Terrence H.,1 Complainant,v.Robert Wilkie, Secretary, Department of Veterans Affairs (Veterans Health Administration), Agency.

Equal Employment Opportunity Commission

Nov 20, 2018

0120182730 (E.E.O.C. Nov. 20, 2018)

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

Terrence H.,1
Complainant,

v.

Robert Wilkie,
Secretary,
Department of Veterans Affairs
(Veterans Health Administration),
Agency.

Appeal No. 0120182730

Agency No. 200J-0609-2018101978

DECISION

Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or
Commission) from an Agency decision, dated June 15, 2018, dismissing a formal 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. The Commission
accepts the appeal in accordance with 29 C.F.R. § 1614.405.

BACKGROUND

In 2012, Complainant worked as a Hospitalist at the Veterans Administration Medical Center
(VAMC) in Marion, Illinois.

Believing that he was subjected to unlawful discrimination, Complainant initiated the EEO
process. On August 16, 2013, Complainant and the Agency executed a settlement agreement to
resolve the matter (Agency Case No. 2003-0609—2012100797). The agreement provided, in
relevant part, that:

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. The Agency shall remove from Complainant’s Official Personnel File (OPF) the
document (SF-50) that reflects a removal. A resignation shall be documented
(SF-50) in the OPF, effective June 17, 2012. The OPF shall be so revised within
forty-five days of execution of the settlement agreement.

. . .

7. [A]ny response concerning requests for references referred to [Human Resources]
shall be limited to that [Complainant] worked at the VAMC in Marion, Illinois,
with the dates of employment.

. . .

15. [If Complainant believes Agency has breached] Complainant may notify the
Deputy Assistant Secretary for Resolution Management in writing, within thirty
days of the alleged breach.

In 2017, Complainant applied for a position with Verge Health. In October 2017, Verge Health
notified Complainant that when it requested employment verification from the Agency, there
was a discrepancy in the dates given by the VAMC and the dates provided in a 2013 letter of
appointment verification from the facility Director. As a result, Complainant’s new job
orientation ceased. He was also forced to withdraw his credentialing application at Verge Health.

Thereafter, in January 2018, Complainant contacted the Agency regarding the inconsistent dates.
After he failed to receive a response, Complainant states he initiated the EEO process. In March
2018, he also submitted a FOIA request seeking copies of the information the Agency had
provided to Verge Health. Additionally, Complainant obtained a copy of his OPF, and
discovered a handwritten note of his performance pay recommendation and approval form
stating: “removed 12/9/11.”

Believing that the Agency’s actions were due to his prior EEO activity, disability, race and age,
Complainant filed a formal EEO complaint on April 23, 2018. Complainant considered the
Agency’s actions to create a hostile work environment, as well as a violation of the Privacy Act
and FOIA.

On June 15, 2018, the Agency issued the instant final decision. The Agency dismissed the entire
formal complaint for failure to state a claim. The Agency stated that allegations of FOIA or
Privacy Act violations were outside of the EEOC’s jurisdiction. As for the claims regarding the
Agency’s responses to Verge’s employment verification requests, the Agency reasoned that the
matters were “inexplicably linked” to the prior, August 2013 Settlement Agreement.
Complainant was advised to contact the Agency’s Office of Resolution Management for a
determination on an allegation of breach of the settlement agreement.
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Complainant filed the instant appeal.

ANALYSIS AND FINDINGS

As an initial matter, to the extent Complainant claims violations of the Privacy Act or FOIA,
such matters fall outside of the Commission’s jurisdiction. Jurisdiction over alleged violations of
the Privacy Act rests exclusively with United States District Courts. See Story v. United States
Postal Serv., EEOC Appeal No. 01953767 (Oct 18, 1995); Concon v. United States Postal Serv.,
EEOC Appeal No. 01965280 (May 14, 1997) (allegation that Privacy Act violated when a
supervisor allegedly allowed a coworker to read complainant's CA-1 form and coworker
discussed its contents with other employees failed to state a claim because allegation of a Privacy
Act violation is not within the purview of the EEO process); Osborn v. United States Postal
Serv., EEOC Request No. 05950654 (Feb. 15, 1996); see also Complainant v. United States
Postal Serv.,, EEOC Appeal No. 0120161028 (Apr. 19, 2016). The Commission does not have
enforcement authority over the FOIA. Gaines v. Department of the Navy, EEOC Request No.
05970321 (June 12, 1997).

The Agency reasoned that the remainder of the instant formal complaint failed to state a claim
because it was inextricably intertwined with the August 2013 settlement agreement. We
disagree. We acknowledge that the instant formal complaint and the instant formal complaint
and the August 16, 2013 settlement agreement concern Complainant’s departure from the
Agency. However, we nevertheless determine that the subject claims before us go beyond the
specific actions required by the settlement. For example, provision 3 of the agreement requires
the Agency to remove the SF-50 reflecting Complainant’s termination and replace it with a SF-
50 indicating Complainant’s resignation. Here, Complainant does not allege that this action was
not taken. Instead, Complainant argues that a hand-written note on a document revealed his
termination. The agreement did not, for example, require the Agency to remove all references to
his termination. If Complainant were to raise the matter as a breach claim, as suggested by the
Agency, it would have likely concluded that it was in compliance as it was not obligated to take
such action.

Similarly, although the agreement does state, in provision 7, that the Agency shall only confirm
Complainant’s dates of employment with the Agency, Complainant does not assert the Agency
failed to do so. Instead, he argues that the Agency, motivated by discriminatory animus,
provided inconsistent dates to a potential employer. In essence, Complainant has alleged that the
Agency’s response to his potential employer’s request for information was discriminatory.
Generally, a former employee can allege a viable claim of discrimination on the basis of reprisal
regarding a bad reference. See e.g. Bimes v. Dep't. of Defense, EEOC Appeal No. 01990373
(April 13, 1999) (allegation of retaliation involving agency's refusal to provide a former
employee with post-employment letters of reference states a viable claim). Therefore, we find
that the instant complaint states a claim.

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CONCLUSION

The Agency’s final decision to dismiss the formal complaint is REVERSED. The formal
complaint is REMANDED to the Agency for furthering processing in accordance with the
ORDER below.

ORDER (E1016)
The Agency is ordered to process the remanded claims in accordance with 29 C.F.R. § 1614.108
et seq. The Agency shall acknowledge to the Complainant that it has received the remanded
claims within thirty (30) calendar days of the date this decision was issued. 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 was
issued, 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 (K0618)
Under 29 C.F.R. § 1614.405(c) and § 1614.502, compliance with the Commission’s corrective
action is mandatory. Within seven (7) calendar days of the completion of each ordered
corrective action, the Agency shall submit via the Federal Sector EEO Portal (FedSEP)
supporting documents in the digital format required by the Commission, referencing the
compliance docket number under which compliance was being monitored. Once all compliance
is complete, the Agency shall submit via FedSEP a final compliance report in the digital format
required by the Commission. See 29 C.F.R. § 1614.403(g). The Agency’s final report must
contain supporting documentation when previously not uploaded, and the Agency must send a
copy of all submissions to the Complainant and his/her representative.
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.
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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

November 20, 2018
Date