0120070309
07-16-2009
Estrella C. Noda, Complainant, v. Shaun Donovan, Secretary, Department of Housing and Urban Development, Agency.
Estrella C. Noda,
Complainant,
v.
Shaun Donovan,
Secretary,
Department of Housing and Urban Development,
Agency.
Appeal No. 0120070309
Hearing No. 570-2006-00057X
Agency No. EEO05064
DECISION
Complainant filed an appeal with this Commission from the agency's
final order dated September 15, 2006, concerning her complaint of
unlawful employment discrimination in violation of Section 501 of the
Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. �
791 et seq.
During the relevant time, complainant was employed as a GS-14, Series 301,
Program Analyst, Office of Security and Emergency Planning (OSEP), at
the agency's headquarter's office in Washington, D.C. During the summer
of 2003, complainant was detailed, per her request, to the agency's
Office of Human Resources (HR). During August 2003, complainant was
absent from her duty station for medical reasons. In September 2003,
the agency granted complainant's request for advanced sick leave.
In January 2004, as a result of a settlement agreement from a prior EEO
complaint, complainant returned to duty status, working from her home
in Key West, Florida. The agreement required complainant to return
to work in Washington, D.C. on March 1, 2004. Complainant failed to
return to work in Washington, D.C. on March 1, 2004, and was placed on
approved leave status. In April 2004, complainant submitted a reasonable
accommodation request seeking to telework from her home in Florida.
The agency denied complainant's request. In August 2004, complainant
requested a reassignment to the Miami office as a reasonable accommodation
for her medical condition. The agency denied complainant's request.
From March 1, 2004, through March 31, 2005, complainant was placed in
various types of leave. Complainant was directed to return to Washington,
D.C. on April 1, 2005. Complainant failed to report to Washington,
D.C. as ordered and was placed on Absent Without Leave (AWOL) status.
Complainant filed a complaint, alleging that she was subjected to
discrimination on the basis of disability (bipolar disorder) when:
1. Complainant learned on August 9, 2004, that her request for telework
as a reasonable accommodation was denied; and
2. Complainant learned on November 8, 2004, that her request for a
long-term assignment to the Miami office as a reasonable accommodation
was also denied.
At the conclusion of the investigation, complainant was provided with a
copy of the report of investigation and notice of her right to request
a hearing before an EEOC Administrative Judge (AJ). Complainant timely
requested a hearing. The agency filed its "AGENCY'S MOTION TO DISMISS
AND, IN THE ALTERNATIVE, FOR SUMMARY JUDGMENT." Complainant objected
to the agency's motion. The AJ issued a decision without a hearing
on September 7, 2006, finding complainant failed to prove that she was
subjected to discrimination as alleged.
In his decision, the AJ noted that complainant learned of the denial of
her first request for accommodation on August 9, 2004, and of the denial
of her second request for accommodation on November 8, 2004. The AJ
noted complainant did not make contact with the agency's EEO office
until January 21, 2005, well beyond 45 days after she was informed of
the denials. However, the AJ found that the alleged claims are properly
defined as an ongoing failure to provide a reasonable accommodation for
complainant's disability and that complainant timely initiated contact
with an EEO counselor.
The AJ proceeded to find that complainant failed to show that the agency's
decisions to deny her requests for reasonable accommodation were made in
violation of the Rehabilitation Act. The AJ found it undisputed that
complainant's position required her to be present in Washington, D.C.
The AJ found that the agency denied her full-time telework because it
would prevent her from accessing important classified information, which
is necessary to perform the duties of her position. The AJ noted the
agency showed that her job included the need for face-to-face interaction
and coordination of work with other employees, higher management, and
other federal agencies. The AJ also found complainant's position requires
her to have immediate access to documents or other information located
only in the workplace because duties requiring a TS or SCI security
clearance can only be performed in a properly secured work area in a
government office.
The AJ concluded the agency was not required to reassign complainant to
a position in the Miami office, because there was no evidence that any
vacant, funded GS-14 level Program Analyst position within complainant's
qualifications was available. The AJ noted that the agency conducted a
search for suitable vacancies, but it failed to find one. The AJ stated
that although the agency later learned there was a Division Director
position advertised in the Miami office between August 20 and October
22, 2004, the Disability Program Manager stated she was not told of this
vacancy when she made inquiries about available positions for complainant.
Furthermore, the Disability Program Manager stated complainant was not
qualified for the Division Director position because it required specific
public housing experience which complainant lacked. The AJ also found
that the record is devoid of any indication that the agency failed to
engage in the interactive process.
On appeal, complainant states that since October 2002, for a substantial
period of time, she has been significantly impaired in her ability
to care for herself. Complainant states that in the fall of 2002,
she began to experience severe panic attacks of paranoia and anxiety.
Complainant explains she was hospitalized in Miami from October 17, 2002,
through November 5, 2002, because of signs of severe depression with
psychotic features. Complainant states she was prescribed Risperdol
and was discharged to two weeks of bed rest before she could return
to Washington, D.C. Complainant states that thereafter on December 1,
2002, she returned to work in Washington D.C. She states that due to
the difficulty she was having managing on her own, Doctor B advised that
someone move in with her until she was stabilized. She notes that same
month her elderly father moved from Key West, Florida to live with her
in Washington, D.C. Complainant states that upon her return to the
agency she was working diligently and received a "highly successful"
rating on her 2002 performance appraisal for the period of February 1,
2002, through January 31, 2003.
Complainant states that Doctor C wrote her a letter for her supervisor
recommending that she be moved from the Office of Security and Emergency
Planning given her paranoid condition. She was then detailed for
120 days to the agency's Office of Human Resources. She states she
received positive feedback from her supervisor at this time and was rated
"outstanding" in 5 of the 6 performance elements in her 2003 performance
appraisal and was rated "highly successful" in her sixth element.
Complainant states that she was taken of Risperdol in April 2003. In the
summer of 2003, she states she started having feelings of paranoia and
delusions again. She faced a relapse in September 2003, and over Labor
Day weekend, while in Miami, she was diagnosed with Major Depressive
Disorder Severe and placed on anti-depressant medication and advised by
her doctors not to return to Washington, D.C. Complainant states she was
placed on advanced leave for two months, during which time she stayed in
Key West, Florida and continued to undergo daily evaluation and treatment.
She states that she was increasingly psychotic during this time and she
admitted herself into the hospital in Key West "because her delusions
were increasing and her bruising growing more severe."
Complainant states that in mid-June 2004, she was hospitalized again
as the result of an involuntary commitment for two weeks. She states
that she was discharged on June 23, 2004, and thereafter it was
discovered that her thyroid was malfunctioning and had a condition
called Myxedema Madness. She states at the time she was prescribed the
anti-psychotic drug, Abilify, and two anti-depressants, Welbutrin and
Lexapro. She states that due to the effects of Ability, she could not
complete most basic tasks and states that family and friends drove her to
doctor's appointments, cooked for her, washed her clothes, and cleaned
her house. She states that she spent most of her time sleeping and it
took approximately six to eight months to acclimate to her medications.
Complainant also argues the AJ erred by granting summary judgment on
denial of accommodation claim. Complainant contends there are material
facts in dispute regarding what the essential functions of her job are
and whether they could be performed in Washington, D.C. With regard to
her request to be reassigned to Miami, complainant states that there was
a vacancy available in the Miami office, the GS 13/14 Division Director in
Public Housing, and she states she was qualified to fill the position.
In response to complainant's appeal, the agency reiterates its argument
that complainant failed to initiate timely EEO Counselor contact with
regard to her complaint. Specifically, the agency stated that complainant
learned of the denial of her requests for reasonable accommodation on
August 9, 2004, and November 8, 2004; however, she failed to initiate EEO
Counselor contact until January 21, 2005, which is beyond the applicable
limitations period. The agency states that although her complainant
involves a claim of disability, this fact should not justify waiving
the time limit for counselor contact. The agency notes that complainant
has been represented by attorneys since early 2004, to the present, and
it states it has provided copies of all relevant documents, including
the denials of her accommodation request, to complainant's attorneys.
Thus, the agency argues that complainant's complaint should be dismissed
for untimely EEO Counselor contact.
Alternatively, the agency argues complainant has not shown she
is disabled. Assuming arguendo that complainant is disabled, the
agency claims complainant has not produced evidence which proves she
could perform the essential functions of her position with a reasonable
accommodation. Moreover, the agency claims that it was not required to
reassign complainant because there were no vacant positions for which
she was qualified.
Upon review, we find the present complaint is properly dismissed pursuant
to 29 C.F.R. �1614.107(a)(2), for untimely EEO Counselor contact.
The record reveals that complainant was represented by Attorney 1 since
February 2004. In April 2004, with Attorney 1's assistance, complainant
submitted a request for a reasonable accommodation when she asked for
full-time telework from her home in Key West Florida. On July 27, 2004,
the agency denied complainant's request to for full-time telework from her
home in Florida. Thereafter, the Reasonable Accommodation Committee (RAC)
reviewed the denial of complainant's reasonable accommodation request.
In an August 9, 2004 memorandum, the RAC upheld the determination to deny
the requested accommodation on the grounds that the accommodation would
require the removal of essential functions of the position. The record
reveals the August 9, 2004 RAC decision was sent to complainant and
a copy was sent to Attorney 1. The letter informed complainant that
if she is not satisfied with the RAC decision she had the option of
"[f]iling an EEO discrimination complaint within forty-five (45) days
from the date of receipt of this written notice of decision."
In August 2004, complainant, through the assistance of Attorney 1,
submitted a second reasonable accommodation request to be reassigned
to the Miami, Florida office. This request was denied on November 1,
2004. The RAC reviewed the denial of the request. In a November 8,
2004 memorandum, the RAC upheld the denial of complainant's request for
reassignment to the Miami office on the grounds that there were no vacant
positions located in Miami. The record reveals the November 8, 2004
RAC decision was sent to complainant and a copy was sent to Attorney 1.
The letter informed complainant that if she is not satisfied with the RAC
decision she had the option of "[f]iling an EEO discrimination complaint
within forty-five (45) days from the date of receipt of this written
notice of decision."
The record discloses that the alleged discriminatory events occurred
on August 9, 2004, and November 8, 2004. Complainant did not contact
an EEO Counselor until January 21, 2005, which was beyond the 45-day
limitation period. The Commission has held that a failure to provide
a reasonable accommodation may constitute a recurring violation, that
is, a violation that recurs anew each day that the agency fails to
provide the accommodation. Harmon v. Office of Personnel Management,
EEOC Request No. 05980365 (November 4, 1999). In the present case,
however, complainant's requests for a reasonable accommodation were
expressly denied. See Bratton v. United States Postal Service, EEOC
Appeal No. 01A01488 (February 7, 2002). The agency's denials were
discrete events that should have triggered complainant's suspicion
of discrimination and hence her duty to contact an EEO Counselor.
Although the record reveals that complainant was hospitalized in June
2004, we note that she was discharged from the hospital on June 23, 2004.
We find complainant does not argue that she delayed in contacting an
EEO Counselor due to incapacitation and we find that she failed to
present evidence of incapacitation after her release from the hospital.
We find complainant failed to present evidence warranting an extension
of the applicable limitation period.
Accordingly, the agency's final order is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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), 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 (S0408)
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. 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 (Z1008)
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
July 16, 2009
__________________
Date
2
0120070309
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013