EEOC Appeal No. 0120160561
11-16-2017
Sherrie M. v. Dep't of the Treasury
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Sherrie M,1
Complainant,
v.
Steven T. Mnuchin,
Secretary,
Department of the Treasury
(Bureau of Engraving and Printing),
Agency.
Appeal No. 0120160561
Hearing No. 570-2014-00388X
Agency No. BEP-130469-F
DECISION
Complainant filed a timely appeal with this Commission from the Agency's final order dated September 14, 2015, adopting an Equal Employment Opportunity Commission (EEOC) Administrative Judge's (AJ) dismissal of 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., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
ISSUE PRESENTED
Whether the AJ's dismissal of the complaint based on untimely EEO counselor contact, mootness, and on a failure to state a cognizable claim was correct?
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Program Analyst within the Agency's Human Resources and Office of Financial Management in Washington, D.C. Complainant initiated EEO Counselor contact on May 17, 2013, and on June 25, 2013, filed a formal complaint in which she alleged that the Agency subjected her to discrimination on the bases of race (African-American), sex (female), disability, and age (born April 2013) when:
1. Management failed to correct her Service Computation Date (SCD) and her past cost of living increases; and
2. The Chief of Human Resources (Chief) disclosed her medical information.
In an investigative statement, Complainant stated that her SCD date was continuously incorrect in records, and she has been incorrectly paid the wrong cost of living adjustment (COLA) pay over the years. Complainant stated that during an April 19, 2013 meeting, she realized the Agency would continue to discriminate against her instead of correcting the actions since 2005 through 2013. Complainant further stated that she believed that the Agency owed her back pay for the COLA and interest for the loss of her COLA, and that the Agency continued to manipulate the amount that she is owed in back pay.
Complainant further stated that her workers' compensation history and records were shared without her permission with those at the aforementioned meeting. She stated that the HR Chief and another agency official have blatantly used or referred to her past disability payments in open meetings in an attempt to lessen the amount of COLA she is owed. Complainant stated that on August 5, 2013, the Office Chief approached her desk to advise her that the Agency had made COLA corrections for the last 25 pay periods, and that she would owe the Agency money.
After the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an AJ. Complainant timely requested a hearing.
On January 9, 2015, the Agency filed a Motion to Dismiss with the AJ, which was granted by the AJ in an Order of Dismissal on September 14, 2015. Specifically, the AJ dismissed claim 1 on the basis that it was initiated by untimely EEO Counselor contact, and apparently, also on the basis that it was moot.2 Regarding claim 2, the AJ dismissed this matter on the grounds that it failed to state a claim because such matters were within the purview of the Privacy Act, Freedom of Information Act (FOIA), and the Health Insurance Portability and Accountability Act (HIPAA), not the EEO process.
CONTENTIONS ON APPEAL
Neither party presents any arguments on appeal.
ANALYSIS AND FINDINGS
Claim 1
EEOC Regulation 29 C.F.R. �1614.107(a)(2) states that the Agency shall dismiss a complaint or a portion of a complaint that fails to comply with the applicable time limits contained in �1614.105, �1614.106 and �1614.204(c), unless the Agency extends the time limits in accordance with �1614.604(c). EEOC Regulation 29 C.F.R. �1614.105(a)(1) provides that an aggrieved person must initiate contact with an EEO Counselor within 45 days of the date of the matter alleged to be discriminatory or, in the case of a personnel action, within 45 days of the effective date of the action.
In this case, Complainant initiated EEO Counselor contact on May 17, 2013. In its Motion for Dismissal, the Agency successfully argued to the AJ that claim 1 was untimely because Complainant had reasonable suspicion of discrimination when she met with HR on December 12, 2012 to discuss miscalculations in her pay, but did not contact an EEO Counselor within 45 days of that meeting. However, in her formal complaint and during the investigation, Complainant alleged that the errors in her pay were ongoing beyond the date of initial Counselor contact and had not yet been rectified by the Agency. In essence, Complainant alleges ongoing pay discrimination with each paycheck she receives.
We note that the Lilly Ledbetter Fair Pay Act of 2009, Pub. L. No. 111-2, 123 Stat. 5, applies to all claims of discrimination in compensation, pending or after May 28, 2007, under Title VII, the Rehabilitation Act, and the Age Discrimination in Employment Act (ADEA). With respect to Title VII claims, Section 3 of the Ledbetter Act provides:
...an unlawful employment practice occurs, with respect to discrimination in compensation in violation of this title, when a discriminatory compensation decision or other practice is adopted, when an individual becomes subject to a discriminatory compensation decision or other practice, or when an individual is affected by application of a discriminatory compensation decision or other practice, including each time wages, benefits, or other compensation is paid, resulting in whole or part from such a decision or other practice.
Here, Complainant is alleging that the Agency's processing errors with respect to her SCD and COLA have resulted in compensation discrimination that is ongoing. We find that Complainant's compensation discrimination claim is timely and dismissal on this basis was improper. See Sharond M. v. Dep't of Justice, EEOC Appeal No. 0120160188 (Jan. 21, 2016) (Counselor contact timely where Complainant alleged Agency's delay resulted in her being owed back pay and that she should be two steps ahead on the pay scale due to the Agency's delay in processing her promotion).
To the extent that the AJ found that claim 1 was moot, EEOC Regulation 29 C.F.R. �1614.107(a)(5) provides that an agency shall dismiss a complaint that is moot. To determine whether the issues raised in complainant's complaint remain in dispute, it must be ascertained (1) if it can be said with assurance that there is no reasonable expectation that the alleged violation will recur, and (2) if the interim relief or events have completely and irrevocably eradicated the effects of the alleged violations. See County of Los Angeles v. Davis, 440 U.S. 625 (1979). When such circumstances exist, no relief is available and no need for a determination of the rights of the parties is presented.
In this case, the Agency successfully argued to the AJ that claim 1 should be dismissed because HR calculated the amount owed to Complainant, Complainant's attorney agreed with the calculations, and payment calculations were processed along with a correction to her SCD. However, upon review, we note that in her complaint and during the investigation, Complainant maintained that the Agency continued to deny her correct COLA back pay. Moreover, although the HR Chief stated that Complainant agreed with the Agency's estimated pay calculations during the April 15, 2013 meeting, the HR Chief also stated that Complainant's attorney directed the Agency not to move forward with the purported corrections until she further notified the Agency, but the Agency subsequently made the corrections without the attorney's notification or endorsement. As such, we cannot find that this matter is moot because the Agency's actions did not eradicate the alleged effects of the alleged discrimination, and we reasonably cannot expect that the alleged violation will not recur.
Further, we note that Complainant requested compensatory damages for this claim. The Commission has held that an agency must address the issue of compensatory damages when a complainant shows objective evidence that she has incurred compensatory damages, and that the damages are related to the alleged discrimination. Jackson v. U.S. Postal Serv., EEOC Appeal No. 01923399 (Nov. 12, 1992), req. for reconsideration denied. EEOC Request No. 05930306 (Feb. 1, 1993). Should Complainant prevail on this complaint, the possibility of an award of compensatory damages exists. See Glover v. U.S. Postal Serv., EEOC Appeal No. 01930696 (Dec. 9, 1993). Because Complainant requested compensatory damages, the AJ should have requested that Complainant provide some objective proof of the alleged damages incurred, as well as objective evidence linking those damages to the adverse actions at issue. See Allen v. U.S. Postal Serv.. EEOC Request No. 05970672 (June 12, 1998); Benton v. Dep't of Def., EEOC Appeal No. 01932422 (Dec. 3, 1993). As the AJ failed to address the issue of compensatory damages, we find that dismissal on the grounds that it was rendered moot was improper. See Rouston v. Nat'l Aeronautics and Space Admin., EEOC Request No. 05970388 (Mar. 18, 1999). Therefore, we find that the AJ improperly dismissed claim 1.
Claim 2
The AJ dismissed claim 2 for failing to state a claim. The Agency successfully argued that Complainant was claiming that her payment history was protected information and improperly disclosed to other Agency employees involved in calculating her COLA pay, which is not a cognizable EEO claim because it is within the purview of the Privacy Act, FOIA, and HIPAA. However, in her formal complaint, Complainant alleged that during the April 19, 2013 meeting, the HR Chief shared the contents of her medical records with those in attendance.
Title I of the Americans with Disabilities Act of 1990 (ADA) requires that all information obtained regarding the medical condition or history of an applicant or employee must be maintained on separate forms and in separate files and must be treated as confidential medical records. 42 U.S.C. �� 12112(d)(3)(B), (4)(C); 29 C.F.R. � 1630.14. These requirements also extend to medical information that an individual voluntarily discloses to an employer. See EEOC Enforcement Guidance on Disability-Related Inquiries and Medical Examinations of Employees under the Americans with Disabilities Act (ADA), No. 915.002, at 4 (July 26, 2000). Here, we find that the Agency improperly dismissed claim 2 pursuant to 29 C.F.R. � 1614.107(a)(1) for failure to state a claim because Complainant's claim, as articulated by Complainant, concerns the Agency's failure to properly maintain her confidential medical records, which states a claim under the Rehabilitation Act. See EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act, No. 915.002 (Oct. 17, 2002).
CONCLUSION
Accordingly, the Commission REVERSES the AJ's dismissal of Complainant's complaint and REMANDS this matter to the AJ for a hearing.
ORDER (E1016)
This complaint is remanded to the hearings unit of the Commission's Washington Field Office for continued processing. Within fifteen (15) calendar days of the date this decision is issued, the Agency shall submit a copy of this decision and, if necessary, the complaint file to the hearings unit of the Washington Field Office. The Agency shall provide written notification to the Compliance Officer at the address set forth below that the complaint file has been transmitted to the hearings unit or that the hearings unit has retained copies of the complaint file that was previously transmitted.
The AJ shall process the two complaints as reframed in Exhibit A to her Order Granting Complainant's Motion to Amend in Part dated December 29, 2016 and reproduced above, with the exception of incident (7). That portion of Complainant's claim encompassing incident (7) shall be dismissed. Thereafter, the Administrative Judge shall issue a decision on the two complaints in accordance with 29 C.F.R. � 1614.109 and the Agency shall issue a new final action in accordance with 29 C.F.R. � 1614.110.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0617)
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 in the digital format required by the Commission, and submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. � 1614.403(g). 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 (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. 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 (R0610)
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 (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
11-16-2017
__________________
Date
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 The Agency's Motion does not specify the alternative regulatory grounds on which it is arguing for dismissal of claim 1. The lack of clarity for this alternative basis of dismissal is compounded by the fact that the AJ granted the Agency's Motion for Dismissal without any independent analysis. However, the Agency's reasoning is consistent with the analysis for mootness.
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