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.