0120161015
05-06-2016
Justine R.,1 Complainant, v. Ashton B. Carter, Secretary, Department of Defense (Defense Finance & Accounting Service (DFAS)), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Justine R.,1
Complainant,
v.
Ashton B. Carter,
Secretary,
Department of Defense
(Defense Finance & Accounting Service (DFAS)),
Agency.
Appeal No. 0120161015
Agency No. DFAS-00089-2015
DECISION
On January 16, 2016, Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from a final Agency decision (FAD) dated December 18, 2015, 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.
At the time of events giving rise to this complaint, Complainant worked as a Labor and Employee Relations Specialist, GS-11 at the Agency's DFAS Indianapolis, Indiana site (DFAS-IN), also known as the Major General Emmett J. Bean Federal Center.
On October 23, 2015, Complainant filed a formal complaint alleging that the Agency discriminated against her based on her disability when:
1. From March 14, 2015 and ongoing, she has not been provided accessible parking; and
2. Bathroom soap dispensers in most bathrooms are not within her reach.
Complainant submitted a letter from a health care provider indicating the following: She has juvenile rheumatoid arthritis which has been treated with multiple joint replacement surgeries. She has significant joint damage, including an extremely limited range of motion in all her joints, significant bone loss, and chronic pain. Falls are catastrophic for her as she is unable to catch herself while falling resulting in concussions and broken bones from past falls.
DFAS-IN is located in a building which is owned and managed by the United States General Services Administration (GSA). GSA also owns and maintains the parking lot and is in charge of the parking program.
Complainant alleges that she has been consistently requesting an accessible parking space, to no avail. In her complaint, she contended that DFAS Site Support has refused to provide an accessible parking program.
The record reflects that in October 2015, Complainant also filed a complaint against GSA regarding the failure to provide accessible parking, and bathroom soap dispensers within her reach. In an email to GSA, Complainant wrote that it denied her requests for accessible parking. GSA accepted the complaint on February 12, 2016. According to the acceptance letter, Complainant learned in December 2015, that GSA denied a DFAS request for an assigned, accessible parking place for her.
The Agency dismissed the complaint on the ground that it should be filed against GSA, not DFAS. It cites 29 C.F.R. � 1614.106, which reads that a complaint must be filed against the agency that allegedly discriminated against the complainant. It also cites Donovan v. Department of Defense (Defense Contract Audit Agency), EEOC Appeal No. 01956513 (Sep. 23, 1996). Therein, we found that the Defense Contract Audit Agency properly dismissed the complainant's claim that the Defense Logistics Agency, a separate Agency, did not provide him a "handicapped" parking space since the claim should be filed with the Defense Logistics Agency (on appeal, the complainant wrote that he did so). But we also found that the Defense Contract Audit Agency properly accepted the complainant's claim that it conspired with the Defense Logistics Agency regarding the latter's failure to provide the parking space.
Here, Complainant is alleging that DFAS is also responsible for the failure to provide her with accessible parking and soap dispensers within her reach. This states a claim. While DFAS contends that this is the responsibility of GSA, this is a matter which needs to be sorted out on the merits.
Accordingly, the FAD is REVERSED.
ORDER (E0610)
The Agency is ordered to process the remanded claims in accordance with 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 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 (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.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0416)
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. The requests 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 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
May 6, 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.
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