01a23882
12-30-2003
Sonya B. Kifer, Complainant, v. Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.
Sonya B. Kifer v. Department of Veterans Affairs
01A23882
December 30, 2003
.
Sonya B. Kifer,
Complainant,
v.
Anthony J. Principi,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01A23882
Agency No. 97-1533
Hearing No. 130-A0-8112X
DECISION
Complainant timely initiated an appeal from a final agency decision
concerning 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.
The record reveals that during the relevant time, complainant was employed
as a Library Technician, GS-1411-06, at the agency's VA Medical Center,
Gulfport Division Patient Library, in Biloxi, Mississippi. Complainant
sought EEO counseling and subsequently filed a formal complaint dated
March 31, 1997, alleging that she was discriminated against on the bases
of sex (female) and in reprisal for prior protected activity when a
former supervisor allegedly continued to retain "private and sensitive
information relating to her previous EEO complaints," and purportedly
retained them in such a manner that former co-workers allegedly were
able to see this material in late 1996 and early 1997.
Complainant further alleged that the agency breached a September 20,
1994 settlement agreement. Specifically, complainant claimed that the
agency improperly maintained her records when the documents should have
been destroyed as agreed upon, thereby breaching the confidentiality
provision of the agreement; and that the agency breached an �oral
agreement� by failing to place her in a "responsible position" that
requires a high level of direct patient contact.<1>
By Notice of Acceptance of a Discrimination Complaint dated May 16, 1997,
the agency informed complainant that her complaint had been accepted
for investigation.
On July 3, 1997, the agency issued a decision finding that the agency did
not breach the settlement agreement of September 20, 1994. The agency
found that the �oral agreement� was not part of the written agreement.
The agency also found that it did not breach the confidentiality provision
because the Medical Center maintained in a notarized statement that the
information regarding the Settlement Agreement had been kept confidential.
By letter to the agency dated October 1, 1997, complainant requested
that her complaint be referred to an EEOC Administrative Judge (AJ)
for a hearing because the agency failed to conduct an investigation of
her complaint within the required 180-day time frame. By letter to the
EEOC Birmingham Hearing Unit dated October 23, 1997, the agency requested
that an EEOC AJ be appointed to complainant's complaint.
By memorandum dated February 25, 1998, the AJ remanded complainant's
complaint to the agency. The AJ stated that a review of the agency's
Notice of Acceptance reflected that not all of complainant's claims
were addressed. Specifically, the AJ noted that complainant's claims
contained references to an alleged breach of the September 20, 1994
settlement agreement.
Following the AJ's February 25, 1998 order, the agency issued complainant
a new Notice of Partial Acceptance/Dismissal of Discrimination complaint
on December 17, 1998. Therein, the agency again accepted complainant's
claim that she was discriminated against on the bases of sex (female) and
in reprisal for prior EEO activity when a former supervisor allegedly
continued to retain "private and sensitive information relating to her
previous EEO complaints," and in such a fashion that several former
co-workers allegedly were able to see this material in late 1996 and early
1997. The agency, however, dismissed complainant's claim that the agency
breached the September 20, 1994 settlement agreement. Specifically, the
agency found that complainant's breach claim involved matters already
decided by the agency. The agency further advised complainant that if
she believed that the agency breached the September 20, 1994 settlement
agreement, she was to notify the agency's EEO Officer in writing within
thirty (30) days of the alleged date of breach.
Following complainant's appeal from the agency's July 3, 1997 finding
of no breach of the September 10, 1994 settlement agreement, the
Commission issued a decision. Therein, the Commission determined
that the �oral agreement� referred to by complainant (regarding being
placed in a �responsible position�) was not part of the record and was
not enforceable. Regarding the agency's purported failure to destroy
certain records, the Commission found that the settlement agreement did
not provide that any records would be destroyed. However, regarding
the purported breach of the confidentiality provision, the Commission
determined that the record did not contain any notarized statement from
the �Medical Center� as determined by the agency. The Commission further
found that the record did not contain the files from the settlement
matters, which the Commission determined were necessary to determine if
the information referred to by complainant constitutes �circumstances
leading up to the settlement� as referred to in provision (8).
The Commission vacated the agency's finding of no breach of the September
20, 1994 settlement agreement, and remanded this matter to the agency.
The agency was ordered to supplement the record with (a) a copy of the
notarized statement referenced in the agency decision of July 3, 1997;
(b) a copy of the files for the EEO matters that were settled; and (c)
evidence addressing whether the documents referred to by complainant are
connected to the settled matters. The Commission ordered the agency to
issue a new decision determining whether the confidentiality provision
(provision (8)) was breached, within sixty days of the date that the
Commission decision became final. Kifer v. Department of Veterans
Affairs, EEOC Appeal No. 01976061 (May 18, 1999).
At the conclusion of the investigation of the instant complaint,
complainant was informed of her right to request a hearing before an
EEOC Administrative Judge or alternatively, to receive a final decision
by the agency. Complainant requested a hearing before an AJ, who issued
an Order and Notice of Intent to Issue a Decision Without a Hearing.
The record reveals that on July 13, 2000, complainant withdrew her
request for a hearing, the AJ therefore returned the case to the agency
for a final agency decision.
In its June 12, 2002 final decision that is the subject of the instant
appeal, the agency dismissed complainant's breach claim as a matter
previously decided by the agency and/or for failure to state a claim
pursuant to 29 C.F.R. � 1614.107(a)(1). According to the agency, the
breach claim concerning the alleged improper maintenance of records on
complainant by a former supervisor was the subject of a finding of no
breach in a decision dated July 3, 1997.
With respect to complainant's claim that her former supervisor allegedly
continued to retain "private and sensitive information relating to
her previous EEO complaints," and allegedly in such a way that former
co-workers allegedly were able to see this material in late 1996 and
early 1997, the agency determined that complainant failed to establish
a prima facie case of sex and retaliation discrimination. Specifically,
the agency determined complainant failed to establish a prima facie case
of discrimination on the basis of reprisal, because her prior complaints
were settled over two years prior to the matters identified in the instant
complaint, and that this time period was too long for an inference of
retaliatory animus. The agency also determined that complainant failed
to establish a prima facie case of discrimination on the basis of sex,
because the evidence reflected that although an agency official was
maintaining records on her, the agency official was also maintaining
similar files on the other current and former Domiciliary Assistants.
Breach claim: September 20, 1994 settlement agreement.
The record reveals that complainant claimed that the agency breached
the September 20, 1994 settlement agreement.
In the instant case, the agency dismissed complainant's breach claim
as a matter previously decided by the agency and/or failure to state
a claim pursuant to 29 C.F.R. � 1614.107(a)(1). The Commission notes
that the agency found no breach in a final decision dated July 3, 1997;
however, the record contains no documentary evidence reflecting the
agency complied with the Commission's orders identified in the May 18,
1999 decision, wherein the Commission vacated the agency's finding of
no breach of provision 8 of the September 20, 1994 settlement agreement.
Accordingly, the agency's final decision dismissing complainant's breach
claim of the September 20, 1994 settlement agreement on the grounds that
it was the subject of an agency decision finding no breach is VACATED.
The matter is REMANDED to the agency for further processing in accordance
with this decision and the ORDER below.
Merits claim
A claim of disparate treatment is examined under the three-part analysis
first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792
(1973). For complainant to prevail, she must first establish a prima
facie case of discrimination by presenting facts that, if unexplained,
reasonably give rise to an inference of discrimination, i.e., that
a prohibited consideration was a factor in the adverse employment
action. See McDonnell Douglas, 411 U.S. at 802; Furnco Construction
Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the agency
to articulate a legitimate, nondiscriminatory reason for its actions. See
Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253
(1981). Once the agency has met its burden, the complainant bears the
ultimate responsibility to persuade the fact finder by a preponderance
of the evidence that the agency acted on the basis of a prohibited
reason. See St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993).
Regarding complainant's claim that her former supervisor allegedly
continued to retain "private and sensitive information relating to
her previous EEO complaints," and allegedly in such a way that former
co-workers allegedly were able to see this material in late 1996 and early
1997, the Commission agrees with the agency's finding that complainant
failed to establish a prima facie case of retaliation. The record
reflects that over two (2) years have passed between complainant's
protected activity and the agency's challenged actions in the instant
case such that a retaliatory motive cannot be inferred.
Further, the Commission determines that the agency properly found that
complainant failed to establish a prima facie case of discrimination
on the basis of sex. The record in this case contains an affidavit,
from complainant's co-worker, also a Domiciliary Assistant. Therein, the
co-worker stated that on two separate occasions he discovered the former
supervisor's drawer was left open and in the file, there were documents
of all Domiciliary Assistant employees, including complainant's file.
Accordingly, the agency's decision finding no discrimination is affirmed.
In summary, the agency's decision finding no discrimination on the merits
claim is AFFIRMED. The agency's decision dismissing the breach claim
is VACATED. The matter is REMANDED to the agency for further processing
in accordance with this decision and the ORDER below.
ORDER
Within thirty (30) calendar days after the date this decision becomes
final the agency is ORDERED to take the following action:
The agency shall supplement the record with evidence clearly showing
that it has complied with provision 8 (confidentiality) of the September
20, 1994 settlement agreement. The supplementation of the record shall
include a copy of the notarized statement referenced in the July 3,
1997 decision; a copy of the files for the EEO matters that were settled;
and evidence addressing whether the documents referred to by complainant
are connected to the settled matters.
Thereafter, the agency shall issue a new decision concerning whether
it breached provision 8 (confidentiality) of the September 20, 1994
settlement agreement.
A copy of the new decision must be sent to the Compliance Officer as
referenced herein.
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 (T0900)
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 (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
December 30, 2003
__________________
Date
1The record reveals that in provision (1)
of the September 20, 1994 settlement agreement, the agency agreed to
reassign complainant from her former position of Domiciliary Assistant,
GS-0303-06, to the position of Library Technician, GS-1411-06, effective
October 2, 1994, at the agency's VA Medical Center in Biloxi, Mississippi.
Provision (8) provided that, except as otherwise required by law, the
agency agrees that its employees involved in these EEO cases will be
bound to confidentiality in regard to the settlement agreement and the
circumstances leading up to the settlement.