01A61754
06-16-2006
Francisca M. Moralez, Complainant, v. Elaine Chao, Secretary, Department of Labor, Agency.
Francisca M. Moralez,
Complainant,
v.
Elaine Chao,
Secretary,
Department of Labor,
Agency.
Appeal No. 01A61754
Agency No. F05-09-131
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated December 12, 2005, dismissing 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. Upon
review, the Commission finds that complainant's complaint was improperly
dismissed pursuant to 29 C.F.R. � 1614.107(a)(1) for failure to state a
claim.
During the period in question, complainant was employed as an Equal
Opportunity Specialist at a California facility of the agency. In a letter
dated March 28, 2005, complainant asked the agency to provide her with an
electric scooter and allow her to work from her home several times per
week, so that she could perform the essential functions of her position.
In response, in a letter dated May 3, 2005, the agency asked complainant to
complete a medical release form authorizing the Public Health Service to
review her medical information and submit documentation completed by a
license medical professional explaining the nature, severity and duration
of complainant's illness, the manner in which complainant's illness
affected her performance of the essential functions of her position, and
what accommodation complainant needed. On May 19, 2005, complainant
initiated contact with an EEO Counselor, and, on August 17, 2005, filed a
formal EEO complaint alleging that the agency discriminated against her on
the basis of disability (Rheumatoid Arthritis) when it requested additional
medical documentation to process her request for reasonable accommodation,
thereby, denying her reasonable accommodation for that time. As a remedy,
complainant requested reasonable accommodation, restoration of leave she
used because she could not maneuver her office in a manual wheel chair or
walk, and reimbursement for the rental of a wheel chair for use at work.
In a decision dated December 12, 2005, the agency dismissed complainant's
claim for failure to state a claim. The agency explained that complainant
failed to engage in the interactive process and that it did not deny
complainant's request for accommodation and she is not aggrieved by its
request for additional documentation.
We find that the agency based its dismissal on its view of the ultimate
merit of complainant's claim. EEOC regulations authorize an agency to
dismiss an EEO complaint that fails to state a claim for which relief can
be granted. See 29 C.F.R. � 1614.107(a)(1); Diaz v. Department of the Air
Force, EEOC Request No. 05931049 (April 21, 1994). The standard that must
be met to justify a dismissal on this ground is similar to that required by
the courts under Fed. R. Civ. P. 12(b)(6). See Cobb v. Dep't of the
Treasury, EEOC Request No. 05970077 (Mar. 13, 1997). The claims in a
complaint must be taken as true and all reasonable inferences must be drawn
in favor of the complainant. Id. It is well settled that a complaint
should not be dismissed for failure to state a claim unless it appears
beyond doubt that no set of facts can be established that would entitle the
complainant to the relief sought in the complaint. Id. (citing Conley v.
Gibson, 355 U.S. 41 (1957)).
The instant complaint and accompanying documents clearly indicate that
complainant is challenging the agency's request for additional medical
documentation after she submitted medical documentation and the delay that
its request placed on her receiving reasonable accommodation. If
complainant's claim that the agency requested additional medical
documentation inappropriately and effectively denied her accommodation for
that period by doing so was proven to be true, she would obviously be
entitled to relief under the Rehabilitation Act. As a result, the agency
erred in dismissing her complaint under 29 C.F.R. � 1614.107(a)(1).
Accordingly, the agency's final decision dismissing complainant's complaint
is reversed and the complaint is remanded to the agency for further
processing in accordance with this decision and the Order below.
ORDER (E0900)
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 (K0501)
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 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 (M0701)
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 tends 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 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 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 (R0900)
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 (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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
June 16, 2006
__________________
Date