Ashlea P.,1 Complainant,v.Sally Jewell, Secretary, Department of the Interior (Fish and Wildlife Service), Agency.

Equal Employment Opportunity Commission

Apr 8, 2016

0520160108 (E.E.O.C. Apr. 8, 2016)

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

Ashlea P.,1
Complainant,

v.

Sally Jewell,
Secretary,
Department of the Interior
(Fish and Wildlife Service),
Agency.

Request No. 0520160108

Appeal No. 0120130981

Agency No. DOI-FWS-10-0366

DECISION ON REQUEST FOR RECONSIDERATION

The Agency requested reconsideration of the decision in EEOC Appeal No. 0120130981
(September 16, 2015). EEOC Regulations provide that the Commission may, in its discretion,
grant a request to reconsider any previous Commission decision where the requesting party
demonstrates 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. See 29 C.F.R. § 1614.405(c).

In her underlying complaint, Complainant alleged that the Agency’s subjected her to unlawful
disability discrimination when: (a) on May 4, 2010, management continued to ignore and/or
reject her requests for partial telework, or other reasonable accommodation, following her
return to a two-hour work day; (b) on November 12, 2009, she received a letter from the
Administrative Officer instructing her not to return to her worksite until he received a “return
to work” document from her physician; furthermore, Complainant was not authorized to
telework or work from an alternative location; (c) from October 29, 2009 through July 31,
2010, management did not engage in an interactive two-way communication with Complainant
regarding her reasonable accommodation requests; (d) from October 29, 2009 through July 31,
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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2010, management ignored her requests to be assigned to an alternative worksite or to be
transferred to an existing vacant, or soon to be vacant position; (e) from 2006 through
September 22, 2009, management ignored her repeated requests for reasonable accommodation
and did not enter into an interactive two-way communication regarding her requests; (f) on
September 22, 2009, management denied her medical documentation and reasonable
accommodation request to work at an alternative worksite or to telework from her home when
she was issued a letter entitled “Return to Duty Station,” instructing her to return to a regular
work schedule even though her doctor had imposed a “permanent” medical restriction from
working at that location; (g) in July 2009, she received a letter from her supervisor requesting
additional medical documentation; (h) in May 2009, following an Office of the Inspector
General audit, management discontinued authority for her to telework; (i) in 2006,
management ignored her requests for reasonable accommodation after her workers'
compensation Continuation of Pay (COP) ran out; (j) management ignored her requests each
time she signed a temporary telework agreement in 2006, 2007, 2008 and 2009; and (k)
management did not provide her with Office of Workers' Compensation Program (OWCP)
guidance to enable her to receive OWCP payments.

On August 26, 2010, the Agency issued a partial dismissal, accepting for investigation
allegations (a)–(d). The Agency dismissed allegations (e)-(j) for untimely EEO Counselor
contact and allegation (k) for failure to state a claim. After the investigation of accepted claims
(a)-(d), Complainant was provided with a copy of the report of investigation and notice of her
right to request a hearing before an Equal Employment Opportunity Commission
Administrative Judge (AJ). Complainant initially requested a hearing. However, Complainant
subsequently withdrew her request. Consequently, the Agency issued a final decision on
December 4, 2012, finding no discrimination. On appeal, the Commission found that while the
Agency appropriately dismissed claim (k), it erred in dismissing claims (e)-(j), as these
allegations are part of a single claim of an ongoing failure to reasonably accommodate
Complainant’s disabilities.2 We further found that because the remanded claims have a
thematic nexus to claims (a)-(d), which were decided on the merits in the Agency’s final
decision, it was necessary to vacate the Agency’s final decision finding no discrimination.

In its request for reconsideration, the Agency argues that the Commission erred in vacating its
final merits decision for a portion of the complaint and in remanding the dismissed claims for a
supplemental investigation. We find, however after reviewing the previous decision and the
entire record, the Commission finds that the request fails to meet the criteria of 29 C.F.R.
§1614.405(c), and it is the decision of the Commission to deny the request. The decision in
EEOC Appeal No. 0120130981 remains the Commission's decision. There is no further right
of administrative appeal on the decision of the Commission on this request. The Agency shall
comply with the Order herein.

2 The decision found that claims (i) and (j) should be investigated as background evidence to
Complainant’s timely claims.

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ORDER

The Agency is ordered to conduct a supplemental investigation into Complainant’s claim on an
ongoing failure to reasonably accommodate her disabilities that incorporates allegations (a)-(j),
in accordance with 29 C.F.R. § 1614.108, and consider this evidence with the evidence
already gathered in making any final adjudication on Complainant’s reasonable accommodation
claim. 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.

COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (Q0610)

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

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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 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

April 8, 2016
Date