01992755
12-22-1999
Julie Laird, Complainant, v. F. Whitten Peters, Acting Secretary, Department of the Air Force, (National Guard Bureau), Agency.
Julie Laird, )
Complainant, )
)
v. ) Appeal No. 01992755
) Agency No. T-0528-AK-F-98-H
F. Whitten Peters, )
Acting Secretary, )
Department of the Air Force, )
(National Guard Bureau), )
Agency. )
____________________________________)
DECISION
On February 17, 1999, complainant filed a timely appeal with this
Commission from a final agency decision (FAD), dated February 5, 1999,
pertaining to her complaint of unlawful employment discrimination in
violation of Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. � 2000e et seq. and Section 501 of the Rehabilitation Act of
1973, as amended, 29 U.S.C. � 791 et seq.<1> The Commission accepts
the appeal in accordance with EEOC Order No. 960, as amended.
Complainant contacted an EEO Counselor alleging that she was subjected to
unlawful employment discrimination when the agency failed to accommodate
her disability. Informal efforts to resolve complainant's concerns
were unsuccessful. Accordingly, on August 5, 1998, complainant filed
a formal complaint.
The agency issued a FAD dismissing complainant's complaint. The FAD
defined the claims in the following manner:
On May 29, 1998, management failed to accommodate complainant's
disability, which resulted in her leaving the work area and taking five
hours of leave; and,
On June 1, 1998, complainant was required to work in an area that was
aggravating her injury and management failed to accommodate her handicap.
The agency dismissed complainant's complaint for failure to state
a claim. Regarding the claims raised on the basis of disability, the
agency determined that �the protected status of [disability] applies
only to Competitive Technicians and not Excepted Technicians under the
Americans with Disabilities Act (ADA).� The agency also dismissed the
claims on the basis of sex<2>, stating that the alleged events failed
to state a claim of sex discrimination. Further, the FAD indicated that
complainant's continuing violation claim was unfounded.
Volume 64 Fed. Reg. 37,644, 37,656 (1999)(to be codified and hereinafter
cited as 29 C.F.R. � 1614.107(a)(1)) provides, in relevant part, that
an agency shall dismiss a complaint, or portion thereof, 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. 64 Fed. Reg. 37,644,
37,656 (1999)(to be codified and hereinafter referred to as 29 C.F.R. �
1614.103); � 1614.106(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. Department of the Air Force,
EEOC Request No. 05931049 (April 22, 1994).
The only proper questions in determining whether an allegation is
within the purview of the EEO process are (1) whether the complainant
is an aggrieved employee and (2) whether she has alleged employment
discrimination covered by the EEO statutes. An employee is �aggrieved�
if she has suffered direct and personal deprivation at the hands of the
employer. See Hobson v. Department of the Navy, EEOC Request No. 05891133
(March 2, 1990). In the instant case, complainant claims that management
failed to accommodate her disability, which has aggravated her condition
and caused her to use leave. Complainant's claims are sufficient to
render her an aggrieved employee. Because she has alleged that the
adverse action was based on disability and sex, she has raised claims
within the purview of the EEOC regulations.
The Commission notes that in the FAD, the agency contends that
�[e]xcepted Technician's positions are based on their membership in
the National Guard. Their status for military deployment and fitness
overrides their status as a technician. Therefore, the protected status
of Disability applies only to Competitive Technicians and not Excepted
Technicians under the American's with Disabilities Act.� We find that
the agency's determination that complainant is not protected by the ADA,
goes to the merits of the complaint, and is irrelevant to the procedural
issue of whether she has stated a justiciable claim under the regulations.
See Ferrazzoli v. U.S. Postal Service, EEOC Request No. 05910642 (August
15, 1991). Therefore, the agency improperly dismissed complainant's
basis of disability and reasonable accommodation claims.
The FAD also states, without elaboration, that complainant's claim of a
continuing violation that began after her injury and surgery in 1996 is
�unfounded�. The agency has not indicated that complainant's counselor
contact was untimely nor dismissed any claims as untimely. However,
we find it important to note that the agency's analysis is improper.
The Commission has held that a failure to accommodate may constitute
a recurring violation, that is, a violation that recurs anew each day
that an employer fails to provide the accommodation. See Mitchell
v. Department of Commerce, EEOC Appeal No. 01934120 (March 4, 1994).
Accordingly, the agency's decision to dismiss complainant's complaint
was improper, and is hereby REVERSED. The complaint is REMANDED to the
agency for further processing in accordance with this decision and the
Order below.
ORDER (E1199)
The agency is ORDERED to process the remanded claims in accordance with
64 Fed. Reg. 37,644, 37,656-7 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. � 1614.108). The agency shall acknowledge to
the complainant that it has received the remanded claims 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 an
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 (K1199)
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 19848,
Washington, D.C. 20036. 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 64
Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter
referred to as 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)(Supp. V 1993). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 64 Fed. Reg. 37,644, 37,659 (1999)
(to be codified and hereinafter referred to as 29 C.F.R. � 1614.409).
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1199)
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
64 Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. � 1614.405). All requests and arguments must be
submitted to the Director, Office of Federal Operations, Equal Employment
Opportunity Commission, P.O. Box 19848, Washington, D.C. 20036. 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 64 Fed. Reg. 37,644, 37,661 (1999)
(to be codified and hereinafter referred to as 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 (R1199)
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 (Z1199)
If you decide to file a civil action, and if you do not have or cannot
afford the services of an attorney, you may request that the Court appoint
an attorney to represent you and that the Court permit you to file the
action without payment of fees, costs, or other security. See Title VII
of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.;
the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c).
The grant or denial of the request is within the sole discretion of
the Court. Filing a request for an attorney does not extend your time
in which to file a civil action. Both the request and the civil action
must be filed within the time limits as stated in the paragraph above
("Right to File A Civil Action").
FOR THE COMMISSION:
Dec. 22, 1999
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing. I certify that
the decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
_______________ __________________________
Date Equal Employment Assistant
1On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply to all
federal sector EEO complaints pending at any stage in the administrative
process. Consequently, the Commission will apply the revised regulations
found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at WWW.EEOC.GOV.
2The Commission notes that complainant did not explicitly cite sex as a
basis in her formal complaint. However, the agency lists sex as a basis
in the FAD based on complainant's attachment to the formal complaint.