EEOC Appeal No. 0120172781
11-09-2017
Judie D. v. Soc. Sec. Admin.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Judie D,1
Complainant,
v.
Nancy A. Berryhill,
Acting Commissioner,
Social Security Administration,
Agency.
Appeal No. 0120172781
Agency No. ATL-17-0558
DECISION
Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's decision dated June 29, 2017, 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.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Benefit Authorizer at the Agency's facility in Birmingham, Alabama.
On June 12, 2017, Complainant filed a formal EEO complaint when she was denied a reassignment/permanent transfer to the Agency's office in Mobile, Alabama which she requested on February 28, 2017. Complainant indicated that she requested the transfer to care for her husband while he was undergoing chemotherapy. Complainant asserted that she was denied the permanent reassignment, and noted that her husband later died due to a fall which she implies might have been avoided had she been there.
The Agency dismissed the complaint. The Agency determined that Complainant alleged a claim of discrimination based on her marital status. The Agency found that such a claim was not within the Commission's jurisdiction. Therefore, the Agency issued its final decision dismissing the complaint, pursuant to 29 C.F.R. � 1614.107(a)(1), for failure to state a claim.
This appeal followed.
ANALYSIS AND FINDINGS
The regulation set forth at 29 C.F.R. � 1614.107(a)(1) provides, in relevant part, that an agency shall dismiss a complaint that fails to state a claim. An agency shall accept a complaint from any aggrieved employee or applicant for employment who believes that he or she has been discriminated against by that agency because of race, color, religion, sex, national origin, age or disabling condition. 29 C.F.R. �� 1614.103, .106(a). The Commission's federal sector case precedent has long defined an "aggrieved employee" as one who suffers a present harm or loss with respect to a term, condition, or privilege of employment for which there is a remedy. Diaz v. Dep't of the Air Force, EEOC Request No. 05931049 (April 21, 1994).
Here, Complainant stated in her formal complaint that she needed to care for her husband while he was undergoing cancer treatment. As such, she requested a reassignment to the Mobile facility. We note that the EEO Counselor only spoke to Complainant about her claim on the basis of "marital status," which the Agency correctly determined was not under one of the statutes covered by the 29 C.F.R. Part 1614 EEO complaint process. However, the EEO Counselor did not provide Complainant with any information concerning the possibility of alleging a claim under the Rehabilitation Act.
The standards used to determine whether the Rehabilitation Act has been violated are the same standards as the Americans with Disabilities Act (ADA). See 29 C.F.R. � 1614.203(b). The association provision of the ADA prohibits employment discrimination against a person, whether or not she has a disability, because of her known relationship or association with a person with a known disability. See Gholston v. Dep't of the Army, EEOC Appeal No. 01941796 (July 5, 1994); request to reopen denied, EEOC Request No. 05940857 (May 23, 1996); see also EEOC's "Questions and Answers: Association Provision of the ADA" (10/17/05).
Here, to the extent that Complainant is raising a claim of disparate application of the Agency's reassignment policy because of her association with her husband, a person with a disability, she has stated a valid claim under the Rehabilitation Act, and the Agency erred in dismissing the claim. Such a disparate treatment claim requires investigation and further processing. We note, however, that the Commission has held that individuals with a relationship or association with a person with a disability are not entitled to receive reasonable accommodation. EEOC's Enforcement Guidance on Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act at n. 5 (October 17, 2002); Brooks v. Dept. of Veterans Affairs, EEOC Appeal No. 01A32247 (August 7, 2003). Therefore, to the extent that Complainant is asserting a failure to accommodate under the Rehabilitation Act, she has not stated a claim.
CONCLUSION
Accordingly, the agency's decision to dismiss complainant's complaint is REVERSED. The complaint is REMANDED to the agency for further processing in accordance with this decision and the ORDER below.
ORDER (E1016)
The Agency is ordered to process the remanded claims in accordance with 29 C.F.R. � 1614.108 et seq. The Agency shall acknowledge to the Complainant that it has received the remanded claims within thirty (30) calendar days of the date this decision was issued. 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 was issued, 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 (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.
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. 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
November 9, 2017
__________________
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.
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