0120152868
04-14-2016
Leona L,1 Complainant, v. Ray Mabus, Secretary, Department of the Navy, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Leona L,1
Complainant,
v.
Ray Mabus,
Secretary,
Department of the Navy,
Agency.
Appeal No. 0120152868
Agency No. 15-68836-00922
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated August 10, 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.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Human Resources Specialist at the Agency's facility in Norfolk, Virginia.
On July 14, 2016, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination on the bases of disability and reprisal for prior protected EEO activity under Section 501 of the Rehabilitation Act of 1973 when:
1. From January 2015 to June 2015, Complainant was subjected to a Hostile Work Environment by her supervisor (the Supervisor);
2. From January 2015 to June 2015, the Agency failed to provide Complainant with her request for reasonable accommodation. Complainant also asserted that, due to her un-accommodated, illness-related absences, she was subject to two disciplinary actions. Namely, on March 16, 2015, Complainant was issued a Leave Restriction Letter and a Letter of Caution concerning issues with her ability to perform the job timely. Also, on May 4, 2015, Complainant received a letter offering reassignment as an accommodation with an accompanying "Acceptance/Declination of Option of Reassignment." She was informed by the Reasonable Accommodation Manager that the search would be for a part-time position based on information from her medical provider. Complainant believed that this was not a "reasonable" offer.
The Agency dismissed claim (1) pursuant to 29 C.F.R. � 1614.107(a)(5) for mootness. The Agency noted that it conducted an internal investigation as to Complainant's claim of harassment and management took steps to permanently separate Complainant from the Supervisor. Therefore, the Agency found claim (1) to be moot. The Agency dismissed claim (2) pursuant to 29 C.F.R. � 1614.107(a)(1) for failure to state a claim. The Agency noted that Letter of Caution and the Leave Restriction Letter were not considered disciplinary actions. Therefore, Complainant failed to show she was harmed. Further, to the extent Complainant asserted that she was denied a reasonable accommodation, the Agency noted that it made good faith efforts to accommodate Complainant's medical condition. The Agency held that it provided Complainant was an offer of reassignment for which she was qualified and which she accepted. As such, the Agency dismissed claim (2) for failure to state a claim. This appeal followed.
ANALYSIS AND FINDINGS
The Agency dismissed claim (1) for mootness. The regulation set forth at 29 C.F.R. � 1614.107(a)(5) provides for the dismissal of a complaint when the issues raised therein are moot. To determine whether the issues raised in Complainant's complaint are moot, the factfinder must ascertain whether (1) it can be said with assurance that there is no reasonable expectation that the alleged violation will recur; and (2) interim relief or events have completely and irrevocably eradicated the effects of the alleged discrimination. See County of Los Angeles v. Davis, 440 U.S. 625, 631 (1979); Kuo v. Dep't of the Navy, EEOC Request No. 05970343 (July 10, 1998). When such circumstances exist, no relief is available and no need for a determination of the rights of the parties is presented.
As to the complaint as a whole, Complainant also sought compensatory damages. Because Complainant requested compensatory damages, the Agency should have requested that Complainant provide some objective proof of the alleged damages incurred, as well as objective evidence linking those damages to the adverse action at issue. See Allen v. U.S. Postal Serv., EEOC Request No. 05970672 (June 12, 1998); Benton v. Dep't. of Defense, EEOC Appeal No. 01932422 (Dec. 3, 1993). As the Agency did not address the issue of compensatory damages, we find that dismissal of the complaint is improper. See Rouston v. Nat'l. Aeronautics and Space Admin., EEOC Request No. 05970388 (Mar. 18, 1999). As such, we find that the Agency's dismissal of claim (1) was not appropriate.
The Agency dismissed claim (2) pursuant to 29 C.F.R. � 1614.107(a)(1) for failure to state a claim. 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 (Apr. 21, 1994).
The Agency asserted that the Leave Restriction Letter and the Letter of Reprimand were not disciplinary actions. We find that Complainant alleged a series of events which allegedly occurred from January 2015 to June 2015. Specifically, Complainant alleged that she was denied her request for reasonable accommodation. As a result of the Agency's failure to provide her with a reasonable accommodation, she was subjected to a leave restriction; issued a Letter of Caution; and offered a reassignment. Instead of treating these events as incidents of the claim of harassment and denial of reasonable accommodation, the Agency looked at them individually. Thus, we find that the Agency acted improperly by treating matters raised in Complainant's complaint in a piecemeal manner. See Meaney v. Dep't of the Treasury, EEOC Request No. 05940169 (Nov. 3, 1994) (an agency should not ignore the "pattern aspect" of a complainant's claims and define the issues in a piecemeal manner where an analogous theme unites the matter complained of). Consequently, when Complainant's claims are viewed in the context of Complainant's complaint of harassment and denial of reasonable accommodation, they state a claim and the Agency's dismissal of claim (2) for failure to state a claim was improper.
In addition, the Agency final decision dismissed claim (2) for failure to state a claim asserting that the Agency made good faith effort at the reasonable accommodation process. After a review of its final decision, the Commission finds that the Agency has addressed the merits of Complainant's complaint without a proper investigation as required by the regulations. We find that the Agency's determination that it "made a good faith effort at the Reasonable Accommodation process" and that it provided Complainant with an effective reasonable accommodation, goes to the merits of Complainant's complaint, and is irrelevant to the procedural issue of whether she has stated a justiciable claim under the Rehabilitation Act. See Osborne v. Dep't of the Treasury, EEOC Request No. 05960111 (July 19, 1996); Lee v. U.S. Postal Serv., EEOC Request No. 05930220 (Aug. 12, 1993); Ferrazzoli v. U.S. Postal Serv., EEOC Request No. 05910642 (Aug. 15, 1991). As such, we again find that the Agency's dismissal of claim (2) was not appropriate.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we REVERSE the Agency's final decision and REMAND the matter for further processing in accordance with the ORDER below.
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 (M0815)
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, P.O. Box 77960, Washington, DC 20013. 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
April 14, 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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