01a45925
09-08-2005
Robert L. Tafoya, Complainant, v. R. James Nicholson, Secretary, Department of Veterans Affairs, Agency.
Robert L. Tafoya v. Department of Veterans Affairs
01A45925
September 8, 2005
.
Robert L. Tafoya,
Complainant,
v.
R. James Nicholson,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01A45925
Agency No. 2003-0501-2004101279
DECISION
Complainant filed a timely appeal with this Commission from the final
agency decision (FAD) dated July 27, 2004, dismissing his 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. In his complaint, complainant alleged that he was subjected
to discrimination on the basis of reprisal for prior EEO activity when
in March 2003,<1> two co-workers accessed complainant's medical records
�as an act of reprisal/harassment.�
The agency dismissed complainant's complaint pursuant to 29 C.F.R. �
1614.107(a)(1) for failure to state a claim. Specifically, the agency
found complainant failed to demonstrate that he suffered a personal loss
or harm with respect to a term, condition, or privilege of employment
resulting from the action being challenged.<2>
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,
� 1614.106(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). To state a claim under the
Commission's regulations, an employee must allege and show an injury
in fact. Specifically, an employee must allege and show a "direct,
personal deprivation at the hands of the employer," that is, a present
and unresolved harm or loss affecting a term, condition, or privilege
of his employment. Id.
Concerning claims of reprisal, EEOC Regulations prohibit reprisal against
an individual for opposing any practice made unlawful by Title VII of
the Civil Rights Act (Title VII) (42 U.S.C. 2000e et seq.), the Age
Discrimination in Employment Act (ADEA) (29 U.S.C. 621 et seq.), the
Equal Pay Act (29 U.S.C. 206(d)), the Rehabilitation Act (29 U.S.C. 791
et seq.), or for participating in any stage of administrative or judicial
proceedings under these statutes. 29 C.F.R. � 1614.101(b).
We find the agency improperly dismissed the complaint pursuant to 29
C.F.R. � 1614.107(a)(1) for failure to state a claim. Under current
Commission policy, claimed retaliatory actions which can be challenged
are not restricted to those which affect a term, condition, or privilege
of employment. The Commission's broad anti-retaliation provisions also
make it unlawful to discriminate against an individual because of his
protected activity. See EEOC Compliance Manual Section 8, "Retaliation;"
No. 915.003 at 8-14 (May 20, 1998). In the instant complaint, complainant
filed an EEO complaint on March 10, 2003. The record reflects that two
employees participating in an agency directed training exercise accessed
the complainant's medical records on March 17, 2003 and March 18, 2003.
Based upon a thorough review of the record, we find a sufficient factual
basis has been alleged to state a claim of reprisal. Therefore, the
Commission finds the agency improperly dismissed the complaint for
failure to state a claim.
Accordingly, we REVERSE the agency's dismissal of the instant
complaint. The complaint is REMANDED to the agency for further processing
in accordance with the ORDER below.
ORDER (E0900)
The agency is ordered to process the remanded claims in accordance with
29 C.F.R. � 1614.108. The agency shall acknowledge to the complainant
that it has received the remanded claims within thirty (30) calendar
days of the date this decision becomes final. 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 becomes final, 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.
A copy of the agency's letter of acknowledgment to complainant and a
copy of the notice that transmits the investigative file and notice of
rights must be sent to the Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)
Compliance with the Commission's corrective action is mandatory.
The agency shall submit its compliance report within thirty (30)
calendar days of the completion of all ordered corrective action. The
report shall be submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. The agency's report must contain supporting
documentation, and the agency must send a copy of all submissions to
the complainant. 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.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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 or within twenty (20) calendar days of
receipt of another party's timely request for reconsideration. See 29
C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for
29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999). All requests
and arguments must be submitted to the Director, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. 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 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 (R0900)
This is a decision requiring the agency to continue its administrative
processing of your complaint. However, if you wish to file a civil
action, you have the right to file such action in an appropriate United
States District Court within ninety (90) calendar days from the date
that you receive this decision. 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 filed your appeal with the
Commission. 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. Filing a civil
action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z1199)
If you decide to file a civil action, and if you do not have or cannot
afford the services of an attorney, you may request that the Court appoint
an attorney to represent you and that the Court permit you to file the
action without payment of fees, costs, or other security. See Title VII
of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.;
the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c).
The grant or denial of the request is within the sole discretion of
the Court. Filing a request for an attorney does not extend your time
in which to file a civil action. Both the request and the civil action
must be filed within the time limits as stated in the paragraph above
("Right to File A Civil Action").
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
September 8, 2005
__________________
Date
1The FAD indicated that the alleged incidents occurred on January 6, 2004.
However, a review of the record reveals that the two employees allegedly
accessed complainant's medical records on March 17, 2003 and March 18,
2003. Complainant claimed to have learned of the incidents on January
6, 2004.
2The FAD noted that complainant had requested that this complaint
be consolidated with agency case #2003-0501-2003101366. The record
reveals that complainant's request to consolidate the two complaints
was ultimately denied.