U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Princess B.,1 Complainant, v. Robert McDonald, Secretary, Department of Veterans Affairs, Agency. Appeal No. 0120143221 Agency No. 2003-0756-2014102755 DECISION Complainant filed a timely appeal with this Commission from the Agency's final decision dated August 21, 2014, dismissing 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. BACKGROUND On June 12, 2014, Complainant, a former physician at the Agency's Veterans Health Administration in El Paso, Texas, filed a formal complaint. In her complaint, alleged that the Agency subjected her to discrimination on the bases of race (Asian), national origin, sex (female), and reprisal for prior EEO activity when, following her termination in April 2012,2 Agency officials engaged in an ongoing pattern of failing to provide her with documents she believed were necessary to enable her to successfully apply for other positions. In several July 2014 responses to the Agency's request for additional clarifying information, Complainant elaborated that she made repeated requests for the Agency to prepare an SF-50 of resignation to replace the SF-50 indicating termination during her probationary period. Complainant also requested three "excellent" letters of reference, and a standard letter of "good standing during duration of employment at VA El Paso." Complainant stated that it is her belief that because of the Agency's willful refusal to provide the requested information that is necessary for job applications, she has been prevented from being able to successfully apply for other dermatologist positions. In its August 21, 2014 final decision, the Agency dismissed the formal complaint, pursuant to 29 C.F.R. § 1614.107(a)(1), for failure to state a claim. The instant appeal followed. ANALYSIS AND FINDINGS An agency shall accept a complaint from any aggrieved employee or applicant for employment who believes that he or she has been discrimination against by that agency because of race, color, religion, sex, national origin, age or disabling condition. 29 C.F.R. § 1614.103, § 1614.106(a). The Commission's federal sector case precedent has long defined an "aggrieved employee" as one who suffers a present harm or loss with respect to a term, condition, or privilege of employment for which there is a remedy. Diaz v. Department of the Air Force, EEOC Request No. 05931049 (April 21, 1994). In its final decision and statement on appeal, that Agency argued that Complainant lacked standing as she is not an employee with the Agency. The Agency also argued that federal agencies are under no obligation to provide "excellent letters of reference" or "letters of good standing" to former employees. Moreover, the Agency determined that Complainant's allegations that its continued refusal to provide this information has subsequently prevented her from applying for other jobs does not render her aggrieved. After careful review of the record, the Commission concludes that the Agency improperly dismissed the complaint for failure to state a claim, at least with regard to her retaliation claim. In this case, a fair reading of the complaint indicates that Complainant is alleging that the Agency is unlawfully retaliating against her for protected EEO activity she engaged in while an employee of the Agency by not providing her with the documentation it provides other former employees to assist them in securing other employment. We conclude that, under the facts of this case, this states a viable retaliation claim which requires further processing. See Bimes v. Department 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). See also, Doyle v. Department of Justice, EEOC Request No. 0520070207 (October 12, 2007) (complainant stated a viable claim of retaliation when, as a former employee who had engaged in protected EEO activity, he was not selected for a contract position with the agency); Machlin v. United States Postal Service, EEOC Appeal No. 0120070788 (March 29, 2007) (complainant stated a viable claim of retaliation when, as a former employee who had engaged in protected EEO activity, he was not selected for a contract position with the agency). Moreover, the Commission has a policy of considering reprisal claims with a broad view of coverage. See Carroll v. Department of the Army, EEOC Request No. 05970939 (April 4, 2000). Under Commission policy, a complainant is protected from any retaliatory discrimination that is reasonably likely to deter protected activity. See EEOC Compliance Manual Section 8, "Retaliation," No. 915.003 (May 20, 1998), at 8-15; see also Carroll, supra. The Commission finds that the instant complaint, in which Complainant claimed that she was not provided with letters of reference and a neutral SF-50 (indicating a resignation rather than a termination) that were provided to others because of her previous EEO activity, asserts a viable retaliation claim. The Agency's final decision dismissing the formal complaint for failure to state a claim is REVERSED in part and the matter is REMANDED to the Agency for further processing in accordance with the following Order. ORDER (E0610) The Agency is ordered to process the remanded claim (retaliation only) 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 becomes final. 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 becomes final, 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 (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. 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 (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 March 29, 2016 __________________ 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 record reflects that Complainant was terminated from Agency employment effective April 13, 2012. Complainant is not challenging her termination in this complaint. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 0120143221 2 0120143221 6 0120143221