0520160250
10-19-2016
Harvey G.,1 Complainant, v. Sally Jewell, Secretary, Department of the Interior (Bureau of Reclamation), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Harvey G.,1
Complainant,
v.
Sally Jewell,
Secretary,
Department of the Interior
(Bureau of Reclamation),
Agency.
Request No. 0520160250
Appeal Nos. 0120132052 & 0120150844
Agency Nos. DOI- BOR-12-0127 & DOI-BOR-14-0053
DECISION ON REQUEST FOR RECONSIDERATION
The Agency timely requested reconsideration of the decision in EEOC Appeal No. 0120132052 & 0120150844 (February 4, 2016). 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(c).
At the time of events giving rise to this complaint, Complainant worked as an Engineering Technician (Drawing), GS-09, with the Agency's Bureau of Reclamation in Billings, Montana.
Complainant filed an EEO complaint (Agency No. DOI-BOR-12-0127) alleging that the Agency discriminated against him on the bases of disability (myasthenia gravis) and reprisal when:
1. On January 19, 2012, he received a memorandum which stated that he was not able to perform the essential functions of his current position, and that there were no reasonable accommodations that could be made to allow him to continue to work in his current position.
2. On February 2, 2012, he received a memorandum from the Agency offering him two Engineering Technician (Drawing), GS-09, positions. The memorandum stated "if you decline this offer, your declination will cancel any further consideration of reassignment as a reasonable accommodation. The Agency will initiate further action up to and including removal based on medical reasons since you are physically unable to perform the essential duties of your current position."
3. On February 9, 2012, he requested to be considered for a non-competitive appointment to the currently advertised IT Specialist position under Vacancy Announcement Nos. BR-DEGPMT-12-05 and BR-GP-MT-12-07.
4. He was not selected for the positions of IT Specialist advertised under BR-DEGP-MT-12-05 and BR-GP-MT-12-07.
5. The Human Resources Office breached his medical privacy when it opened a "blue envelope" addressed to OWCP without authorization sometime between January 21, 2012, and February 6, 2012.
6. A Human Resources Specialist falsified medical records related to his disability when she dated his OWCP Form CA-2 signature line as January 18, 2012, but he did not actually sign it until January 31, 2012.2
Complainant filed a second EEO complaint (DOI-BOR-14-0053) alleging that the Agency discriminated against him on the bases of disability and reprisal when:
7. He was not selected for the position of Engineering Technician, GS-9, advertised under Vacancy Announcement No. BR-GP-MT-13-46; and
8. On September 14, 2012, he was terminated from his position as an Engineering Technician.3 The Human Resources (HR) Office also did not issue him a Career Transition Assistance Plan/Interagency Career Transition Assistance Program (CTAP/ICTAP) Letter of Eligibility. Complainant claimed that by not being issued the CTAP/ICTAP Letter of Eligibility he was deprived of the preferences/advantages he would have otherwise enjoyed as an applicant.
The Agency concluded that no discrimination had been established with regard to all claims raised, and Complainant appealed.
Our prior appellate decision affirmed the Agency's finding of no discrimination with regard to claims 3 - 4. We also declined to address claim 7 and that portion of claim 8 regarding Complainant's eligibility for the CTAP/ICTAP. Complainant has not challenged these conclusions, so we will not address them further. However, we found that Complainant established that he was unlawfully denied reasonable accommodation for his disability when he was denied telework and thereafter terminated. In order to remedy Complainant for this discrimination, we ordered the Agency to reinstate him to an Engineering Technician (Drawing), GS-9 position, with any necessary effective reasonable accommodation, including telework. We also ordered back pay with interest, an opportunity to prove compensatory damages, training and consideration of disciplinary action for the responsible management officials and a posting notice.
The Agency filed a timely request for reconsideration of our decision in EEOC Appeal No. 0120132052.
In its request, the Agency first argues that Complainant never claimed that he was denied reasonable accommodation for his disability, including a denial of his request for telework, that resulted in his inability to work. The Agency now asserts the Commission improperly amended Complainant's complaints to reach this issue. We disagree. A fair reading of Complainant's two complaints in conjunction with each of shows clearly that Complainant challenged the Agency's decision to find him medically disqualified from continuing to perform in his Engineering Technician position due to the progression of his symptoms of myasthenia gravis, which included a medical restriction on extended periods of driving and limitations on overnight travel. He further challenged the Agency's attempt to offer him two alternative positions, both located a considerable distance (90 to 250 miles) from his home in Billings, Montana. Complainant was forced to decline these positions because they were in violation of his medical restriction prohibiting long driving commutes. The language in the offer for these two positions explicitly stated that his "declination [would] cancel any further consideration of reassignment as a reasonable accommodation for [his] medical condition" and the Agency would initiate action to remove him from his position.
Meanwhile, the record clearly establishes that starting in March 2012, Complainant requested that he be allowed to telework, at least on a part-time basis, in order to remain in his original Billings position, including completing and submitting a signed telework agreement. It is further undisputed that this request was denied by management in March 2012.4 Complainant went on extended medical leave in April 2012, and in September 2012, he was issued a notice of non-disciplinary removal effective September 14, 2012. In October 2012, Complainant applied for disability retirement, which was eventually approved by the Office of Personnel Management.
While the Agency makes much of Complainant not formally "amending" his complaint to include his request for telework, the record supports our previous finding that this was not necessary. Complainant had clearly raised a denial of reasonable accommodation claim in conjunction with his challenge to the Agency's decision to medically disqualify him from his Billings position. Moreover, he had specifically raised telework, among other requested accommodations, during EEO counseling, and evidence concerning the denial of his telework request in March 2012 is contained in the investigative report. We find that this was sufficient to alert the Agency to this issue during the adjudication of this matter.
The Agency also reaffirms its prior argument that Complainant's claim concerning the notice of removal was untimely raised, and asserts that our previous decision erred in finding it was part of a continuing violation with the failure to accommodate claim. As a discrete act, the Agency argues that even if the removal was the direct result of the timely raised failure to accommodate claim, Complainant failed to specifically challenge his removal within the 45-day limitation period.
However, in this case although Complainant did not explicitly raise a timely claim of discriminatory removal, reinstatement here was an appropriate remedy because the Agency's action in denying reasonable accommodation resulted in Complainant's inability to continue working. See Blount v. Dep't of Homeland Security, EEOC Appeal No. 0720070010 (October 21, 2009). In Blount, the issue, as in the instant case, involved the denial of a reasonable accommodation resulting in the Complainant's inability to work. Moreover, in Blount, the denial of reasonable accommodation, as here, culminated in the complainant taking a disability retirement. Notably, Blount did not explicitly address the issue of whether the complainant had been constructively discharged. Nevertheless, the Commission awarded the complainant reinstatement, among other relief.
Similar to Blount, we now clarify that although our prior decision might be interpreted as characterizing Complainant's claim as one of discriminatory discharge or constructive discharge (regarding the disability retirement), we now make clear that we find that Complainant's claim is more properly classified as a timely raised denial of reasonable accommodation resulting in the inability to work. As such, in furtherance of the goal of providing make-whole relief, the proper remedy following a finding that Complainant was not reasonably accommodated is to order the Agency to provide reasonable accommodation to Complainant and to reinstate him to the position in question, or to a substantially equivalent position. See Blount, EEOC Appeal No. 0720070010 at 6.
After reviewing the previous decision and the entire record, the Commission finds that the request fails to meet the criteria of 29 C.F.R. � 1614.405(c), and it is the decision of the Commission to deny the request. The decision in EEOC Appeal No. 0120132052 & 0120150844 remains the Commission's decision. There is no further right of administrative appeal on the decision of the Commission on this request. The Agency shall comply with the Order as set forth below.
ORDER
The Agency is ordered to take the following remedial action:
(1) Within sixty (60) calendar days of the date this decision becomes final, the Agency shall offer Complainant reinstatement into an Engineering Technician (Drawing), GS-9, position with any necessary effective reasonable accommodations, including telework, in accordance with this decision, retroactive to the effective date of Complainant's termination, September 14, 2012, with all the rights, benefits, and privileges. The Agency shall afford Complainant fifteen (15) days to determine whether to accept reinstatement. Should Complainant reject the offer of reinstatement, Complainant's entitlement to back pay shall terminate as of the date of his rejection.
(2) Within ninety (90) calendar days of the date this decision becomes final, the Agency shall determine the appropriate amount of back pay, with interest, and other benefits due to Complainant, pursuant to 29 C.F.R. � 1614.501. The Complainant shall cooperate in the Agency's efforts to compute the amount of back pay and benefits due, and shall provide all relevant information requested by the Agency. If there is a dispute regarding the exact amount of back pay and/or benefits, the Agency shall issue a check to the Complainant for the undisputed amount within ninety (90) calendar days of the date the Agency determines the amount it believes to be due. The Complainant may petition for enforcement or clarification of the amount in dispute. The petition for clarification or enforcement must be filed with the Compliance Officer, at the address referenced in the statement entitled, "Implementation of the Commission's Decision."
(3) The Agency shall also pay compensation for the adverse tax consequences of receiving back pay as a lump sum. Complainant has the burden of establishing the amount of increased tax liability, if any. Once the Agency has calculated the proper amount of back pay, Complainant shall be given the opportunity to present the Agency with evidence regarding the adverse tax consequences, if any, for which Complainant shall then be compensated.
(4) Within thirty (30) calendar days of the date this decision becomes final, the Agency shall give Complainant a notice of his right to submit objective evidence (pursuant to the guidance given in Carle v. Dep't of the Navy, EEOC Appeal No. 01922369 (Jan. 5, 1993)) in support of his claim for compensatory damages within forty-five (45) calendar days of the date Complainant receives the Agency's notice. The Agency shall complete the investigation on the claim for compensatory damages within forty-five (45) calendar days of the date the Agency receives Complainant's claim for compensatory damages. Thereafter, the Agency shall process the claim in accordance with 29 C.F.R. � 1614.108(f).
(5) Within ninety (90) days of the date on which this decision becomes final, the Agency shall provide eight (8) hours of EEO training for the Agency officials responsible for the denial of reasonable accommodation to Complainant. The training shall concern the Rehabilitation Act with an emphasis on reasonable accommodation and the Agency's duties to ensure that similar violations do not occur.
(6) The Agency shall consider taking disciplinary action against the Agency officials found to have discriminated against Complainant. The Agency shall report its decision. If the Agency decides to take disciplinary action, it shall identify the action taken. If the Agency decides not to take disciplinary action, it shall set forth the reason(s) for its decision not to impose discipline.
The Agency is further directed to submit a report of compliance, as provided in the statement entitled "Implementation of the Commission's Decision." The report shall include supporting documentation verifying that the corrective action has been implemented.
POSTING ORDER (G1016)
The Agency is ordered to post at its Bureau of Reclamation, Billings, Montana facility copies of the attached notice. Copies of the notice, after being signed by the Agency's duly authorized representative, shall be posted both in hard copy and electronic format by the Agency within 30 calendar days of the date this decision was issued, and shall remain posted for 60 consecutive days, in conspicuous places, including all places where notices to employees are customarily posted. The Agency shall take reasonable steps to ensure that said notices are not altered, defaced, or covered by any other material. The original signed notice is to be submitted to the Compliance Officer at the address cited in the paragraph entitled "Implementation of the Commission's Decision," within 10 calendar days of the expiration of the posting period.
ATTORNEY'S FEES (H1016)
If Complainant has been represented by an attorney (as defined by 29 C.F.R. � 1614.501(e)(1)(iii)), he/she is entitled to an award of reasonable attorney's fees incurred in the processing of the complaint. 29 C.F.R. � 1614.501(e). The award of attorney's fees shall be paid by the Agency. The attorney shall submit a verified statement of fees to the Agency -- not to the Equal Employment Opportunity Commission, Office of Federal Operations -- within thirty (30) calendar days of the date this decision was issued. The Agency shall then process the claim for attorney's fees in accordance with 29 C.F.R. � 1614.501.
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 (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 Complainant's 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
October 19, 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 Agency dismissed claims 5 - 6 for failure to state a claim. As Complainant did not challenge this dismissal in his original appeal, we declined to address these claims any further. Complainant has not asked us to reconsider that decision.
3 In a partial acceptance/partial dismissal notice dated April 14, 2014, the Agency dismissed Complainant's termination claim for untimely EEO counselor contact.
4 In its brief submitted on appeal, the Agency concedes that Complainant raised the issue of telework during EEO counseling, and evidence concerning the telework request appears in the report of investigation.
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