Tena C.,1 Complainant,v.R. Alexander Acosta, Secretary, Department of Labor, Agency.

Equal Employment Opportunity Commission

Feb 15, 2018

0120160288 (E.E.O.C. Feb. 15, 2018)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Tena C.,1
Complainant,

v.

R. Alexander Acosta,
Secretary,
Department of Labor,
Agency.

Appeal No. 0120160288

Hearing No. 443-2014-00153X

Agency No. CRC-13-05-100

DECISION

The Equal Employment Opportunity Commission (EEOC or Commission) accepts
Complainant’s appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s September 21,
2015 final decision concerning her equal employment opportunity (EEO) complaint alleging
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 the Age Discrimination in Employment Act of 1967
(ADEA), as amended, 29 U.S.C. § 621 et seq.

Complainant worked as an Equal Opportunity Assistant at the Agency’s District Office in
Milwaukee, Wisconsin. On June 7, 2013, Complainant filed a formal complaint alleging that the
Agency discriminated against her on the bases of age (62) and reprisal (prior protected EEO
activity) when:

1. On October 10, 2012, the District Director specifically stated that she would fire
Complainant;

2. Around February 8, 2013, and shortly after March 12, 2013, Complainant was
assigned additional duties without being trained;

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.
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3. From February 4 through February 14, 2013, the Assistant District Director
harassed Complainant after her Family Medical Leave Act information was
disclosed to her coworkers;

4. On March 10, 2013, the District Director gave Complainant the middle finger by
placing her hand behind her back and placing it upon her buttocks as she walked
into the copy room;

5. On March 10, 2013, the District Director spoke to Complainant in a harsh and
unprofessional tone;

6. On September 16, 2013, the Assistant District Director whispered things
concerning her complaints;

7. On December 16, 2013, Complainant received a notice of proposed removal; and

8. On a continuous basis, the Assistant District Director had commented that
Complainant was committing suicide and that she was homicidal.

The Agency processed the complaint and ultimately issued a final decision in which it
concluded:

Complainant established that the Agency violated the Rehabilitation Act when an
Agency official disclosed the diagnosis of her medical condition in an email to
Complainant’s colleagues (Claim No. 3). Complainant failed to establish that she
was subjected to disparate treatment or a hostile environment based on her age or
in reprisal for her prior EEO activity.

In a statement of relief, the Agency:

1. authorized awards of compensatory damages and attorney’s fees;

2. ordered the posting of notice that discrimination had been found at the Milwaukee
District Office;

3. ordered that appropriate corrective actions be taken to prevent future occurrences;

4. directed that the District Office consider whether to take disciplinary action against the
officials found to have violated the Rehabilitation Act; and

5. directed that a compliance report be submitted to the Agency’s Director of the Civil
Rights Center.

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On October 16, 2015, Complainant appealed that portion of the Agency’s final decision finding
no discrimination with respect to all of the incidents, other than incident (3).

While Complainant’s EEO complaint was being processed by the Agency, Complainant was
issued a notice of removal, effective February 28, 2014. She appealed her termination to the
Merit Systems Protection Board (MSPB), which assigned her case the MSPB docket number
CH-0752-150686-1.

The parties subsequently entered into settlement discussions before the MSPB which covered
both MSPB No. CH-0752-150686-1 and Agency No. CRC-13-05-100. In a letter to the
Commission dated June 2, 2016, the Agency stated:

This is to acknowledge that on May 31, 2016, the [Agency’s] Civil Rights Center
received notice that Complainant and the Agency resolved the remaining
allegations on appeal with your office within a settlement before the Merit
Systems Protection Board [MSPB]. Accordingly, we ask that you dismiss this
appeal as the parties now consider this matter to be closed.

The settlement agreement in question provided, in pertinent part, for the payment of
compensatory damages and attorney’s fees with respect to the matters covered by the agreement.
The agreement also provided that Complainant’s removal, effective February 28, 2014, be
changed to a voluntary resignation. Complainant signed the settlement agreement on May 7,
2016, and the Agency’s representative signed it on May 16, 2016.

On June 9, 2016, the Agency informed the Commission:

We are retransmitting the settlement agreement that was reached between
Complainant and the Agency, and approved by an Administrative Judge of the
Merit Systems Protection Board on May 31, 2016. The settlement agreement
disposed of all of the issues in CRC-13-05-100 save for issue no. 3.

As Complainant has settled her EEO complaint as it pertains to incidents (1), (2), and (4) through
(8), we will consider that portion of Agency No. CRC-13-05-100 to have been withdrawn, and
accordingly, we will not address it here. As to incident (3), where the Agency found that it
violated the Rehabilitation Act when an Agency official disclosed the diagnosis of
Complainant’s medical condition in an email to Complainant’s colleagues, we will enter an order
directing the Agency to provide Complainant with the relief it had authorized pursuant to its
finding of unlawful disclosure of confidential medical information, to the extent that it has not
already done so.

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ORDER
To the extent that it has not already done so, the Agency is ordered to take the remedial action set
forth in its final decision on Case No. CRC-13-05-100, issued on September 18, 2015 as
modified below:
1. Within ninety (90) calendar days from the date that this decision is issued, the Agency
shall complete a supplemental investigation in order to determine Complainant’s
entitlement to compensatory damages incurred as a result of the Agency’s unlawful
disclosure of confidential medical information as described in incident (3). The Agency
shall afford Complainant the opportunity to submit evidence in support of her claim for
damages within the 90-day time frame, and Complainant shall cooperate with any
additional evidentiary requests made by the Agency. The Agency shall issue
Complainant a decision on her entitlement to compensatory damages with appeal rights.
Within thirty (30) calendar days of the date that the Agency determines the amount of
compensatory damages owed Complainant, the Agency shall pay that amount.
2. Within ninety (90) calendar days from the date that this decision is issued, the Agency
shall issue a determination on Complainant’s entitlement to attorney’s fees incurred in the
processing of incident (3) of this complaint, if any. Complainant shall cooperate in this
determination by submitting attorney’s fees petitions or other objective evidence of her
attorney’s fees.
3. Within ninety (90) calendar days of the date this decision is issued, the Agency shall
provide a minimum of eight hours of in-person or interactive training to personnel within
the District Office in Milwaukee, Wisconsin identified as responsible for the
Rehabilitation Act violation regarding their responsibilities under EEO laws, particularly
with respect to the confidentiality of medical information
.
4. Within sixty (60) calendar days of the date this decision is issued, to the extent that the
responsible management officials identified in Complaint No. CRC-13-05-100 are still
employed at the facility, consider taking appropriate disciplinary action against these
officials. The Commission does not consider training to be disciplinary action. The
Agency shall report its decision to the Compliance Officer. If the Agency decides to take
disciplinary action, it shall identify the action taken. If the Agency decides not to take
disciplinary action, it shall set forth the reason(s) for its decision not to impose discipline.
If the responsible management officials have left the Agency's employ, the Agency shall
furnish documentation of their departure dates.

The Agency is further directed to submit a report of compliance in digital format as provided in
the statement entitled "Implementation of the Commission's Decision." The report shall be
submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Further,
the report must include evidence that the corrective action has been implemented.
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POSTING ORDER (G0617)
The Agency is ordered to post at its District Office in Milwaukee, Wisconsin copies of the
attached notice. Copies of the notice, after being signed by the Agency's duly authorized
representative, shall be posted both in hard copy and electronic format by the Agency within
30 calendar days of the date this decision was issued, and shall remain posted for 60 consecutive
days, in conspicuous places, including all places where notices to employees are customarily
posted. The Agency shall take reasonable steps to ensure that said notices are not altered,
defaced, or covered by any other material. The original signed notice is to be submitted to the
Compliance Officer as directed in the paragraph entitled "Implementation of the Commission's
Decision," within 10 calendar days of the expiration of the posting period. The report must be in
digital format, and must be submitted via the Federal Sector EEO Portal (FedSEP). See 29
C.F.R. § 1614.403(g).
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.
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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,
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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

February 15, 2018
Date