0120140935
04-15-2016
George V.,1 Complainant, v. Deborah Lee James, Secretary, Department of the Air Force, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
George V.,1
Complainant,
v.
Deborah Lee James,
Secretary,
Department of the Air Force,
Agency.
Appeal No. 0120140935
Agency No. 9H1C13010
DECISION
Complainant filed a timely appeal with this Commission from the Agency's final decision dated January 14, 2013, dismissing a formal 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
During the period at issue, Complainant worked as a Custodial Worker at the Agency's Nellis Air Force Base in Las Vegas, Nevada.2
On April 19, 2013, Complainant initiated EEO Counselor contact. Informal efforts to resolve his concerns were unsuccessful.
On August 1, 2013, Complainant filed a formal complaint. Therein, Complainant claimed that the Agency subjected him to discrimination on the bases of race and disability.
On January 14, 2013, the Agency issued the instant final decision. Therein, the Agency determined that the formal complaint was comprised of the following three claims:
a. on April 20, 2013, Complainant did not receive his Step 3 grievance from [a named Lieutenant Colonel];
b. on September 10, 2010, management treated him unfairly and unequally after he filed a workers compensation claim; and
c. on January 14, 2013, management asked him to attend a "Fit for Duty" meeting to consider if he could continue to work.
The Agency dismissed, without elaboration, the formal complaint, on various grounds. First, the Agency dismissed the formal complaint pursuant to 29 C.F.R. � 1614.107(a)(5), on the grounds of mootness. The Agency also dismissed the formal complaint on the alternative grounds of untimely EEO Counselor contact, pursuant to 29 C.F.R. � 1614.107(a)(2); and that the claims had not been raised with an EEO Counselor and that they are not "like and related" to matters for which Complainant underwent EEO counseling, pursuant to 29 C.F.R. � 1614.107(a)(2).
The instant appeal followed. In response, to Complainant's appeal, the Agency merely argues that claims a - b were properly dismissed for untimely EEO Counselor contact.
ANALYSIS AND FINDINGS
As a threshold matter, we find that the Agency improperly fragmented Complainant's claim of ongoing discriminatory harassment/hostile work environment by dismissing the formal complaint on various procedural grounds.
Not like or related to a matter that has been brought to EEO Counselor
The Agency found that claims a - c should be dismissed because they were not raised before the EEO Counselor. We note, however, that pursuant to 29 C.F.R. � 1614.106(d), a complainant may amend a complaint at any time prior to the conclusion of the investigation to include issues or claims like or related in the formal complaint. A fair reading of the instant record reflects that Complainant alleged that he was being subjected to comprehensive ongoing harassment by various Agency officials. In addition, the formal complaint contains additional examples of alleged harassment by the same Agency officials which are like or related to the instances alleged in the informal complaint. Therefore, we find that the Agency improperly dismissed claims a - c on the grounds that these claims have not been raised with an EEO Counselor and that they are not like or related to the matters for which Complainant underwent EEO counseling.
Untimely EEO Counselor contact
The Agency also improperly dismissed claims a - c on the grounds of untimely EEO Counselor contact. The record reflects that Complainant initiated EEO Counselor contact on
April 19, 2013. The Commission has held that "[b]ecause the incidents that make up a hostile work environment claim collectively constitute one unlawful employment practice, the entire claim is actionable, as long, as at least one incident that is part of the claim occurred within the filing period. This includes incidents that occurred outside the filing period that the [Complainant] knew or should have known were actionable at the time of their occurrence." EEOC Compliance Manual, Section 2, Threshold Issues at 2 - 75 (revised July 21, 2005) (citing National Railroad Passenger Corp. v. Morgan, 536 U.S. 101, 117 (2002)).
The record reflects that various incidents comprising Complainant's hostile work environment claim occurred within the 45-day time period preceding Complainant's April 19, 2013 EEO Counselor contact, as discussed above. Because a fair reading of the record reflects that the matters identified in claims a - c is part of that harassment claim, we find that the Agency improperly dismissed these claims on the grounds of untimely EEO Counselor contact.
Moreover, it is significant to note that the matters raised by Complainant address the issue of an ongoing reasonable accommodation denial. 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 2-73 (Revised July 21, 2005). The Supreme Court has held that a Complainant alleging a hostile work environment will not be barred if all acts constituting the claim are part of the same unlawful practice and at least one falls within the filing period. See National Railroad Passenger Corp. v. Morgan, 122 S. Ct. 2061 (June 10, 2002). This principal applies to this case as it is clear that Complainant initiated contact with an EEO Counselor within the regulatory time frame, at a minimum, in regard to the above referenced reasonable accommodation issue. As this matter was timely raised with an EEO Counselor, the other incidents of alleged harassment identified by Complainant will be construed as timely raised with an EEO Counselor as well.
Mootness
EEOC Regulation 29 C.F.R. � 1614.107(a)(5) provides that the Agency shall dismiss a complaint that is moot. To determine whether the issues raised in Complainant's complaint remain in dispute, it must be ascertained (1) if it can be said with assurance that there is no reasonable expectation that the alleged violation will recur, and (2) if the interim relief or events have completely irrevocably eradicated the effects of the alleged violations. See County of Los Angeles v. Davis, 440 U.S. 625 (1979). When such circumstances exist, no relief is available and no need for a determination of the rights of the parties is presented.
The instant formal complaint has not been rendered moot. A fair reading of the formal complaint reflects that Complainant has made a request for compensatory damages. The Agency must address the issue of compensatory damages when a complainant presented objective evidence that he or she incurred compensatory damages and that such damages were related to the alleged discrimination. See Jackson v. USPS, EEOC Appeal No. 01923399 (November 12, 1992), request to reopen denied, EEOC Request No. 05930386 (February 11, 1993). Consequently, where, as here, a Complainant makes a request for compensatory damages during complaint processing, the Agency is obligated to request objective evidence of such damages. Should Complainant prevail in his claim, the possibility of compensatory damages award exists, and Complainant's claim is not moot.
We REVERSE the Agency's final decision dismissing Complainant's formal complaint, defined herein as a harassment claim, and we REMAND this matter to the Agency for further processing in accordance with the ORDER below.
ORDER
The Agency is ordered to process the remanded claim (harassment/hostile work environment and violation of Rehabilitation Act) in accordance with 29 C.F.R. � 1614.108. The Agency shall acknowledge to the Complainant that it has received the remanded claim 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 (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainants Right to File a Civil Action for the specific time limits).
FOR THE COMMISSION:
______________________________ Carlton M. Hadden's signature
Carlton M. Hadden, Director
Office of Federal Operations
April 15, 2016
__________________
Date
1 This case has been randomly assigned a pseudonym which will replace Complainant's name when the decision is published to non-parties and the Commission's website.
2 The record reflects that on May 13, 2013, Complainant was terminated from Agency employment.
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