0120160300
01-14-2016
Man H.,1 Complainant, v. Robert McDonald, Secretary, Department of Veterans Affairs, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Man H.,1
Complainant,
v.
Robert McDonald,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120160300
Agency No. 200P-0691-2015104078
DECISION
Complainant filed a timely appeal with this Commission from the Agency's final decision dated September 10, 2015, dismissing his complaint of unlawful employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
BACKGROUND
During the period at issue, Complainant worked as a Claims Assistant at the Agency's West Los Angeles Health Care System facility in Los Angeles, California.
On July 27, 2015, Complainant filed the instant formal complaint. Therein, Complainant alleged that the Agency subjected him to discrimination on the bases of race, sex, disability, age, and in reprisal for prior EEO activity when:
a. beginning December 2014 until present, his request for a reasonable accommodation has been delayed; and
b. on June 24, 2015, he was charged 4.75 hours of Absence Without Leave (AWOL); and
c. on July 21, 2015, his request for annual leave and Leave Without Pay (LWOP) was denied.
In its September 10, 2015 final decision, the Agency dismissed the formal complaint for stating the same claims that were raised in a prior EEO complaint, pursuant to 29 C.F.R. � 1614.107(a)(1). Specifically, the Agency found that instant formal complaint raises the same matter in Agency Case No. 200P-0691-2015101811.
The Agency also dismissed the formal complaint for failure to state a claim, pursuant to 29 C.F.R. � 1614.107(a)(1).
The instant appeal followed.
ANALYSIS AND FINDINGS
Same claims
EEOC Regulation 29 C.F.R. � 1614.107(a)(1) provides for the dismissal of a complaint that states the same claims that is pending before or has been decided by the Commission or the Agency. The Commission has consistently held that in order form a formal complaint to be dismissed as identical, the elements of the complaint must be identical to the elements of the prior complaint in time, place, incidents, and parties. See Jackson v. USPS, EEOC Appeal No. 01955890 (April 5, 1996).
The Agency dismissed the formal complaint on the grounds that Complainant raised the same matter in a previously filed EEO complaint (Agency Case No. 200P-0691-2015101811). However, the record does not contain a copy of Agency Case No. 200P-0691-2015101811. Clearly, it is the burden of the Agency to have proof in support of its decision. See Marshall v. Department of the Navy, EEOC Request No. 05910685 (September 6, 1991). Therefore, the Agency improperly dismissed the formal complaint on the grounds that it states the same claims that were raised in a previously filed EEO complaint.
Failure to state a claim
The Agency improperly fragmented Complainant's claim of ongoing discriminatory harassment/hostile work environment by dismissing the formal complaint for failure to state a claim. A fair reading of the complaint, Complainant claimed that he was subjected to a series of related incidents of harassment when since December 2014, his reasonable accommodation request has been delayed, was charged 4.75 hours of AWOL and his request for annual leave and LWOP was denied.
As a remedy, Complainant requested to be "reassigned to any one of the following positions Contract Specialist, Human Resource, Public Relations and $300,000 for personal and to include punitive damages," his AWOL charge be rescinded and attorney's fees. These matters, taken together, state an actionable claim of harassment. By alleging a pattern of harassment, Complainant has stated a cognizable claim under the EEOC regulations. See Cervantes v. USPS, EEOC Request No. 05930303 (November 12, 1993).
Moreover, we note that the instant complaint can be reasonably construed as a denial of reasonable accommodation. EEOC Compliance Manual, Section 2, "Threshold Issues," EEOC Notice 915.003, at 2-73 (July 21, 2005), provides that "because an employer as an ongoing obligation, to provide a reasonable accommodation, failure to provide such an accommodation constitutes a violation each time the employee needs it." See e.g. Peacock v. USPS, EEOC Appeal No. 0120082372 (July 31, 2008).
Accordingly, we REVERSE the Agency's dismissal of the formal complaint for stating the same claim and for failure to state a claim, defined herein as a harassment claim, and we REMAND this matter to the Agency for further processing in accordance with the ORDER below.
ORDER (E0610)
The Agency is ordered to process the remanded claims (harassment/hostile work environment and denial of reasonable accommodation) in accordance with 29 C.F.R. � 1614.108 et seq. 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 (M0610)
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 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 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
January 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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