U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Zenia M.,1 Complainant, v. Sylvia Mathews Burwell, Secretary, Department of Health and Human Services, Agency. Appeal No. 0120121845 Hearing No. 443-2011-00153X Agency No. HHS-IHS-0355-2009 DECISION Pursuant to 29 C.F.R. § 1614.405, the Commission accepts Complainant's appeal from the Agency's January 23, 2011, 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. For the reasons stated below we AFFIRM in part and REVERSE in part the Agency's final decision. ISSUES PRESENTED The issues presented are whether the Agency properly dismissed Complainant's allegation concerning the processing of her complaints; whether the Agency subjected Complainant to reprisal when her EEO records and e-mails were examined by Agency officials as part of an investigation; and whether she was subjected to harassment when comments were made to her about two workplace disputes she had with other employees. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Medical Support Assistant, GS-6, at the Agency's Memorial Health Care Facility in Belcourt, North Dakota. Complainant indicated that, in or about the week of June 15, 2009, she met with the Chief Executive Officer (CEO) and, while in the CEO's, office noticed documents related to two previous EEO cases in which she was the complainant, which were still pending at that time (HHS-IHS-0212-2007 and HHS-HIS-0050-2009). When she questioned why the documents were there, the CEO indicated that the Privacy Act Coordinator (PAC) had just returned them to her. Complainant recognized these documents as being part of the Reports of Investigation (ROIs) for those cases.2 She maintained that these documents should not have left the ROI files, and that management had no right to view her documents. Complainant also maintained that the CEO and the PAC did not have a need to know or a right to view her documents for privacy violations as they had been sent to the EEO Investigator for the complaints. Complainant contacted the EEO Complaints Manager (EEOCM), who is located in Rockville, Maryland, to ask why he had provided her records to the CEO. The EEOCM maintained that the documents were part of a formal investigation and could be used by management if there was a reason to believe that other issues or violations may exist. Prior to June 2009, Complainant, according to the EEOCM, had submitted over a 1000 pages of e-mail documents as part of her formal complaint. The EEOCM stated that the e-mails became government property and were provided to the Privacy Office due to possible privacy act and HIPPA3 violations. He further stated that there were concerns indicated by management that Complainant was not following the chain of command in some of her communications.4 The EEOCM stated that, once the review was completed, the documents were returned to his jurisdiction. According to the EEOCM, the documents in the Reports of Investigation and other documents that Complainant submitted were generated by her, management, and witnesses on government computers, and could be shared with individuals who had a need to know. He stated that this would include the FBI, OIG, OSC, and the OGC. ROI, Exhibit J. When informed that Complainant claimed that she had been discriminated against when her confidential documents were released, the EEOCM stated: The Complainant has not suffered an injury or harm when management reviewed her submission that I am aware of. As of this writing the Complainant is employed by the Belcourt facility and any loss of employment is speculative. In addition, I would not discriminate against the Complainant since I am responsible for processing her complaints which has been proven by the subject investigation. Id. Complainant also maintained that she was subjected to reprisal when on or about February 2, 2009, she was accused of being in an "e-mail war" with another employee. Complainant maintained that she was simply stating the truth to the coworker but copies of the e-mails were forwarded to the Area Director. The Area Director contacted Complainant's supervisor and informed her that Complainant was engaged in an e-mail war and that the supervisor had to handle the matter. Complainant also alleged that she was subjected to reprisal when the EEOCM contacted the Deputy Area Director and indicated that she was sending e-mails to individuals outside the facility, and that she had sent the EEOCM over 1,000 e-mails. The EEOCM indicated that he was close to labeling her actions "spamming." Complainant claimed that she had been falsely accused as she only sent twenty-seven (27) e-mails to the EEOCM regarding her EEO cases.5 Additionally, Complainant maintained that she was harassed by an agency official when she was asked why she was using the fax machine located in another section and thereafter when the fax transmission receipt was not promptly returned to her. On August 20, 2009, Complainant filed a formal complaint alleging that the Agency discriminated against her on the basis of reprisal for prior protected EEO activity when: 1. on or about June 8, 2009, the EEOCM, provided copies of documents used in the investigation of her prior complaints to the PAC in Belcourt, North Dakota, in order to get her into trouble; 2. On May 26, 2009, the Deputy Area Director (DAD), Field Operations, Aberdeen Area, accused her of sending more than 1,000 e-mails to those outside of her chain of command; 3. On May 7, 2009, the Aberdeen Area Director (AAD) accused her of engaging in an "e-mail war;" 4. On or about April 29, 2009, the Manage Care Supervisor (MCS) and the Contract Health Supervisor (CHS) harassed her by questioning her use of the fax machine and retaining an original "read" receipt of her fax transmission; and 5. On a continuing basis since in or about February 2009, through or after June 8, 2009, the HIS Director, Diversity Management Equal Employment Opportunity (DMEEO) and EEOCM harassed her by mishandling her EEO complaints in an effort to sabotage her cases. Following an investigation by the Agency, Complainant initially requested a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ) but thereafter withdrew her request in favor of a final agency decision (FAD). In the FAD, the Agency dismissed claim 5, pursuant to 29 C.F.R. § 1614.107(a)(8), as a claim of alleged dissatisfaction with the processing of a previously filed EEO complaint. The Agency also procedurally dismissed claim 4, the questioning of her use of the fax machine and the delayed return of her transmission receipt, as moot because the receipt was returned to her on May 6, 2009. The Agency, however, included this issue in its analysis of Complainant's overall reprisal claim. The Agency found that Complainant did not establish a prima facie case of reprisal discrimination because she did not suffer an adverse employment action with regard to a term, condition or privilege of employment. Consequently, the Agency determined that there could be no causal relationship between Complainant's participation in the protected EEO activity and her allegations of discrimination. Nevertheless, the Agency found that, assuming arguendo that Complainant established a prima facie case of reprisal discrimination, management articulated legitimate, nondiscriminatory reasons for its actions; namely, that Complainant was accused of being in an "e-mail war" because copies of the e-mails were forwarded to the Area Director and Complainant's supervisor had to speak to her and a coworker in order to get the situation under control. The Agency found that Complainant was accused of spamming because she provided the EEOCM with over 1,000 pages of e-mailed documents as part of her formal complaint. The Agency noted the EEOCM statement that management had concerns that Complainant was not following the chain of command in some of her communications and that, when the review was concluded, the documents were returned to his jurisdiction. The Agency found that Complainant did not demonstrate that its legitimate, nondiscriminatory reasons were pretext for discrimination. The Agency, in part, acknowledged that Complainant's EEO materials were sitting in an open area for a period of time but that the two boxes were ultimately placed in a secure area. According to the Agency, Complainant's documents were part of a formal investigation and could be used if management had reason to believe that other issues or violations existed. The Agency maintained that, because staff was under a directive to follow the chain of command, any documents which may have violated that directive could be reviewed by management. Moreover, the Agency maintained that, because management had a responsibility of protecting information concerning its employees and patients, it was within its rights to review her submissions. The Agency also maintained that Complainant did not provided any evidence which showed that management's actions were a result of discrimination or retaliation for her filing the instant complaint. The Agency noted that it took no employment action against Complainant and committed no acts so severe or pervasive that they affected a term, condition or privilege of her employment. CONTENTIONS ON APPEAL Complainant and the Agency did not submit briefs on appeal. ANALYSIS AND FINDINGS As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. § 1614.110(b), the Agency's decision is subject to de novo review by the Commission. 29 C.F.R.§ 1614.405(a). See EEOC Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), Chap. 9, § VI(A) (Aug. 5, 2015) (explaining that the de novo standard of review "requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker," and that EEOC "review the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, and . . . issue its decision based on the Commission's own assessment of the record and its interpretation of the law"). Claim 5 The Commission has the discretion to review only those issues specifically raised in an appeal. EEO MD-110, at Chap. 9, § IV(A)(3). Because the Complainant does not specifically contest the Agency's determination that claim (5) was properly dismissed, pursuant to 29 CFR 1614.107(a)(8), as a claim of alleged dissatisfaction with the processing of a previously filed EEO complaint, we exercise our discretion to not address the issue further in this decision. Claims 1 and 2 With regard to claims (1) and (2), we find the Agency's actions constitute a per se violation of our regulations prohibiting retaliation. At the outset, we reject both the Agency's and the EEOCM's contention that, because Complainant did not suffer an adverse employment action regarding the review of her EEO records, she was not subjected to retaliation. The test is whether an agency's action is reasonably likely to deter protected EEO activity by that individual or another employee. As articulated in Section 8 of the EEOC Compliance Manual on Retaliation: The anti-retaliation provisions are exceptionally broad. They make it unlawful 'to discriminate' against an individual because of his or her protected activity. This is in contrast to the general anti-discrimination provisions which make it unlawful to discriminate with respect to an individual's 'terms, conditions, or privileges of employment.' The retaliation provisions set no qualifiers on the term 'to discriminate,' and therefore prohibit any discrimination that is reasonably likely to deter protected activity. They do not restrict the actions that can be challenged to those that affect the terms and conditions of employment. Thus, a violation will be found if an employer retaliates against a worker for engaging in protected activity through threats, harassment in or out of the workplace, or any other adverse treatment that is reasonably likely to deter protected activity by that individual or other employees. This broad view of coverage accords with the primary purpose of the anti-retaliation provisions, which is to maintain unfettered access to statutory remedial mechanisms. Regardless of the degree or quality of harm to the particular [complainant], retaliation harms the public interest by deterring others from filing a [complaint]. An interpretation of Title VII that permits some forms of retaliation to go unpunished would undermine the effectiveness of the EEO statutes and conflict with the language and purpose of the anti-retaliation provisions. We find that the disclosure of Complainant's EEO records in the manner described by the EEOCM would be reasonably likely to deter Complainant and others from engaging in protected EEO activity. As articulated by the EEOCM, the Agency's policy is that, if an employee is suspected of some misconduct, in this case not respecting the chain of command structure, or engaging in Privacy Act or HIPPA violations, the Agency may examine the employee's EEO documents. The justification offered by the EEOCM is that these documents are part of a formal investigation and therefore became government property. He also noted that the documents in the Reports of Investigation and other documents Complainant submitted were generated by her, management, and witnesses on government computers and could be shared with individuals who have a need to know. There is no question that, if the Agency believed that Complainant had violated a law or policy, she could be subjected to an investigation like any other employee. In this case, however, the Agency failed to provide a plausible explanation for why her EEO records pertaining to Complaints Nos. HHS-IHS-0212-2007 and HHS-HIS-0050-2009 needed to be reviewed, if the concern was with her e-mails. The only reasonable explanation is that the Agency was seeking to deter her protected EEO activity and that of others. We note in this regard that in one of the e-mails that she sent to the Deputy Director, Complainant indicated that she might be subjected to "continued harassment." According to the EEOCM, this is the e-mail that he turned over to management because it violated the chain of command, and which appears to have led to the investigation of Complainant and the review of her EEO files (Claim 2). Thus, Complainant's complaints about "continued harassment" to the Deputy Director resulted in her being investigated. We find that the record demonstrates that there was a blatant mishandling of Complainant's EEO complaint files. The fact that information may have been generated from government computers does not justify the Agency's disclosure policy. We find that management mishandled Complainant's EEO records and that these actions were reasonably likely to deter her and other employees from engaging in EEO activity. We also note the Agency's admission that Complainant's EEO files were left unsecured in the CEO's office for a period of time. Consequently, we find that Complainant demonstrated that she was subjected to reprisal with regard to claims 1 and 2. Claims 3 and 4 After a review of the record in its entirety, including consideration of all statements submitted on appeal, it is the decision of the Equal Employment Opportunity Commission to AFFIRM the Agency's final decision with regard to claims 3 and 4. We find that, even assuming arguendo that Complainant established a prima facie case of reprisal, the Agency articulated legitimate, nondiscriminatory reasons for its actions. Specifically, we find that with regard to claim 3, where Complainant was accused of being in an "e-mail war" with a coworker, the record reflects that Complainant was spoken to by her supervisor regarding this matter because she provided courtesy copies of e-mails to the Area Director of the back and forth between her and the co-worker. The Area Director contacted Complainant's supervisor and gave her specific written instructions on addressing the conflicts between her staff. There is no indication that the Area Director's comments were specifically directed to Complainant or were related to her EEO activity. With regard to claim 4, concerning the fax machine usage, the record reveals that Complainant was using a fax machine located outside of her work area. At that time, she was asked why she was using that unit's fax machine instead of her unit's fax machine. Complainant was thereafter notified by a supervisor in that unit that her fax did not go through. She was ultimately given a copy of the fax transmission report that indicated that the fax did not go through as she requested. We find that Complainant did not show that discriminatory animus was involved in either claim 3 or 4. We further find that Complainant did not demonstrate that the Agency's articulated legitimate, nondiscriminatory reasons were pretext for discrimination. Accordingly, we find that the preponderance of the evidence of record with regard to these claims does not establish that discrimination occurred. We also find that claims 3 and 4 were not severe or pervasive enough to establish a hostile work environment. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency's FAD with regard to claims 3, 4, and 5 for the reasons set forth in this decision. The Commission, however, REVERSES the FAD with respect to claims 1 and 2, and finds the Agency discriminated against Complainant in retaliation for engaging in protected EEO activity. We REMAND these matters to the Agency for further processing in accordance with this decision and the Order below. ORDER The Agency is ORDERED to take the following remedial actions: 1. Within one hundred and twenty (120) calendar days from the date this decision becomes final, the Agency will conduct and complete a supplemental investigation on the issue of Complainant's entitlement to compensatory damages, and will afford her an opportunity to establish a causal relationship between the Agency's retaliation and her pecuniary or non-pecuniary losses, if any. Complainant will cooperate in the Agency's efforts to compute the amount of compensatory damages, and will provide all relevant information requested by the Agency. The Agency will issue a final decision on the issue of compensatory damages. 29 C.F.R. § 1614.110. The final decision shall contain appeal rights to the Commission. The Agency shall submit a copy of the final decision to the Compliance Officer at the address set forth herein. 2. Within one hundred and twenty (120) calendar days from the date this decision becomes final, the Agency shall provide at least eight hours of in-person EEO training to the responsible management officials identified as the IHS EEO Complaints Manager (EEOCM), the Chief Executive Officer (CEO), and the Privacy Act Coordinator (PAC) regarding their responsibilities under Title VII, with special emphasis on the duty of managers to avoid retaliating against employees. 3. The Agency shall consider taking appropriate disciplinary action against the responsible management officials identified as the EEOCM, the CEO, and the PAC. The Agency shall report its decision to the Compliance Officer referenced herein. 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 identified management officials have left the Agency's employment, the Agency shall furnish documentation of the departure date(s). 4. The Agency shall post the notice referenced in the paragraph below entitled, "Posting Order." 5. The Agency is further directed to submit a Report of Compliance, as provided in the statement entitled "Implementation of the Commission's Decision." The Report shall include evidence that the corrective action has been implemented. IMPLEMENTATION OF THE COMMISSION'S DECISION (K0610) 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 77960, Washington, DC 20013. 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. POSTING ORDER (G0914) The Agency is ordered to post at its Memorial Health Care Facility in Belcourt, North Dakota 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 becomes final, 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 at the address cited in the paragraph entitled "Implementation of the Commission's Decision," within 10 calendar days of the expiration of the posting period. ATTORNEY'S FEES (H0610) If Complainant has been represented by an attorney (as defined by 29 C.F.R. § 1614.501(e)(1)(iii)), he is entitled to an award of reasonable attorney's fees incurred in the processing of the complaint. 29 C.F.R. § 1614.501(e). The award of attorney's fees shall be paid by the Agency. The attorney shall submit a verified statement of fees to the Agency -- not to the Equal Employment Opportunity Commission, Office of Federal Operations -- within thirty (30) calendar days of this decision becoming final. The Agency shall then process the claim for attorney's fees in accordance with 29 C.F.R. § 1614.501. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0815) 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), 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, P.O. Box 77960, Washington, DC 20013. 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 (T0610) 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 (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 signature Carlton M. Hadden, Director Office of Federal Operations _12/18/15_________________ 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 According to Complainant, there were two boxes of materials from the Reports of Investigation pertaining to her two cases. The two complaints had been consolidated and were scheduled for a hearing on May 12 and 13, 2010. 3 The Health Insurance Portability and Accountability Act of 1996. 4 He specifically referenced an e-mail that Complainant had sent to the Deputy Director. According to the EEOCM, he provided the e-mail to management because it violated the "chain of command" policy. He also stated that he informed management that he was in custody of approximately 1000 pages of e-mail documents which could be reviewed for chain of command and possible privacy/HIPPA violations. In one e-mail, to which the Deputy Director was cc'ed, Complainant asked the EEOCM about an EEO case that had been procedurally dismissed. Complainant disagreed with how her allegation was described by the EEOCM and raised the possibility that she was being subjected to "continued harassment." See ROI, pages 222 - 223. 5 The EEOCM indicated that he was referring to the total page number of the e-mails with attachments, not the total number of actual e-mails. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 0120121845 2 0120121845