0120150611
05-12-2015
Complainant, v. Ray Mabus, Secretary, Department of the Navy, Agency.
Complainant,
v.
Ray Mabus,
Secretary,
Department of the Navy,
Agency.
Appeal No. 0120150611
Agency No. 146247002099
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated October 27, 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., and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Asset Management - Community Planner at the Agency's facility in Norfolk, Virginia.
On August 8, 2014, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination on the bases of disability and reprisal. Complainant alleged she was denied reasonable accommodation and subjected to a hostile work environment when: (1) on June 25, 2013, the Asset Utilization Branch Supervisor ("the Supervisor") terminated Complainant's telework agreement; (2) from September 2013 and continuing, the Supervisor manipulated her leave requests, time cards, and issued restrictions on her use of leave; (3) between October 1, 2013 and December 2013, Complainant did not receive her 2013 annual evaluation; (4) on October 18, 2013, the Supervisor gave Complainant a letter of caution; (5) on October 21, 2013, the Shore Infrastructure Investment Planning Product Line Manager ("the Manager") began requiring daily physical check in upon arrival and check out by email; (6) on February 1-10, 2014, the Supervisor required written timeline and rules relating to Complainant's performance prior to authorizing her participation in assisting on a project with another supervisor; (7) on March 8, 2014 and continuing, management has failed to provide Complainant with reasonable accommodation; (8) on March 8, 2014, co-workers attributed restrictive changes in time and attendance policy to Complainant; (9) from June 25, 2014, and continuing, the Supervisor and Manager have failed and refused to provide Complainant with meaningful work; (10) on July 10, 2014, the Supervisor recorded Complainant as being absent without leave (AWOL) when she called in 10 minutes after her start time; and (11) on July 15, 2014, the Supervisor and Manager were abusive and accused Complainant of lying and time card fraud and Complainant was advised by the Manager that he would prohibit her from transferring out of his supervision.
On October 27, 2014, the Agency issued a final decision dismissing the entire complaint, pursuant to 29 C.F.R. � 1614.107(a)(1), for failure to state a claim, stating that Complainant was not aggrieved. Claim 7 was also dismissed as a collateral attack on the Agency's reasonable accommodation process.
ANALYSIS AND FINDINGS
Failure to state a claim
The regulation set forth at 29 C.F.R. � 1614.107(a)(1) provides, in relevant part, that an agency shall dismiss a complaint that fails to state a claim. An agency shall accept a complaint from any aggrieved employee or applicant for employment who believes that he or she has been discriminated against by that agency because of race, color, religion, sex, national origin, age or disabling condition. 29 C.F.R. �� 1614.103, .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. Dep't of the Air Force, EEOC Request No. 05931049 (Apr. 21, 1994).
We find that claims related to the termination of telework, leave issues, a letter of caution, reasonable accommodation, being placed on AWOL status, and being denied to transfer all affect a term, condition or privilege of employment and should not have been dismissed for failure to state a claim. Each of these alleged events constitutes a discrete negative personnel action sufficient to state a claim of discrimination or unlawful retaliation. Moreover, these events, in combination with Complainant's other allegations, detail alleged actions taken against her by management that sufficient to state a viable claim of a hostile work environment.
Reasonable accommodation
The Commission has held that an employee cannot use the EEO complaint process to lodge a collateral attack on another proceeding. See Wills v. Dep't of Def., EEOC Request No. 05970596 (July 30, 1998); Kleinman v. U.S. Postal Serv., EEOC Request No. 05940585 (Sept. 22, 1994); Lingad v. U.S. Postal Serv., EEOC Request No. 05930106 (June 25, 1993). Here, the Agency has a process for dealing with reasonable accommodation matters and seems to be asserting that this prevents Complainant from raising her reasonable accommodation concerns within the EEO complaint process. However, Complainant's reasonable accommodation claims are covered by the Rehabilitation Act and clearly fall within the jurisdiction of the Commission's regulations. See 29 C.F.R. � 1614.103(a) and � 1614.203. Complainant is claiming that not only is she being denied reasonable accommodation, but because of the denial, she is unable to schedule doctor's appointments on Mondays and cannot have a flexible work schedule. This has resulted in issues with time and attendance matters. These matters clearly fall within the Commission's jurisdiction. As such, the Agency's dismissal of these claims as a collateral attack on its reasonable accommodation process is reversed.
Accordingly, the Agency's final decision dismissing Complainant's complaint is REVERSED. The complaint is hereby REMANDED to the Agency for further processing in accordance with this decision and the Order below.
ORDER (E0610)
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 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 (November 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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
May 12, 2015
__________________
Date
2
0120150611
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120150611