01a00212
01-28-2000
Cynthia C. Carr, Complainant, v. Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.
Cynthia C. Carr, )
Complainant, )
)
v. ) Appeal No. 01A00212
) Agency No.
Togo D. West, Jr., )
Secretary, )
Department of Veterans Affairs, )
Agency. )
)
DECISION
The complainant timely filed an appeal with this Commission from a final
decision, dated September 21, 1999, which the agency issued pursuant
to EEOC Regulation 29 C.F.R. �1614.107.<1> The Commission accepts the
complainant's appeal in accordance with EEOC Order No. 960, as amended.
ISSUES PRESENTED
The following issues are presented in this appeal: (1) whether the
agency properly defined the claims raised by the subject complaint; and
(2) whether the agency properly dismissed the complaint for failure to
state a claim under 29 C.F.R. Part 1614.
BACKGROUND
According to an initial referral form, the complainant, a GS-3 mail
clerk, contacted the agency's EEO Office because she had not understood
some of the questions asked during an investigative interview on her
sexual harassment complaint and she had asked the interviewer to put
the questions in writing. According to the EEO Counselor's Report,
the complainant alleged that the investigator failed to accommodate her
disabilities which included mild mental retardation and severe delays in
expressive and receptive language. The complainant told the counselor
that the interviewer had not allowed her sufficient time to think and to
get her facts straight; and that subsequently he required her to read,
comprehend, initial, and correct the 51-page document that resulted
from the interview. She also complained, among other things, that the
investigator did not provide a calendar so she could be more accurate.
She further alleged that the investigator asked her if she enjoyed
activities in the locked COVA Room which she had found repulsive.
After receiving a notice of final interview, the complainant filed a
formal EEO complaint, dated August 23, 1999, wherein she alleged the
following:
[The investigator] interviewed me March 17, 1999. He is aware that I am
handicapped, but no accommodation was made for my handicap. I did not
understand some of the questions. Investigators should be impartial
and sensitive. [The investigator] was not. [The investigator] asked me
if I enjoyed activities in the locked COVA Room. [The investigator's]
manner made it clear to me that quick answers were expected. I did
not have time to think. [The investigator] was obsessed with rides,
confusion regarding dates, etc. [The investigator] did not provide a
calendar. [The agency] did not provide records to me. I am asking that
[the investigator] be censured from engaging in investigative activity.
The agency then issued its final decision. According to the decision,
the complainant alleged that the agency discriminated against her based
on her disabilities:
[The complainant] claim[s] that during [her] interview with the
[investigator] on March 17, 1999, he made no attempt to clarify the
questions and [she] felt they were insensitive and impartial.
The decision dismissed the complaint for failure to state a claim,
finding that the complaint concerned the complainant's dissatisfaction
with the EEO process.
On appeal, the complainant explains in detail her dissatisfaction
with the processing of her prior complaint.<2> The complainant also
continues to maintain that the investigator failed to provide a reasonable
accommodation (written questions) for her known disabilities.
ANALYSIS AND FINDINGS
64 Fed. Reg. 37,644, 37,656 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. � 1614.107(a)(8)) provides that an agency
shall dismiss an entire complaint that alleges dissatisfaction with the
processing of a previously filed complaint. Therefore, if the complaint
at issue in this appeal had expressed only dissatisfaction with the EEO
process, the agency would have acted correctly when it dismissed the
complaint.
However, in this case the complaint clearly alleged that the investigator
failed to provide a reasonable accommodation for her disabilities.
EEOC Regulation 29 C.F.R. � 1614.102(a)(8) requires agencies to make
reasonable accommodation to the known physical or mental limitations
of qualified applicants and employees with disabilities, unless the
accommodation would impose an undue hardship on the operation on the
agency's program. The reasonable accommodation requirement is applicable
to the agency's EEO process because, otherwise, qualified applicants and
employees with disabilities could be effectively denied access to the EEO
process, a right granted to them by statute and regulation. For example,
it would be improper for an agency to require complainants to attend
meetings in a location that was inaccessible due to their disabilities.
Similarly, it would be improper for an agency to require complainants
with severe hearing impairments to respond to oral questions without
the assistance of a qualified interpreter.
In the instant case, the complainant alleges that she had disabilities
which adversely affected her ability to understand and respond to the
investigator's oral questioning, including mild mental retardation
and severe delays in expressive and receptive language. The purpose
of the investigation was to obtain information necessary to render
a determination on the complainant's claims, including her sexual
harassment claim. In order to obtain the complainant's view of what
transpired, the investigator needed to ask questions which the complainant
could fully understand. He also needed to give her sufficient time to
answer the questions. Both processes, understanding the questions and
responding to them, could be adversely affected by severe receptive
and expressive language disabilities. Mental retardation could
create additional problems in the understanding of language used by
the investigator, including understanding the meaning of the individual
words used. In addition, the structure of the investigator's questions,
whether formulated in simple, compound, or complex sentences, could
have affected the complainant's ability to process the questions with
complete understanding. In pointing out these potential problems,
the Commission does not intend to render a determination on the merits
of the complainant's reasonable accommodation claim. The Commission
finds only that the complaint states a claim that the complainant was
denied reasonable accommodation during the agency's investigation,
that is, a claim that the agency violated EEOC Regulation 29 C.F.R. �
1614.102(a)(8).
Because a hearing has already been requested in the underlying sexual
harassment complaint, the Commission remands this complaint to the agency
for immediate submission to the Administrative Judge for consolidation.
The Commission notes that the record that the agency submitted to the
Commission in this case does not contain evidence pertaining to the
extent of the complainant's current impairments, including the types
of accommodations, if any, she needs in the investigative process.
This evidence will be needed shortly because hearings typically
involve the asking and answering of oral questions, as did the agency's
investigation in this case. On remand, the Administrative Judge should
ensure that the record contains such evidence, and that the complainant
is provided reasonable accommodation in the hearing process if warranted.
If the Administrative Judge determines that the agency failed to provide
the complainant with a reasonable accommodation for her disabilities
in the investigative process, the Administrative Judge should take all
necessary steps to insure that any such failure does not adversely affect
the determination on the merit of the complainant's prior complaint(s).
The Administrative Judge also should devise a remedy to insure that
in the future the agency provides reasonable accommodations in the EEO
process to complainants with disabilities.
Finally, the Commission reminds that complainant that she may raise her
complaint processing concerns with the Administrative Judge even though
they do not state an independent claim of employment discrimination
under 29 C.F.R. Part 1614.
CONCLUSION
For the reasons stated above, the Commission AFFIRMS the agency's
dismissal of the complaint's claims of dissatisfaction with the EEO
process; REVERSES the agency's dismissal of the reasonable accommodation
claim; and REMANDS the entire complaint to the agency for further
processing as ORDERED below.
ORDER
Within ten (10) calendar days of the date this decision becomes final,
the agency shall forward the complaint to the EEOC's Denver District
Office for consolidation with the complaint(s) filed by the complainant
currently pending before an Administrative Judge.
A copy of the letter which transmits the complaint to the EEOC shall
be sent to the complainant, the complainant's representative, and the
Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K1199)
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 19848,
Washington, D.C. 20036. 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 64 Fed. Reg. 37,644, 37,659-60 (1999) (to be
codified and hereinafter referred to as 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)(Supp. V 1993). If the complainant
files a civil action, the administrative processing of the complaint,
including any petition for enforcement, will be terminated. See 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
to as 29 C.F.R. �1614.409).
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1199)
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
64 Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. �1614.405). All requests and arguments must be
submitted to the Director, Office of Federal Operations, Equal Employment
Opportunity Commission, P.O. Box 19848, Washington, D.C. 20036. 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 64 Fed. Reg. 37,644, 37,661 (1999)
(to be codified and hereinafter referred to as 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 (T1199)
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 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 your appeal with the Commission, until
such time as the agency issues its final decision on your complaint.
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. If you file
a request to reconsider and also file a civil action, filing a civil
action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z1199)
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 that the Court appoint
an attorney to represent you and that the Court 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 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:
January 28, 2000
DATE
Carlton
M.
Hadden,
Acting
Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing. I certify that the
decision was mailed to the complainant, the complainant's representative,
and the agency on:
DATE Equal Employment Assistant1On November 9, 1999, revised
regulations governing the EEOC's federal sector complaint process
went into effect. These regulations apply to all Federal sector
EEO complaints pending at any stage in the administrative process.
Consequently, the Commission will apply the revised regulations found
at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at WWW.EEOC.GOV.
2For example, the complainant contends that the investigator relied on
changes she made to the transcript to find no discrimination. However,
the reason the transcript was submitted to the complainant was to insure
that it correctly reflected her beliefs. She was required to sign the
transcript only after she had corrected any errors.