0120113764
10-09-2015
Complainant v. Jenny R. Yang, Chair, Equal Employment Opportunity Commission,1 Agency.
Complainant
v.
Jenny R. Yang,
Chair,
Equal Employment Opportunity Commission,1
Agency.
Appeal No. 0120113764
Agency No. 33798-2011
DECISION
Complainant timely filed an appeal from the Agency's June 20, 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. The Commission accepts the appeal pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission REVERSES the Agency's final decision and REMANDS the complaint for further processing.
ISSUE PRESENTED
The issue presented is whether the Agency properly dismissed as moot Complainant's complaint alleging that the Agency failed to restore leave that she used when her request to telework five days per week as an accommodation for pregnancy-related complications was denied.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as an Investigator, GS-9, at the Agency's Cleveland Field Office (CLFO) in Cleveland, Ohio. On February 16, 2011, Complainant met with her supervisor to explain that she was experiencing complications from her pregnancy, and as a result her doctor ordered bed-rest until delivery of her child in June 2011. As such, Complainant requested to telework from home five days per week as an accommodation for her condition. Complainant was already on a telework schedule that allowed her to work from home on Thursday and Friday, and requested to additionally work from home on Monday through Wednesday.2 Complainant communicated her request for this accommodation to her supervisor, the CFLO Director, and the Disability Program Manager.
On February 18, 2011, Complainant was advised by management to use leave for Monday through Wednesday and continue to telework on Thursday and Friday until further notice. However, management ultimately denied her request to telework on Monday through Wednesday. On February 22, 2011, Complainant was informed by the CLFO Director that she could no longer telework on Thursdays and Fridays, either. As a result, Complainant had to use a combination of annual and sick leave to comply with her doctor's orders.
After her accommodation request was denied, Complainant contacted her union. Thereafter, Complainant's union steward, in accordance with the collective bargaining agreement, spoke with Agency management in an effort to resolve the matter. On March 22, 2011, Complainant's union steward received an offer from Agency management that would allow Complainant to telework five days per week as she had requested. In a March 22, 2011, e-mail to Complainant, Complainant's union steward noted, "Productive discussion with management this morning, here's Employer's revised settlement offer, which I recommend: 5 days [of telework] weekly, no restoration of lost [telework] days. . . ." Complainant replied via e-mail on March 22, 2011, that she was "fine with this option. . . ." In an April 28, 2011, letter to the EEO Counselor, Complainant's union steward noted that "the union's efforts to obtain . . . telecommuting restoration for Complainant, were ultimately unsuccessful and the restoration claim was given up in exchange for the agreed 5 days weekly telecommuting settlement." The letter further noted that Complainant wrote to the union that she was "good" with the settlement and that she accepted the Agency's proposal and wanted to start teleworking the next day. This letter also noted that "the union regarded this informal settlement as final and did not file a formal written grievance" on Complainant's behalf.
On March 29, 2011, Complainant contacted an EEO Counselor. In addition to the denial of her request for additional telework days, Complainant noted that, after she requested additional days, her existing telework days were withdrawn. She also discussed her concern that she had been subjected to reprisal with regard to the imposition of onerous assignments. On May 4, 2011, Complainant filed a formal EEO complaint alleging that the Agency discriminated against her on the basis of sex (female/pregnancy) when management failed to restore leave that she had used when her request to telework five days per week as an accommodation for her pregnancy-related complications was denied.
In its June 20, 2011, final decision, the Agency dismissed Complainant's complaint as moot pursuant to 29 C.F.R. � 1614.107(a)(5). The Agency noted that the union reached an agreement with management to settle the same issues that are the subject of the instant complaint. The Agency noted that Complainant communicated her agreement to the terms of the settlement, and found the agreement enforceable even though it was not signed by both parties. The Agency noted that, in exchange for being granted permission to telework five days per week during her pregnancy, Complainant agreed to give up the restoration of her leave.
CONTENTIONS ON APPEAL
On appeal, Complainant contends that the Agency improperly failed to restore the leave that she had to use Monday through Wednesday before the settlement, after her request for accommodation was denied. Complainant also contends that management improperly revoked her scheduled Thursday and Friday telework days, in addition to not allowing her to work from home on Monday through Wednesday. Complainant contends that the leave referred to in the settlement agreement and the leave requested in the instant complaint are not the same. Complainant further contends that management violated the collective bargaining agreement between the Agency and the union.3
ANALYSIS AND FINDINGS
The regulation set forth at 29 C.F.R. � 1614.107(a)(5) provides that the Agency shall dismiss a complaint that is moot. To determine whether the issues raised in this complaint are moot, the fact finder must ascertain whether: (1) it can be said with assurance that there is no reasonable expectation that the alleged violation will recur; and (2) interim relief or events have completely and irrevocably eradicated the effects of the alleged discrimination. See County of Los Angeles v. Davis, 440 U.S. 625, 631 (1979); Jordan v. U.S. Postal Service, EEOC Request No. 05A51226 (Aug. 3, 2006). When such circumstances exist, no relief is available and no need for a determination of the rights of the parties is presented.
In her complaint, Complainant alleged that the Agency failed to restore leave that she had used when her request to telework five days per week as an accommodation for pregnancy-related complications was denied. Complainant acknowledges that, via negotiations between her union representative and management, she agreed to waive restoration of "lost telework days" in return for being granted a five day per week telework schedule to accommodate her pregnancy-related restrictions.4 We note that Complainant has maintained from the outset that, in waiving the "lost telework days," she was referring only to the Thursdays and Fridays that she had been allowed to telework prior to her request for pregnancy-related accommodation, but that were denied to her without explanation after she requested accommodation. Complainant has further maintained from the outset that the leave restoration she seeks through the instant complaint refers to the leave she used to remain at home Monday through Wednesday in the weeks before the Agency agreed to allow her to telework Monday through Friday until the birth of her child.
Further, we note that a fair reading of the record reflects that, in addition to discrimination based on sex (pregnancy), Complainant also alleges that she was subjected to reprisal for having requested accommodation of pregnancy-related complications. While it does not appear that the onerous work assignments actually were imposed on Complainant, it is undisputed that, following Complainant's request for accommodation, her existing telework schedule of Thursdays and Fridays was withdrawn.
Having reviewed the record, we cannot say with any confidence that there is no reasonable expectation that the alleged violation will recur. The facts of the case lend themselves to an inference not only that Complainant was discriminated against with regard to her pregnancy, a state in which Complainant may find herself again, but that she was subjected to reprisal as well. Further, we cannot say with any confidence that interim relief or events have completely and irrevocably eradicated the effects of the alleged discrimination. As a consequence of the denial of accommodation, Complainant has sustained a loss of leave (Mondays through Wednesdays) that has yet to be remedied. In view of the foregoing, Complainant's complaint is not moot.
Accordingly, we will remand the complaint to the Agency for investigation of the claims that Complainant was subjected to sex discrimination when she was denied a five days per week telework schedule as an accommodation for her pregnancy-related complications, and to reprisal discrimination when her existing telework schedule of Thursdays and Fridays was withdrawn.5
CONCLUSION
We find that the Agency erroneously dismissed Complainant's complaint as moot. Accordingly, we REVERSE the Agency's final decision dismissing Complainant's complaint, and REMAND the complaint for further processing.
ORDER (E0610)
The Agency is ordered to process the remanded claims in accordance with 29 C.F.R. � 1614.108. 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 (M0610)
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 9-18 (Nov. 9, 1999). 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 (Z0610)
If you decide to file a civil action, and if you do not have or cannot afford the services of an attorney, you may request from the Court that the Court appoint an attorney to represent you and that the Court also permit you to file the action without payment of fees, costs, or other security. See Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.; the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c). The grant or denial of the request is within the sole discretion of the Court. Filing a request for an attorney with the Court does not extend your time in which to file a civil action. Both the request and the civil action must be filed within the time limits as stated in the paragraph above ("Right to File a Civil Action").
FOR THE COMMISSION:
______________________________
Bernadette B. Wilson
Acting Executive Officer
Executive Secretariat
October 9, 2015
Date
1 In the present matter, the Equal Employment Opportunity Commission (EEOC) is both the respondent agency and the adjudicatory authority. The Commission's adjudicatory function is housed in an office that is separate and independent from those offices charged with in-house processing and resolution of discrimination complaints. For the purposes of this decision, the term "Commission" or "EEOC" is used when referring to the adjudicatory authority and the term "Agency" is used when referring to the respondent party to this action. The Chair has recused herself from participation in this decision.
2 We note that, as discussed in the text below, it is the leave used Monday through Wednesday that is at issue herein.
3 The record contains additional letters from Complainant dated September 26 and 27, 2011. 29 C.F.R. � 1614.403(d) provides that any statement or brief filed on behalf of a complainant in support of the appeal must be submitted to the Office of Federal Operations within 30 days of filing the notice of appeal. The record reflects that Complainant filed her notice of appeal on July 19, 2011 and filed additional supporting statements dated September 26 and 27, 2011. Therefore, the Commission declines to consider the September 26 and 27, 2011, statements, as they were untimely filed.
4 Because the settlement agreement facilitated by the union did not result from a written grievance, we need not address whether the complaint at bar would be foreclosed by an election to proceed in the grievance process. See 29 C.F.R. � 1614.301(a) (election requires the filing of either a written EEO complaint or a written grievance). We note that neither party contests the validity of the settlement.
5Pursuant to the settlement of her informal grievance, Complainant waived restoration of leave for the Thursdays and Fridays on which she was not permitted to telework prior to the settlement. We note that, while the terms of the settlement of the informal grievance may limit Complainant's remedy should she prevail on the merits of her EEO complaint, the settlement does not affect Complainant's ability to bring her reprisal claim. See note 4, supra. There are equitable remedies that may be available to Complainant apart from leave restoration, should she prevail on her reprisal claim.
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0120113764
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Washington, DC 20507
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0120113764