disclosed information from Complainant’s previous EEO settlement. The Privacy Officer investigated and provided a confirmation letter to her. 3. Complainant has fought to retain her current grade after an illegal downgrade from a GS- 8 to a GS-6. 4. Complainant claimed that employees are getting ill physically and mentally, and the Department of Labor needs to investigate the death of the former GEMS Coordinator.3 5. On January 28, 2021, after Complainant sent an email to the Chief, Facilities Management Service and the Deputy Director, she believed that her workstation had been compromised. 6. On February 23, 2021, Complainant was informed by IT Manager that they would be issuing her a new government laptop. The IT Manager and the Information Systems Security Officer (ISSO) informed her that they had never witnessed the malfunction as noted in her desktop. An Agency official advised that he would be conducting an investigation. In its April 16, 2021 final decision, the Agency dismissed claims 1 - 6 for failure to state a claim, pursuant to 29 C.F.R. § 1614.107(a)(1). The Agency also dismissed claim 3 as previously raised with the Merits Systems Protection Board (MSPB), pursuant to 29 C.F.R. § 1614.107(a)(4) The instant appeal followed. ANALYSIS AND FINDINGS Claim Already Raised with MSPB - Claim 3 EEOC Regulation to 29 C.F.R. § 1614.107(a)(4) provides, in pertinent part, that an agency should dismiss a claim where the complainant elected to first raise the same matter in an appeal to the Merit Systems Protection Board (MSPB). Here, the record contains a copy of an Initial Decision by the MSPB, dated August 8, 2012 in MSPB Docket No. AT-0752-12-0667-I-1. Therein, the MSPB noted that Complainant had claimed that the Agency had improperly classified her position. The MSPB determined that Complainant’s appeal was “DISMISSED as withdrawn.” As such, we conclude in claim 3 of the instant EEO complaint that Complainant elected to proceed on the matter first before the MSPB, years prior to pursuing her EEO complaint. 3 The record reflects that the acronym GEMS is the Agency’s case management system. 2021003035 3 Under the Commission’s regulations, even if a complainant withdraws an MSPB appeal, the initial election prevails. See Complainant v. Department of Transportation, EEOC Request No. 0120132962 (December 26, 2013). Therefore, we conclude the Agency correctly dismisses claim 3 of the instant EEO complaint. Failure to State a Claim - Remaining Claims The regulation set forth at 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. Diaz v. Department of the Air Force, EEOC Request No. 05931049 (April 21, 1994). With regard to the remaining claims in her EEO complaint, we affirm the Agency’s dismissal of claim 1 as an improper collateral attack on the Department of Labor’s OWCP process. The Commission has held that an employee cannot use the EEO complaint process to lodge a collateral attack on another adjudicatory proceeding like the OWCP. See Wills v. Dep’t of Def., EEOC Request No. 05970596 (July 30, 1998); Kleinman v. U.S. Postal Serv., EEOC Request No. 05940585 (Sept. 22, 1994); Lingad v. U.S. Postal Serv., EEOC Request No. 05930106 (June 25, 1993). We also affirm the dismissal of claims 2 as an improper attempt to assert a violation of the Privacy Act through the EEO complaint process. We note that the Privacy Act provides an exclusive statutory framework governing the disclosure of identifiable information contained in federal systems of records, and jurisdiction rests exclusively in the United States District Courts. See Bucci v. Dep't of Educ., EEOC Request Nos. 05890289, 05890291 (Apr. 12, 1989). Consequently, the EEO complaint process is not the proper forum to raise an allegation of a Privacy Act violation. In addition, claim 4 and 5 were properly dismissed because, similarly, the Commission does not have jurisdiction over the Department of Labor’s Occupational Safety and Health Administration. This is the adjudicatory body for enforcement of workplace health and safety regulations, not the EEO complaint process. Finally, claim 6 related to purported actions by management informing Complainant she would be sent a new laptop, but they never witnessed the malfunction noted in her desktop. Complainant does not explain how she suffered a personal loss or harm regarding a term, condition or privilege of her employment. To the extent that Complainant is claiming a discriminatory hostile work environment, we find that the event described, even if proven to be true, would not indicate that Complainant has been subjected to harassment that was sufficiently severe or pervasive to alter the conditions of her employment. See Cobb v. Department of the Treasury, EEOC Request No. 05970077 (March 13, 1997). Finally, Complainant has not shown that the alleged claim is likely to deter her or others from pursuing EEO activity. 2021003035 4 CONCLUSION The Agency’s final decision dismissing the formal complaint for the reasons discussed above is AFFIRMED. Because we affirm the Agency’s final decision for the reasons stated above, we will not address alternative dismissal grounds. 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. 2021003035 5 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 12, 2021 Date Copy with citationCopy as parenthetical citation