Karyn Knott, Complainant,v.John Whitmore, Acting Administrator, Small Business Administration, Agency.

Equal Employment Opportunity CommissionSep 12, 2002
01986973 (E.E.O.C. Sep. 12, 2002)

01986973

09-12-2002

Karyn Knott, Complainant, v. John Whitmore, Acting Administrator, Small Business Administration, Agency.


Karyn Knott v. Small Business Administration

01986973

September 12, 2002

.

Karyn Knott,

Complainant,

v.

John Whitmore,

Acting Administrator,

Small Business Administration,

Agency.

Appeal No. 01986973

Agency No. 1195504

DECISION

INTRODUCTION

Complainant initiated an appeal of a final agency decision (FAD)

concerning 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., the Age Discrimination in Employment Act

of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq., and Section 501

of the Rehabilitation Act of 1973, as amended, 29 U.S.C. � 791 et seq.

For the reasons stated herein, the agency's FAD is reversed and remanded.

ISSUE PRESENTED

The issue on appeal is whether complainant has established that the agency

discriminated against her on the bases of race (African-American),

religion (Baptist), sex (female), age (over 40 years of age), and

disability (back problems and asthma) when it terminated her employment

with the agency effective August 11, 1995<1>.

BACKGROUND

Complainant was employed as a General Business and Industry Specialist,

GS-13, at a District of Columbia facility of the agency. Prior to the

period in question, complainant suffered injuries in a serious car

accident which require her to walk with the aid of a cane and later

suffered injury to her back and legs when she fell out of a chair at

work. In August 1994, complainant inhaled toxic fumes from a carpet

installation at the agency. This work-related incident resulted in

violent coughing that exacerbated pain in complainant's back and legs as

well as caused complainant respiratory distress and lung inflammation.

The Office of Workers' Compensation (OWCP) accepted complainant's August

1994 work-related injury claim and complainant was on leave indefinitely

for physical therapy and outpatient treatment. In June 1995, the agency

notified complainant of her proposed removal from the agency for �physical

inability to perform the duties of [her] officially assigned position.�

The proposed removal was affirmed and made effective August 11, 1995.

Complainant, believing she was a victim of discrimination, sought EEO

counseling and, subsequently, filed a �mixed case complaint�<2> alleging

that the agency discriminated against her based on race, religion, sex,

age, and disability when it terminated her employment because she could

not return to the agency work-site to perform the duties of her position

although she could perform those duties at an alternative work-site,

her home.

The agency stated that complainant's employment was terminated because her

doctors were ambiguous about the date in which she could return to work

and the agency needed the duties of complainant's position performed.

It further stated that complainant did not pursue an accommodation and

that, even if she did ask to work from an alternative site, her position

could not accommodate that request.

At the conclusion of the investigation, the agency issued a FAD finding

no unlawful employment discrimination and informing complainant of her

right to file an appeal with this Commission.<3> This appeal followed.

ANALYSIS AND FINDINGS

Pursuant to 29 C.F.R. � 1614.302(d)(3), the agency should have informed

complainant of her right to file an initial appeal with the Merit Systems

Protection Board (MSPB) rather than the Commission because her claim

is a mixed case complaint. However, because the complaint is firmly

enmeshed in the EEO process, the Commission will assume jurisdiction

over the complaint.

The Commission notes that complainant has not had an opportunity to

request a hearing before an EEOC administrative judge (AJ). As such,

she has not had an opportunity to have her case heard. On appeal,

complainant requested a hearing. The Commission finds that the matter

should be remanded for a hearing so that the record can be further

developed. The record as it currently exists is not fully developed

regarding (1) the essential functions versus the marginal functions of

complainant's position, (2) the long term prognosis for complainant,

and (3) the biographical data of comparator employees who were allowed

to work from an alternative work-site. Accordingly, we find that the

matter should be remanded to an AJ.

CONCLUSION

After a careful review of the record, including complainant's contentions

on appeal, the agency's response, and arguments and evidence not

specifically addressed in this decision, we VACATE the agency's finding

of no discrimination. As such, this case is REMANDED to the agency for

processing in accordance with this decision and the order below.

ORDER

The agency shall submit to the Hearings Unit of the Washington Field

Office the request for a hearing within fifteen (15) calendar days of

the date this decision becomes final. The agency is directed to submit a

copy of the complaint file to the EEOC Hearings Unit within fifteen (15)

calendar days of the date this decision becomes final. The agency shall

provide written notification to the Compliance Officer at the address set

forth below that the complaint file has been transmitted to the Hearings

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 (K0501)

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 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 (M0701)

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), 9-18 (November 9, 1999). 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 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 (R0900)

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:

______________________________

Carlton M. Hadden, Director

Office of Federal Operations

September 12, 2002

__________________

Date

1Complainant filed a civil action which also

addressed her termination on November 3, 2000. The action was dismissed

without prejudice on May 15, 2001.

2A �mixed case complaint� is a complaint of employment discrimination

filed with a Federal agency based on race, color, religion, sex, national

origin, age or [disability] related to or stemming from an action that

can be appealed to the MSPB. 29 C.F.R. � 1614.302(a).

3There is no indication in the record that the agency informed complainant

of the right to a hearing before an EEOC administrative judge.