0120151001
04-19-2016
Joleen M.,1 Complainant, v. Carolyn W. Colvin, Acting Commissioner, Social Security Administration, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Joleen M.,1
Complainant,
v.
Carolyn W. Colvin,
Acting Commissioner,
Social Security Administration,
Agency.
Appeal No. 0120151001
Agency No. ATL140572SSA
DECISION
Complainant timely appealed to this Commission from the Agency's December 8, 2014 dismissal of 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.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as an Attorney Advisor (GS-12) at the Agency's Office of Disability and Adjudication Review ("ODAR") in Fort Lauderdale, Florida.
On September 11, 2014, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination and harassment on the basis of her physical disabilities and reprisal for prior protected EEO activity when:
1. Since 2011, she was denied reasonable accommodations;
2. In January 2014, her request to earn compensatory time in lieu of overtime was denied;
3. On an unspecified date, management ignored regulatory time limits in responding to her union grievance over Agency restrictions on compensatory time; and
4. The Agency subjected her to a hostile work environment when:
a. In January 2011, she periodically worked with an individual who she alleges subjected her to a hostile work environment;
b. On January 30, 2014, she was denied previously approved reasonable accommodations when she was not permitted work from home when the restrooms on her floor were not working;
c. In March 2014, her request for an accommodation was denied; and
d. In May 2014, her second request for accommodation was delayed while she was required to provide additional medical documentation.
When Complainant began working at ODAR in 2011, she disclosed to management that she had a number of military service-related physical disabilities, including severe chronic carpel tunnel syndrome affecting her right (dominant) hand. Complainant acknowledges that the Agency provided most of her reasonable accommodation requests, such as immediate access to a restroom, the ability to work from home at least three days per week, lifting restrictions, and a mini-refrigerator in her work space for medication and food. Yet, the Agency denied Complainant's request to work from home when a plumbing malfunction on January 30, 2014 meant no working bathroom was available on Complainant's floor and there were long lines for the bathrooms that were available.
Another instance of inconsistent accommodations occurred on March 21, 2014. Complainant requested, in accordance with established office policy, to earn compensatory time in lieu of overtime when overtime was being offered. Complainant used these opportunities to obtain enough leave to cover her carpel tunnel surgery and medical appointments. Her supervisor ("S2") initially granted the request, then rescinded it, offering the opportunity to earn two hours of credit time instead. Management had changed the office policy based on a review of Complainant's request, so that compensatory time was no longer available. Complainant filed a grievance, which she alleges contributed to the hostile work environment. The decision issued May 8, 2014 awarded Complainant 30 hours of compensatory time for hours she had not been allowed to work. Also on May 8, 2014 Complainant's requests for compensatory hours as a reasonable accommodation were allegedly delayed by the Agency.
Complainant's reprisal claim arises in part from a prior EEO Complaint against the Agency that was resolved via settlement agreement in 2010, as well as an EEO Complaint (Agency No. ATL100384) she brought in 2011, after arriving at ODAR. Complainant's supervisor ("S1") allegedly ignored her approved reasonable accommodations and refused to remove a conspicuously placed picture of a desk with a toilet instead of a desk chair and the caption, "no more bathroom breaks" after Complainant informed her it was offensive, given her disabilities. Although Complainant, per her request, was transferred to a new supervisor ("S2"), she alleges the hostile work environment continues because she still has to interact with S1.
The Agency dismissed the complaint in its entirety pursuant to 29 C.F.R. � 1614.107(a)(2) and 29 C.F.R. � 1614.106(b), for untimely filing of the formal complaint.
Claim 2 was also dismissed in accordance with 29 C.F.R. �1614.301; because Complainant elected to file a grievance on the same matter. Claim 3, which the Agency identified as a collateral attack on another agency's administrative process, was alternately dismissed for failure to state a claim under 29 C.F.R. �l614.l07(a)(1).
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. � 1614.106(b) requires the filing of a written complaint with an appropriate agency official within fifteen (15) calendar days after the date of receipt of the notice of the right to file a formal complaint. EEOC Regulation 29 C.F.R. � 1614.107(a)(2) provides that the agency shall dismiss a complaint that fails to comply with the applicable time limits contained in �� 1614.105, 1614.106, and 1614.204(c). This time limit is also subject to waiver, estoppel, and equitable tolling under 29 C.F.R. � 1614.604(c).
Where, as here, there is an issue of timeliness, "[a]n agency always bears the burden of obtaining sufficient information to support a reasoned determination as to timeliness." See Guy v. Dep't of Energy, EEOC Request No. 05930703 (Jan. 4, 1994) In the instant complaint, the Agency must prove that Complainant received the notice and that the notice clearly informed the aggrieved person of the 15-day filing time frame. See Paoletti v. United States Postal Serv., EEOC Request No. 05950259 (Aug. 17, 1995) We find the Agency met its burden.
The record discloses, and Complainant does not dispute, that she received the Agency's Notice of Right to File a Formal Complaint ("Notice") on August 12, 2014. The Agency provided sufficient evidence in the form of a delivery confirmation dated August 12, 2014, containing Complainant's address and an electronic tracking record indicating the Notice was signed for with Complainant's last name. The Notice itself clearly informed Complainant of the 15-day filing time frame. Complainant is also presumed on notice of EEO deadlines from her past EEO activity. The last day for Complainant to timely file her formal complaint was Wednesday, August 27, 2014. Complainant filed her formal complaint on September 11, 2014.
On appeal, Complainant argues, "while it may appear that the 15 days to file have passed, please be advised that I was on pre-approved medical leave from August 19, 2014 through September 2, 2014." She also alleges that she opened the Notice on September 3, 3014 the day she returned to work, and directs our attention to her signature on the form where she also wrote the date September 3, 2014. This is irrelevant, as the Agency successfully established a receipt date of August 12, 2014 (also by signature) at Complainant's address of record.
Complainant also seems to argue that her untimely filing should be excused because she had significant medical problems during this period, undergoing carpel tunnel surgery 7 days after receiving the Notice. Complainant explains on appeal that "it is very difficult to type using only [her] left hand" and that her "handwriting is generally illegible." When a complainant claims that a physical condition prevents her from meeting a particular filing deadline, we have held that in order to justify an untimely filing, a complainant must be so incapacitated by the condition as to render him physically unable to make a timely filing. See Zelmer v. United States Postal Serv., EEOC Request No. 05890164 (Mar. 8, 1989). While we sympathize with Complainant's medical ordeal, nothing in the statements provided by complainant supports a finding that she was so incapacitated throughout the applicable period as to prevent her from timely filing her complaint, or, at a minimum requesting an extension to respond within the proper time limits. Complainant has therefore failed to present adequate justification, pursuant to 29 C.F.R. � 1614.604(c), for extending the filing period.
The Agency's alternate grounds for dismissing Claims 2 and 3 are also proper.
CONCLUSION
Accordingly, the Agency's final decision dismissing Complainant's complaint is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION
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 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, 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
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
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.
Carlton M. Hadden, Director
Office of Federal Operations
April 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
0120151001
5
0120151001