0520120589
02-25-2015
Complainant v. Sylvia Mathews Burwell, Secretary, Department of Health and Human Services (Food and Drug Administration), Agency.
Complainant
v.
Sylvia Mathews Burwell,
Secretary,
Department of Health and Human Services
(Food and Drug Administration),
Agency.
Request No. 0520120589
Appeal No. 0120111422
Agency No. HHS-FDA-CDRH-076-10
DECISION ON RECONSIDERATION
Complainant timely requested reconsideration of the decision in EEOC Appeal No. 0120111422 (July 25, 2012). 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(b).
After reconsidering the previous decision and the entire record, the Commission finds that the request does not meet the criteria of 29 C.F.R. � 1614.405(b), and it is the decision of the Commission to DENY the request. However, the Commission reconsiders the case on its own motion.
BACKGROUND
In the previous decision, the Commission affirmed the Agency's dismissal of Complainant's complaint on the basis that he had contacted an EEO Counselor in an untimely manner. Complainant claimed that he had been discriminated against on the basis of his physical disability when the Agency did not grant him a reasonable accommodation from May 18, 2009, through July 27, 2009. At the time in question, Complainant was an Administrative Support Clerk for the Agency at its Rockville, Maryland facility. He had limited use of his legs and used a motorized scooter for mobility. He did not have the use of his right arm due to a stroke he had suffered in childhood. In 2009, Complainant's office relocated from the Agency's Rockville facility to the Agency's new White Oak facility in Silver Spring, Maryland. The Rockville facility had automatic doors which accommodated Complainant's disability; the White Oak facility did not, despite Complainant's reasonable accommodation request that such doors be installed prior to his transfer there.
Prior to the move to White Oak, on February 24, 2009, Complainant submitted a request to the Reasonable Accommodation Specialist for automatic doors to be installed and for a parking space which would accommodate his vehicle's ramp so he could unload the motorized scooter. In March 2009, Complainant submitted his request a second time. He alleged that he was told, after the move to White Oak was completed, that he, personally, needed to contact an entity that services repairs for government offices and request the installation of the door openers. Complainant also claimed that his immediate supervisor informed him that he was not to contact the Reasonable Accommodation Specialist directly, and that his immediate supervisor said that his request was "low on the [priority] list."
The restroom door was not accessible, and Complainant was forced, while sitting in his scooter, to use his left arm to reach across his body to pull open the door. The door would also close on Complainant, further injuring him. Complainant alleged that the lack of automatic doors at White Oak caused him to injure his functional left arm, after which he was unable to work. He required surgery to repair the injury and intense physical therapy to recover. Complainant stated that he was unable to type or to work, he had to move in with his family because he required assistance to eat and drink, and he could no longer live independently, as he had before his injury. Complainant stopped working at the facility as of July 27, 2009, and filed a claim with the Office of Workers' Compensation Programs (OWCP), in order to receive medical treatment for his injuries. Complainant initiated the EEO process in May 2010, after he had sufficiently recovered from his on-the-job injuries, and even then still needed the assistance of family members to complete the EEO forms.
Our previous decision found that Complainant had not shown that he was so incapacitated that he was unable to initiate EEO contact within 45 days of the date of the discriminatory events. We noted that he did not provide a statement from a medical provider that confirmed his incapacity during this period. The decision noted that Complainant was able to apply for OWCP benefits with the assistance of his mother during this period.
ARGUMENTS ON RECONSIDERATION
In his request for reconsideration, Complainant argued that to allow his case to be dismissed for untimely filing would be a "travesty of justice." He noted that he had attempted to obtain a reasonable accommodation before he was moved to White Oak, that his supervisor "firmly instructed" him not to contact anyone about the door issue on his own, and that the supervisor did not take any actions until it was too late and Complainant's arm was already injured. He stated that it had been assumed that the doors would open with five pounds of pressure, but that once the doors were actually tested it was determined that it took 18 pounds of pressure to open them. He described his efforts at recovery, including frequent physical therapy sessions, and the intense pain he has experienced, as well as his fear that he would now be permanently injured and no longer able to live independently. He stated, "I believe that one of the purposes of the EEO is to uphold the rights of disabled individuals in the workplace."
The Agency did not submit a statement or a brief in opposition to Complainant's request for reconsideration.
DETERMINATION
We find that Complainant's request for reconsideration fails to show that our previous decision involved a clearly erroneous interpretation of fact or law. Complainant has not demonstrated that our previous decision misinterpreted the standards we have generally applied to an assertion that the complainant was incapacitated and therefore unable to contact an EEO Counselor in a timely manner. Therefore, we find that Complainant's request for reconsideration should be denied because it did not demonstrate that the previous decision clearly erred on this point.
Nevertheless, upon our own motion, we reopen the appellate decision and find that Complainant's complaint was improperly dismissed for untimely EEO contact. Because an employer has an ongoing obligation to provide a reasonable accommodation, failure to provide such an accommodation constitutes a violation each time the employee needs it. See "Threshold Issues," EEOC Compliance Manual, at 2-IV(C)(1)(a) (revised July 21, 2005); Akbar v. Depa't of Veterans Affairs, EEOC Appeal No. 0120102856 (Dec. 11, 2012); Smith v. Dep't of the Navy, EEOC Appeal No. 0120121807 (July 13, 2012). The record indicates that Complainant is still an employee of the Agency. The Agency has an ongoing obligation to reasonably accommodate Complainant, and an ongoing obligation to make its physical facilities accessible to individuals with disabilities. As of May 2010, Complainant's doctor had cleared him to return to the workplace with restrictions. A Department of Labor form from April 2010 indicated that automated doors would be necessary for a return to work.
Complainant initially contacted an EEO Counselor on May 18, 2010, while he and the Agency were engaged in discussions regarding his return to work following his recovery from his on-the-job injury. He indicated an ongoing need for reasonable accommodations at that time, and made a request for a reassignment or different job closer to his home. Presumably, Complainant and the Agency came to some mutually acceptable agreement regarding the other issues he had raised in the informal counseling stage, as those issues were not included in the formal complaint he filed on August 20, 2010. The only claim at issue in this request for reconsideration is Complainant's allegation of failure to provide a reasonable accommodation in the form of accessible doors at the White Oak facility.
We also find that the appellate decision should be reopened in the interest of equity, and that based on the record as it currently stands, the previous decision should be reversed and the complaint remanded to the Agency for processing and an investigation. In this instance we find that considerations of fairness and equity dictate that Complainant should be allowed to move forward with his EEO complaint against the Agency.
Based on the undisputed information in the file regarding the Agency's failure to provide a reasonable accommodation to Complainant, and furthermore, to even attempt to comply with the physical accessibility requirements to which it is subject under various statutes, we find that it would be a manifest injustice to deny Complainant access to the EEO process.
Complainant has detailed his attempts to request a reasonable accommodation, and his notification to the Agency in February and March 2009 that he required automatic door openers. He also submitted an e-mail which discussed the on-going efforts by employees of the Agency to make the White Oak facility compliant with the requirements of the Americans with Disabilities Act (ADA), noting that the pressure required to open the doors was an issue raised as early as the 2006-2007 timeframe. We note that the Agency facilities at the White Oak campus are all new construction. Certainly the Agency was on notice that there was an issue with the facility not comporting with the applicable physical accessibility standards.
Section 504 of the Rehabilitation Act of 1973, as amended, prohibits disability discrimination in programs and activities conducted by Federal Executive agencies, including a requirement that facilities are physically accessible to individuals with disabilities. See 29 U.S.C. � 794. The federal government is also covered by the Architectural Barriers Act (ABA), which requires that the design, construction, and alteration of Federal buildings be done in an accessible manner. See 42 U.S.C. �� 4151 et seq. The architectural standards under the ADA, the Rehabilitation Act, and the ABA are generally consistent with one another, although enforced by different agencies.1
Complainant is advised that, while the Commission cannot enforce the accessibility standards contained in the ABA, he may wish to separately pursue filing a complaint with the U.S. Access Board for the failure of the Agency to ensure its compliance with these standards. See www.access-board.gov for more information in this regard.
CONCLUSION
After reviewing the previous decision and the entire record, the Commission finds that Complainant's request fails to meet the criteria of 29 C.F.R. � 1614.405(b), and it is the decision of the Commission to DENY the request. The Commission, however, has reconsidered the previous decision on its own motion. The decision in EEOC Appeal No. 0120111422 is REVERSED, and the complaint is REMANDED to the Agency for further processing. There is no further right of administrative appeal on the decision of the Commission on this Request to Reconsider. The Agency shall comply with the Order as set forth below.
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.
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (P0610)
This decision of the Commission is final, and there is no further right of administrative appeal from the Commission's decision. 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. 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.
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
February 25, 2015
Date
1 The U.S. Access Board is responsible for enforcing the physical accessibility standards to which the federal government is subject under the ABA.
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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