Jane K.,1 Complainant,v.Kirstjen M. Nielsen, Secretary, Department of Homeland Security (U.S. Coast Guard), Agency.

Equal Employment Opportunity Commission

Mar 16, 2018

0120180088 (E.E.O.C. Mar. 16, 2018)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Jane K.,1
Complainant,

v.

Kirstjen M. Nielsen,
Secretary,
Department of Homeland Security
(U.S. Coast Guard),
Agency.

Appeal No. 0120180088

Hearing No. 430-2014-00332X

Agency No. HS-USCG-00225-2014

DECISION

Complainant appeals to the Equal Employment Opportunity Commission (EEOC or
Commission) from the EEOC Administrative Judge (AJ)’s decision dated August 9, 2017, which
effectively became the Agency’s final decision, finding no discrimination with regard to her
complaint alleging 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. For the following reasons,
we VACATE the Agency’s final decision finding no discrimination.

BACKGROUND

The record indicates that Complainant, employed by the Agency as a Budget Analyst, GS-560-
12, in the U.S. Coast Guard Finance Center in Chesapeake, Virginia, filed her complaint on
January 6, 2014, alleging discrimination based on disability (osteoarthritis) and in reprisal for
prior EEO activity when:

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.
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From March 14, 2012, to present, management continuously failed to provide her a
reasonable accommodation.2

Upon completion of the investigation of the complaint, Complainant requested a hearing before
an AJ. On November 20, 2014, the Agency filed a Motion for Summary Judgment and
Complainant filed her response to the Agency’s motion on December 3, 2014. The Agency filed
its reply in support of its motion on December 8, 2014. On August 9, 2017, the AJ issued a
decision without holding a hearing, finding no discrimination. Therein, the AJ adopted the
factual summary and legal analysis put forth in the Agency’s Motion for Summary Judgment.
The Agency did not issue its final order within the requisite time frame and the AJ’s decision
thus effectively became the Agency’s final decision. 29 C.F.R. § 1614.109(i). Complainant
appeals the Agency’s final decision.

ANALYSIS AND FINDINGS

The Commission’s regulations allow an AJ to issue a decision without a hearing when he or she
finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). This regulation is
patterned after the summary judgment procedure set forth in Rule 56 of the Federal Rules of
Civil Procedure. The U.S. Supreme Court has held that summary judgment is appropriate where
a court determines that, given the substantive legal and evidentiary standards that apply to the
case, there exists no genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 255 (1986). In ruling on a motion for summary judgment, a court’s function is not to weigh
the evidence but rather to determine whether there are genuine issues for trial. Id. at 249. The
evidence of the non-moving party must be believed at the summary judgment stage and all
justifiable inferences must be drawn in the non-moving party’s favor. Id. at 255. An issue of
fact is “genuine” if the evidence is such that a reasonable fact finder could find in favor of the
non-moving party. Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital Equip.
Corp., 846 F.2D 103, 105 (1st Cir. 1988). A fact is “material” if it has the potential to affect the
outcome of the case. If a case can only be resolved by weighing conflicting evidence, issuing a
decision without holding a hearing is not appropriate.

In the context of an administrative proceeding, an AJ may properly consider issuing a decision
without holding a hearing only upon a determination that the record has been adequately
developed for summary disposition. See Petty v. Department of Defense, EEOC Appeal No.
01A24206 (July 11, 2003). Here, we find that the AJ improperly issued a decision without a
hearing.

In this case, the AJ adopted the factual summary and legal analysis put forth in the Agency’s
Motion for Summary Judgment. We note that the Agency in its motion stated that Complainant

2 Complainant also alleged in her complaint that on November 1, 2013, she was notified that she
did not meet the minimum job requirements for the Supervisory Accountant position. In her
response to the Agency’s Motion for Summary Judgment, Complainant withdrew this claim.
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contacted an EEO Counselor regarding her complaint on December 3, 2013, and thus the
incidents prior to October/November 2013, should be dismissed as untimely. The Agency
indicated that Complainant’s complaint should only encompass the timeframe of
October/November 2013, to the present. We disagree.

For the purpose of timeliness, the Commission has held that the denial of reasonable
accommodation constitutes a recurring violation that repeats each time the accommodation is
needed. See Harmon v. Office of Personnel Management, EEOC Request No. 05980365 (Nov.
4, 1999). Furthermore, the EEOC’s Compliance Manual, Section 2, “Threshold Issues,” p. 2-73,
EEOC Notice 915.003 (July 21, 2005), provides that “because an employer has an ongoing
obligation to provide a reasonable accommodation, failure to provide such accommodation
constitutes a violation each time the employee needs it.” In this case, Complainant alleged that
management continuously denied her requests for a reasonable accommodation since March 14,
2012, to the present. Thus, under the recurring violation theory, even assuming Complainant’s
EEO contact was December 3, 2013, we find that Complainant’s reasonable accommodation
claim was timely raised with an EEO Counselor. Therefore, the Agency’s dismissal of the
portion of Complainant’s complaint for untimely EEO Counselor contact was improper pursuant
to 29 C.F.R. § 1614.107(a)(2).

Turning to the Agency’s finding of no discrimination concerning the complaint, the record
indicates that at the relevant time, as a Budget Analyst, Complainant’s essential functions of her
job were to relieve the Cutters (ships) of accounting and budgetary tasks so they could focus on
the operational mission. Complainant indicated that she had osteoarthritis which caused pain and
affected the mobility in her hands, decreased pinch ability in her hands and grip strength, and
caused poor tolerance for tasks that involved tabbing through reports/ledgers, repetitive
keyboarding, and thumb motion. As a result, stated Complainant, she worked at a slower pace.

After a careful review of the record, we find that the AJ erred in finding there was no genuine
issue of material fact in dispute. The record indicates that Complainant’s supervisor stated
during the investigation of the instant complaint that Complainant did not request any
accommodations since he became her supervisor in October 2013. However, the record
indicates that on December 12, 2013, the supervisor sent an electronic message to Complainant
and two upper managerial officers informing them that he and Complainant discussed her
reasonable accommodation issues on December 11, 2013, concerning providing her with gloves,
an ergonomic keyboard, extra hours to complete her work, leave, and telework. Based on the
foregoing, we find that there is an issue of credibility that must be resolved as to whether the
supervisor was aware of Complainant’s disability (which he denied) and whether Complainant
requested a reasonable accommodation as alleged.

Furthermore, we find that the AJ accepted incomplete facts in reaching her decision. The
Agency’s Motion is devoid of any facts as to whether since March 14, 2012, she requested that
she be given reduced typing/keyboarding workload due to her claimed disability, but instead she
was continuously given more typing/keyboarding workload. The Agency did not provide any
facts which occurred from March 14, 2012, to October 2013.
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After a careful review of the Agency’s Motion for Summary Judgment, Complainant’s response
thereto, the Agency’s reply in support of its motion, and the AJ’s decision, we find that the AJ
erred in not considering Complainant’s version of the facts and instead solely relying on the
Agency’s incomplete facts. Furthermore, the AJ even failed to analyze the Agency’s dismissal
of the portion of the complaint as untimely raised before an EEO Counselor. Based on the
foregoing, we find that the complaint is not ripe for a decision without a hearing because the
record has not been adequately developed and there are genuine issues of material fact in dispute.
Therefore, we shall remand the complaint to the Agency for a hearing before an AJ.

CONCLUSION

The Agency’s final decision is VACATED and the complaint is REMANDED to the Agency for
further processing in accordance with this decision and the ORDER herein.

ORDER
The Agency shall submit to the Hearings Unit of the EEOC’s Charlotte District Office a request
for a hearing within 30 calendar days from the date this decision is issued. The Agency is
directed to submit a copy of this decision and the complaint file to the EEOC’s Hearing Unit
within 30 calendar days from the date this decision is issued. The Agency shall provide written
notification to the Compliance Officer at the address set forth herein that the complaint file has
been transmitted to the Hearing Unit. Thereafter, the Administrative Judge shall issue a decision
on the complaint in accordance with 29 C.F.R. § 1614.109 and the Agency shall issue a final
action in accordance with 29 C.F.R. § 1614.110.

IMPLEMENTATION OF THE COMMISSION’S DECISION (K0617)
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 in the digital format required by the Commission, and submitted via
the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). 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.
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STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
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. A party
shall have twenty (20) calendar days of receipt of another party’s timely request for
reconsideration in which to submit a brief or statement in opposition. See 29 C.F.R. § 1614.405;
Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110),
at Chap. 9 § VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the
Director, Office of Federal Operations, Equal Employment Opportunity Commission.
Complainant’s request may be submitted via regular mail to P.O. Box 77960, Washington, DC
20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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
agency’s request must be submitted in digital format via the EEOC’s Federal Sector EEO Portal
(FedSEP). See 29 C.F.R. § 1614.403(g). 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.
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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 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

March 16, 2018
Date